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id_47	8	We, however, make it clear that we are not here to give a clean chit to any, or all of the Fair Price Shop owners with regard to their business dealings, and our aforesaid observations have been made in the context of the petitioners' grievance that the generalized allegations made by the Government of National Capital Territory of Delhi (GNCTD) as aforesaid have not been substantiated, and, before us, the GNCTD has not placed materials, and has not drawn our attention to such materials which could lead to such generalized inferences establishing the aforesaid allegations against all the Fair Price Shop owners., At the same time, we may observe that even if the existing Targeted Public Distribution System (TPDS) were to work flawlessly, that would not debar the GNCTD from introducing door‑to‑door delivery of foodgrains to the beneficiaries, as we have already discussed hereinabove. The GNCTD can do it out of its own resources, while adequately addressing the concerns with regard to financial viability of the existing Fair Price Shop owners and dealers., At this stage, we may notice that on the one hand, the GNCTD has made the aforesaid allegations, while on the other hand, it appears from the correspondences addressed by the Central Government to the GNCTD that the GNCTD has not discharged its statutory obligations of maintaining vigilance over the functioning of the Fair Price Shop system., We have already noticed the correspondence undertaken by the Central Government, inter alia, on 17.06.2021, wherein the Central Government stated that the GNCTD was in non‑compliance with inter alia Sections 28, 29 and 30 of the National Food Security Act (NFSA). Section 28 obliges every local authority, or any other authority or body authorized by the State Government, to conduct periodic social audits of the functioning of Fair Price Shops, the Targeted Public Distribution System and other welfare schemes, and to publicise its findings and take necessary action. Section 29 obliges the State Government to set up Vigilance Committees as specified in the PDS (Control) Order, 2001 for ensuring transparency and proper functioning of the Targeted Public Distribution System and accountability of the functionaries in such system. The Vigilance Committees have to be set up at the State, District, Block and Fair Price Shop levels. In the aforesaid communication, the Central Government stated that the GNCTD had not set up the Vigilance Committees at the Fair Price Shop level, which was stated to be the most important level for monitoring implementation of the NFSA at the grass‑root level., We have consciously taken note of the relevant provisions under the NFSA and the other subordinate legislations noted hereinabove, which deal with the obligations of the State Government to maintain vigilance and accountability, and also to deal with the grievances of the beneficiaries in the matter of distribution of foodgrains made available under the NFSA, through the TPDS. It appears that there is merit in the submission of Mr. Shrivastav, that rather than discharging its duties of maintaining vigilance in terms of the provisions of the NFSA and redressing grievances of the beneficiaries under the NFSA, which itself would make the current TPDS system piloted by the Fair Price Shop owners more efficient and transparent, the respondent GNCTD has chosen to introduce the impugned scheme with a view to bypass the existing Fair Price Shop network, and replace the same with another set of persons, who would be appointed as Fair Price Shop owners, and who would have much deeper pockets., At this stage, we may also take note of the observations made by the Lieutenant Governor in his notings dated 20.03.2018 (at page 29/N of the noting file), wherein he observed at paragraph 105 as follows: In this context, I note that the Finance Department has observed that the proposed system of home delivery of ration will only replace one set of human intervention with the other i.e. service providers and their agents. Hence, diversion of ration materials and corruption may not be eliminated under the proposed scheme. The best option would be adoption of the Direct Benefit Transfer (DBT), where the money would be directly transferred to the bank account of the beneficiary, thus totally eliminating middlemen. The Finance Department has also noted that an expenditure of about Rs. 250 crore per annum is likely to be incurred on the home delivery scheme, and if DBT is adopted, the beneficiaries can procure an additional 5 kg of Atta per family per month, with the money so saved. For the poor marginalised sections of society, this additional 5 kg of Atta per family per month would be a huge welfare measure resulting from adoption of DBT. Therefore, in my view, the suggestion of the Finance Department is worth considering., This aspect, raised by the Lieutenant Governor, has not been addressed by Dr. Singhvi. It is not disclosed how the impugned scheme would plug the loopholes, reduce pilferage and diversion of foodgrains/atta into the black market., Dr. Singhvi, in support of the impugned scheme, has sought to place reliance on the doorstep delivery scheme introduced by the Government of Andhra Pradesh. He has also placed reliance on the decision of the Calcutta High Court dated 15.09.2021 in Mrityunjoy Garang (supra). In our view, these reliances are misplaced, for the reason that both in the State of Andhra Pradesh and in the State of West Bengal, the schemes introduced by the State Governments envisaged the delivery of the ration articles by the Fair Price Shop owners, and not through systems which bypass the existing Fair Price Shop network, which is the precise issue we are confronted with., The submission of Dr. Singhvi, premised upon P.P. Suresh (supra), appears to be misplaced. There can be no quarrel with the proposition that the Government has freedom to change its policy in public interest with passage of time, and overriding public interest would be a good reason to justify change in policy which overrides the claim of legitimate expectations of those affected by such change in policy. However, the same judgment also contains the caveat that, while observing, so long as the Government does not act in an arbitrary or unreasonable manner, the change in policy does not call for interference by judicial review on the ground of the legitimate expectations of an individual or a group of individuals being defeated., In the present cases, we are concerned with the issue whether the impugned policy sought to be introduced by the GNCTD is arbitrary, unreasonable, unconstitutional or illegal. We have already found that the impugned scheme is in breach of the statutory protection afforded to the existing Fair Price Shop owners and licencees, and it is founded upon unsubstantiated generalized conclusions that all Fair Price Shop owners and licencees are indulging in malpractices, as taken note of hereinabove. The petitioners have not founded their claim in these petitions on the plea of legitimate expectations alone and, therefore, the decision in P.P. Suresh (supra) is of no avail to the respondent GNCTD. The decision in Laxminarayan Chopra (supra) is also of no avail, for the reason that we have come to the conclusion that it is open to the respondent GNCTD to introduce a scheme for doorstep delivery of ration to the beneficiaries under the TPDS. The question, however, is whether the manner in which the respondent GNCTD has sought to introduce the said doorstep delivery scheme of ration to beneficiaries stands the scrutiny of law. We have found that it does not. For the same reason, International Trading Co. (supra) is of no avail. For the same reason, we are of the view that the decisions relied upon by Dr. Singhvi in All Kerala Online Lottery Dealers Association (supra); Rajeev Suri (supra); BALCO Employees Union (Regd.) (supra) and Punjab State (supra) are of no avail., No doubt, judicial review in matters of policy decisions of the Government is confined to a narrow sphere as urged by Dr. Singhvi. It is not for the Courts to either frame the policy for the Government, or to evaluate its efficacy, or question the wisdom of the Government in not coming out with one or the other policy. However, that does not preclude the Court from examining issues with regard to competence, legality and constitutionality of the policy, or of any part thereof, if a challenge is raised to the same before the Court. Reliance placed by Dr. Singhvi on several orders taken note of in paragraph 119 hereinabove, are also of no avail for the aforesaid reason., We may now proceed to consider the issue whether the impugned scheme is capable of being put into execution or implementation, when the same has been objected to by the Lieutenant Governor, and the Central Government has not been required to examine the difference of opinion between the Council of Ministers headed by the Chief Minister on the one hand, and the Lieutenant Governor on the other hand., India, i.e., Bharat, is a Union of States. The States and the territories thereof are specified in the First Schedule to the Constitution of India. The territory of India comprises the territories of the States; the Union Territories specified in the First Schedule; and such other territories as may be acquired (see Article 1 of the Constitution of India). The First Schedule to the Constitution enlists, inter alia, the Union Territories. Delhi is enlisted under the list of Union Territories. Thus, Delhi is a Union Territory. Part VIII of the Constitution of India deals with the Union Territories. It begins with Article 239. Article 239 of the Constitution of India deals with the aspect of administration of Union Territories, and states that every Union Territory shall be administered by the President acting to such extent as he thinks fit, through an Administrator to be appointed by him, with such designation as he may specify., In relation to the Union Territory of Delhi, Article 239AA makes a special provision and states that as from the date of commencement of the Constitution (Sixty‑ninth Amendment) Act, 1991 (the date of commencement being 01.02.1992), the Union Territory of Delhi shall be called the National Capital Territory of Delhi, and the Administrator thereof appointed under Article 239 shall be designated as the Lieutenant Governor. The Government of National Capital Territory of Delhi (GNCTD) has a Legislative Assembly and seats in the Assembly are filled by the members chosen by direct election from territorial constituencies in the National Capital Territory of Delhi by virtue of Article 239AA(2)., While sub‑Article (3)(a) of Article 239AA empowers the Legislative Assembly of the National Capital Territory of Delhi to make laws for the whole, or any part of the National Capital Territory in respect of matters enumerated in the State List or in the Concurrent List (insofar as any such matter is applicable to Union Territories, except matters with respect to Entries 1, 2 and 18 of the State List and Entries 64, 65 and 66 of that list insofar as they relate to the said Entries 1, 2 and 18), Clause (b) of the same sub‑Article states that nothing in sub‑clause (a) shall derogate from the powers of Parliament under this Constitution to make laws with respect to any matter for a Union Territory or any part thereof. Thus, it appears to us that Clause (b) seeks to make it clear that the powers of Parliament to make laws on any matter, even those enumerated in the State List, are recognized in respect of the National Capital Territory of Delhi, or any part thereof, in the same way as the Parliament exercises the legislative power in respect of any other Union Territory. The effect of Clause (b) is that though the Legislative Assembly of the National Capital Territory of Delhi may make laws in respect of matters taken note of hereinabove, there is no matter over which the powers of the Legislative Assembly are exclusive. Parliament can make laws in respect of the Union Territory of the National Capital Territory of Delhi, or any part thereof, in respect of all matters., Clause (c) of sub‑Article (3) of Article 239AA maintains the supremacy of Parliament over the Legislative Assembly of the National Capital Territory of Delhi, by providing that in case of repugnancy of any law made by the Legislative Assembly with the law made by Parliament on the same matter, whether passed before or after the law made by the Legislative Assembly, the law made by Parliament shall prevail, and the law made by the Legislative Assembly shall, to the extent of repugnancy, be void. We are not concerned with the two provisos to Clause (c) of sub‑Article 3 of Article 239AA and we are, therefore, not taking note of them., Before proceeding further, we may observe that while sub‑Article (3) deals with the aspect of legislative competence, scope of authority of the Legislative Assembly to make laws, and the limitation on the legislative powers of the Legislative Assembly, sub‑Article (4) of Article 239AA deals with the aspect of the executive power of the Council of Ministers headed by the Chief Minister, on whose aid and advice the Lieutenant Governor functions, in relation to the matters with respect to which the Legislative Assembly has power to make laws., Sub‑Article (4) of Article 239AA, inter alia, states that there shall be a Council of Ministers with the Chief Minister at the head, to aid and advise the Lieutenant Governor in the exercise of his functions in relation to matters with respect to which the Legislative Assembly has power to make laws, except insofar as he is, by or under any law, required to act in his discretion., Article 73 and Article 162 lay down the extent of executive power of the Union and the executive power of a State respectively. In their material part, they are similar inasmuch as they state that the executive power of the Union shall extend to the matters with respect to which Parliament has power to make laws and, similarly, the executive power of a State shall extend to matters with respect to which the Legislature of the State has power to make laws. So far as the Concurrent List is concerned, i.e., matters with respect to which the Legislature of the State and Parliament both have power to make laws, the executive power of the State is subject to, and limited by, the executive power expressly conferred by the Constitution, or by any law made by Parliament upon the Union, or authorities thereof. However, it appears that sub‑Article (4) of Article 239AA seeks to tweak the aforesaid general norm qua the executive power of the Council of Ministers headed by the Chief Minister, when it comes to the Union Territory of Delhi, since the National Capital Territory of Delhi is not a State., In this regard, we may take note of the proviso to Article 239AA(4), which reads: Provided that in the case of difference of opinion between the Lieutenant Governor and his Ministers on any matter, the Lieutenant Governor shall refer it to the President for decision and act according to the decision given thereon by the President and pending such decision it shall be competent for the Lieutenant Governor, in any case where the matter, in his opinion, is so urgent that it is necessary for him to take immediate action, to take such action or to give such direction in the matter as he deems necessary., Thus, even in respect of matters over which the Legislative Assembly has power to make laws for the National Capital Territory of Delhi, the executive powers of the Council of Ministers headed by the Chief Minister are not unfettered. In cases where differences arise between the Council of Ministers on the one hand, and the Lieutenant Governor on the other hand, the executive decision of the Council of Ministers is liable to be referred to the President for his decision. The Lieutenant Governor shall then act according to that decision of the President. Pending such decision, in case urgency requires the Lieutenant Governor to act, he may act and give directions in the matter as he deems necessary., The Constitution Bench of the Supreme Court in State (NCT of Delhi) (supra) has extensively considered the aforesaid provisions in relation to the National Capital Territory of Delhi. We have extracted some of the conclusions drawn in the said decision hereinabove, which were relied upon by Dr. Singhvi. The conclusions drawn in paragraphs 284.13 to 284.23 of the majority judgment rendered by the Hon’ble Chief Justice of India, A.K. Sikri and A.M. Khanwilkar, JJ., are most relevant, and may be referred to at this stage. At the cost of some repetition, we reproduce the same hereinbelow., 284.13. With the insertion of Article 239‑AA by virtue of the Sixty‑ninth Amendment, Parliament envisaged a representative form of Government for the National Capital Territory of Delhi. The provision intends to provide for the Capital a directly elected Legislative Assembly which shall have legislative powers over matters falling within the State List and the Concurrent List, barring those excepted, and a mandate upon the Lieutenant Governor to act on the aid and advice of the Council of Ministers except when he decides to refer the matter to the President for final decision. 284.14. The interpretative dissection of Article 239‑AA(3)(a) reveals that Parliament has the power to make laws for the National Capital Territory of Delhi with respect to any matters enumerated in the State List and the Concurrent List. At the same time, the Legislative Assembly of Delhi also has the power to make laws over all those subjects which figure in the Concurrent List and all, but three excluded subjects, in the State List. 284.15. A conjoint reading of clauses (3)(a) and (4) of Article 239‑AA divulges that the executive power of the Government of NCTD is coextensive with the legislative power of the Delhi Legislative Assembly and, accordingly, the executive power of the Council of Ministers of Delhi spans over all subjects in the Concurrent List and all, but three excluded subjects, in the State List. However, if Parliament makes law in respect of certain subjects falling in the State List or the Concurrent List, the executive action of the State must conform to the law made by Parliament. 284.16. As a natural corollary, the Union of India has exclusive executive power with respect to the National Capital Territory of Delhi relating to the three matters in the State List in respect of which the power of the Delhi Legislative Assembly has been excluded. In respect of other matters, the executive power is to be exercised by the Government of NCTD. This, however, is subject to the proviso to Article 239‑AA(4) of the Constitution. Such an interpretation would be in consonance with the concepts of pragmatic federalism and federal balance by giving the Government of NCTD some required degree of independence subject to the limitations imposed by the Constitution. 284.17. The meaning of aid and advise employed in Article 239‑AA(4) has to be construed to mean that the Lieutenant Governor of NCTD is bound by the aid and advice of the Council of Ministers and this position holds true so long as the Lieutenant Governor does not exercise his power under the proviso to clause (4) of Article 239‑AA. The Lieutenant Governor has not been entrusted with any independent decision‑making power. He has to either act on the aid and advice of the Council of Ministers or he is bound to implement the decision taken by the President on a reference being made by him. 284.18. The words any matter employed in the proviso to clause (4) of Article 239‑AA cannot be inferred to mean every matter. The power of the Lieutenant Governor under the said proviso represents the exception and not the general rule which has to be exercised in exceptional circumstances by the Lieutenant Governor keeping in mind the standards of constitutional trust and morality, the principle of collaborative federalism and constitutional balance, the concept of constitutional governance and objectivity and the nurtured and cultivated idea of respect for a representative Government. The Lieutenant Governor should not act in a mechanical manner without due application of mind so as to refer every decision of the Council of Ministers to the President. 284.19. The difference of opinion between the Lieutenant Governor and the Council of Ministers should have a sound rationale and there should not be exposition of the phenomenon of an obstructionist but reflection of the philosophy of affirmative constructionism and profound sagacity and judiciousness. 284.20. [Ed.: Para 284.20 corrected vide Official Corrigendum No. F‑3/Ed.B.J./56/2018 dated 19‑11‑2018.] The procedure to be followed by the Lieutenant Governor in case of difference between him and his Ministers. The Lieutenant Governor and the Council of Ministers must attempt to settle any point of difference by way of discussion and dialogue. By contemplating such a procedure, the 1993 TBR suggest that the Lieutenant Governor must work harmoniously with his Ministers and must not seek to resist them at every step of the way. The need for harmonious resolution by discussion is recognised especially to sustain the representative form of governance as has been contemplated by the insertion of Article 239‑AA. 284.21. The scheme that has been conceptualised by the insertion of Articles 239‑AA and 239‑AB read with the provisions of the GNCTD Act, 1991 and the corresponding 1993 TBR indicates that the Lieutenant Governor, being the administrative head, shall be kept informed with respect to all the decisions taken by the Council of Ministers. The terminology ‘send a copy thereof to the Lieutenant Governor’, ‘forwarded to the Lieutenant Governor’, ‘submitted to the Lieutenant Governor’ and ‘cause to be furnished to the Lieutenant Governor’ employed in the said Rules leads to the only possible conclusion that the decisions of the Council of Ministers must be communicated to the Lieutenant Governor but this does not mean that the concurrence of the Lieutenant Governor is required. The communication is imperative so as to keep him apprised in order to enable him to exercise the power conferred upon him under Article 239‑AA(4) and the proviso thereof. 284.22. The authorities in power should constantly remind themselves that they are constitutional functionaries and they have the responsibility to ensure that the fundamental purpose of administration is the welfare of the people in an ethical manner. There is requirement of discussion and deliberation. The fine nuances are to be dwelled upon with mutual respect. Neither of the authorities should feel that they have been lionised. They should feel that they are serving the constitutional norms, values and concepts. 284.23. Fulfilment of constitutional idealism ostracising anything that is not permissible by the language of the provisions of the Constitution and showing veneration to its sense, spirit and silence is constitutional renaissance. It has to be remembered that our Constitution is a constructive one. There is no room for absolutism. There is no space for anarchy. Sometimes it is argued, though in a different context, that one can be a rational anarchist, but the said term has no entry in the field of constitutional governance and rule of law. The constitutional functionaries are expected to cultivate the understanding of constitutional renaissance by realisation of their constitutional responsibility and sincere acceptance of the summons to be obedient to the constitutional conscience with a sense of reawakening to the vision of the great living document so as to enable true blossoming of the constitutional ideals. The Lieutenant Governor and the Council of Ministers headed by the Chief Minister are to constantly remain alive to this idealism., Thus, the Lieutenant Governor would be expected to normally act on the aid and advice of his Council of Ministers in respect of matters on which the Legislative Assembly may legislate. The difference of opinion between the Council of Ministers and the Lieutenant Governor is expected to be the exception, and not the norm. The Lieutenant Governor should not act in a mechanical manner, without due application of mind, thereby referring every decision of the Council of Ministers to the President. The difference of opinion between the Council of Ministers and the Lieutenant Governor should have a sound rationale, and it should not be resorted to only to obstruct the implementation of the decisions of the Council of Ministers, but should be founded upon affirmative constructionism, and profound sagacity and judiciousness. At the same time, it is obligatory on the Council of Ministers to keep the Lieutenant Governor abreast with all their decisions, to enable him to exercise the power conferred upon him under Article 239AA(4) and the proviso thereof., We may now proceed to examine whether, in the facts of the present case, the conduct of the Lieutenant Governor satisfies the standards of constitutional trust and morality, the principle of collaborative federalism, and constitutional balance so eloquently explained in the aforesaid judgment. We will examine whether the conduct of the Lieutenant Governor satisfies the concept of constitutional governance and objectivity, and displays adherence to respect for a representative Government. We will examine whether the Lieutenant Governor could be said to have acted in a mechanical manner, without due application of mind, while requiring his Council of Ministers to refer the matter in relation to the formulation of the impugned scheme to the President, or whether his action can be described as that of an obstructionist. We will examine whether the difference of opinion has a sound rationale, and whether it reflects the philosophy of affirmative constructionism, and profound sagacity and judiciousness., The record shows that on 10.03.2018, the Lieutenant Governor was communicated the Cabinet decision number 2561, dated 06.03.2018. This decision was to implement the proposal for home delivery of ration. The Council of Ministers approved the proposal contained in the Cabinet Note to implement the home delivery of ration under the TPDS in the National Capital Territory of Delhi., The aforesaid Cabinet decision was placed before the Lieutenant Governor, and on 20.03.2018, he expressed the view, as already taken note of in paragraph 70 hereinabove. The following points were noted by the Lieutenant Governor: 104. An efficient public distribution system would ensure that while no eligible beneficiary is denied his/her quota of ration, at the same time, no ineligible person could misuse the facility. There should not be any diversion of foodgrains meant for the needy and the poor. The entire system should function in the most efficient, cost‑effective and transparent manner. 105. In this context, I note that the Finance Department has observed that the proposed system of home delivery of ration will only replace one set of human intervention with the other i.e. service providers and their agents. Hence, diversion of ration materials and corruption may not be eliminated under the proposed scheme. The best option would be adoption of the Direct Benefit Transfer (DBT), where the money would be directly transferred to the bank account of the beneficiary, thus totally eliminating middlemen. The Finance Department has also noted that an expenditure of about Rs. 250 crore per annum is likely to be incurred on the home delivery scheme, and if DBT is adopted, the beneficiaries can procure an additional 5 kg of Atta per family per month, with the money so saved. For the poor marginalised sections of society, this additional 5 kg of Atta per family per month would be a huge welfare measure resulting from adoption of DBT. Therefore, in my view, the suggestion of the Finance Department is worth considering. 106. The Finance Department has also raised the issue of managing the existing contract with Bharat Electronics Limited and the financial implications on this account, because there are commitments on account of rental charges payable in respect of point‑of‑sale machines, weighing scales and iris devices. 107. The Cabinet Note mentions that the GNCTD and some States had distributed fortified whole wheat atta during 2012‑13 (249/C), but results were not encouraging. No reasons for failure of the earlier scheme or lessons learnt have been placed on record. As such, it is not clear how the present proposal would improve upon the previous experiment. While making such a big change in a critical sector that directly impacts the weakest sections of society, I would expect that all due diligence is carried out. 108. The Cabinet Note, in its SWOT analysis of the proposal, brings out several potential threats and weaknesses. The department has also noted (para 74) that the introduction of the scheme has potential operational and implementation risks and it should be implemented initially on a pilot basis. 109. Further, the letter dated 01.02.2018 (114/C) of the Government of India provides for home delivery as one of the two options, only as a special dispensation for a category of beneficiaries who are above 65 years of age or are differently abled, have no other adult family member listed in the ration card and are not in a position to visit the Fair Price Shop themselves.
id_47	9	In Targeted Public Distribution Scheme (TPDS), the Central Government plays a major role in implementation including procurement, storage, distribution and bulk allocation of foodgrains. The entire TPDS is being implemented under the National Food Security Act, 2013. The Law Department in its note (21/N) has pointed out that introduction of the proposed scheme would require prior approval of the Central Government under Section 12(2)(h) of the said Act. The department made a reference on 12 January 2018 to the Central Government (42/C). It is learnt that the Government of India has requested the Government of National Capital Territory of Delhi to forward a copy of the proposed scheme and circulars/guidelines issued in this regard, for proper examination and furnishing of comments., Therefore, I would advise that the proposal of home delivery of ration under TPDS may be referred to the Government of India with full details including all implementation issues, before a final decision is taken., The gist of the view expressed by the Lieutenant Governor was that the proposed system of home delivery of ration will only replace one set of human intervention with another, i.e., the service providers and their agents. Hence, diversion of ration materials and corruption may not be eliminated under the proposed scheme. He was of the view that the suggestion of the Finance Department to resort to Direct Benefit Transfer (DBT) was worth considering, as that would save additional expenditure of about Rs. 250 crore per annum, and if the said amount is distributed through DBT, the beneficiaries would be able to procure an additional 5 kg of atta per family per month. The Lieutenant Governor also expressed his concern, inter alia, that the proposed change was a big change in a critical sector that directly impacts the weakest section of society, and that it called for the carrying out of all due diligence. He also notes the view of the Department of Law of the Government of National Capital Territory of Delhi that the scheme would require prior approval of the Central Government, under Section 12(2)(h) of the Act. In paragraph 111 of the file noting, he advised that the proposal of home delivery of ration under the TPDS may be referred to the Government of India with full details including all implementation issues, before a final decision is taken., The record shows that on 22 May 2021, the Food Supplies Officer (Policy) placed the proposal for doorstep delivery of ration at the doorstep of the beneficiaries after rescinding the earlier MMGGRY Scheme notified on 20 February 2021, and by seeking to extend the spirit of the letters dated 3 November 2014 and 1 February 2018 to not just a few limited classes of beneficiaries, but to all beneficiaries under the TPDS. The Government of National Capital Territory of Delhi sought to place reliance on similar steps taken by the Government of Andhra Pradesh and the Government of Haryana. It provided the draft notification on home delivery of processed and packed NFSA rations under TPDS. The record shows that the proposal was cleared by the Council of Ministers, and on 24 May 2021, the Chief Minister placed the matter before the Lieutenant Governor to kindly decide whether he would like to invoke his powers under the proviso to Article 239AA(4) of the Constitution. The Lieutenant Governor, on 2 June 2021, recorded his decision on the proposal as follows:, I have perused the proposal and observed that in an earlier proposal of the scheme of doorstep delivery of ration, I had advised vide note dated 20 March 2018 in file no.2 (172) F&S/IT/2017-18 (CD no. 000470456) that the proposal of home delivery of ration may be referred to the Government of India as per Section 12(2)(h) of the National Food Security Act, 2013 with full details before a final decision is taken (copy placed at C/54-55). However, no approval of the Government of India is placed on record. Hence, it is again advised that the above proposal of home delivery of ration may kindly be referred to the Government of India for approval in accordance with the above provision of the NFSA, 2013., Incidentally I may also mention that a writ petition WP(C) 2037/2021 in the above matter has been filed by the Delhi Sarkari Ration Sangh in the Hon'ble High Court of Delhi challenging the proposed arrangement of doorstep delivery of ration by the Government of National Capital Territory of Delhi, wherein the Union of India is also a party. The next date of hearing in the matter is 20 August 2021. The file is accordingly returned for reconsideration to the Hon'ble Chief Minister., From the aforesaid, it is seen that the Lieutenant Governor reiterated his earlier decision, requiring his Council of Ministers to seek the approval of the Government of India on the difference of opinion between him and his Council of Ministers with regard to the implementation of the doorstep delivery of ration to the TPDS beneficiaries. This time, he also took note of the pendency of the present writ petition being WP(C) 2037/2021., The file noting shows that the Chief Minister, on 16 June 2021, recorded in paragraphs 17 and 18 at Page 6/N as follows: 'I have perused the note of Hon'ble Lieutenant Governor.' and 'There appears to be a serious misunderstanding. The instant matter before Hon'ble Lieutenant Governor is not approval of the scheme of doorstep delivery of ration. The scheme has already attained finality.', Thus, the stand of the Chief Minister was that the doorstep delivery of ration scheme had already attained finality, and the matter was not referred to the Lieutenant Governor for his approval of the scheme. In the same office noting, in paragraph 26, the Chief Minister recorded that the Lieutenant Governor's insistence on referring the matter to the Central Government for its approval does not appear correct. The approval of the Central Government is neither mandated nor necessary. As explained above, we have merely implemented Central Government's orders. Further, the Delhi Government, through several communications, has been informing and seeking assistance of the Central Government from time to time for the implementation of this doorstep delivery scheme., On the heels of the aforesaid noting dated 16 June 2021 made by the Chief Minister of Delhi, the Government of India sent two communications dated 17 June 2021 and 22 June 2021, of which we have already taken notice in the earlier part of the judgment. By these communications, the Government of India pointed out several non‑compliances of the Act by the Government of National Capital Territory of Delhi, and also commented on the proposed home delivery scheme., Post the issuance of the aforesaid two communications, the matter was again considered by the Lieutenant Governor on 24 June 2021. He made reference to the letter dated 22 June 2021 of the Department of Food & Public Distribution, Ministry of Consumer Affairs, Food and Public Distribution, Government of India, and observed that the proposed scheme has not been accepted by the Ministry, as it did not meet the statutory and functional requirements of the NFSA. He advised that the directions issued by the Government of India with regard to the implementation of the NFSA may be complied with by the Food and Supply Department, Government of National Capital Territory of Delhi., The Chief Minister, yet again, made his noting on 1 July 2021. The Chief Minister again sought the view of the Lieutenant Governor on whether he differs with the draft notification of the scheme for doorstep delivery of ration, or not. The notings at Page 13/N read as follows: 'With respect to the advice of Hon'ble Lieutenant Governor, I again humbly submit that the instant matter relates to the draft notification at 49-53/C on the scheme of doorstep delivery of ration. Hon'ble Lieutenant Governor may kindly indicate whether he differs with the said notification or not.' and 'Hon'ble Lieutenant Governor has given certain directions. It is most humbly submitted that as per the judgment of the Constitution Bench of the Hon'ble Supreme Court dated 4 July 2018, Hon'ble Lieutenant Governor does not have the powers to give any directions on the transferred subjects, unless Hon'ble Lieutenant Governor has referred the matter to the President under the proviso to Article 239AA(4).' and 'The letter from the Central Government is being examined and necessary action will be undertaken as per law.', On 2 July 2021, the Assistant Commissioner from the Department of Food, Supplies & Consumer Affairs of the Government of National Capital Territory of Delhi sent a communication to the Government of India, with a copy to the Principal Secretary to the Lieutenant Governor, stating that the Government has decided to implement distribution of both NFSA and PMGKAY ration to all NFSA beneficiaries in Delhi, including migrants through ePoS devices. In this communication, it was stated that the Department has complied with both the directions under Section 38 of the NFSA Act, and the other issues raised under Sections 28 and 29 are being taken up separately, and the progress report will be shared shortly in due course of time., The aforesaid noting made by the Chief Minister on 1 July 2021 was responded to by the Lieutenant Governor on 26 July 2021 as follows: (i) Reference observations of Hon'ble Chief Minister, at pre‑page. (ii) In the first instance, it is pointed out that my observation at page 12/N has been misunderstood as direction though it was only a conciliatory advice in sync with the observations of the Hon'ble Supreme Court (Constitution Bench) judgment dated 4 August 2018, wherein the Hon'ble Supreme Court emphasized that there is a requirement of discussion and deliberations and that fine nuances are to be dwelled upon with mutual respect. (iii) Keeping in view the provisions of the National Food Security Act 2013, the Department of Food and Public Distribution, Ministry of Consumer Affairs & Public Distribution, Government of India, vide letter dated 22 June 2021, has already conveyed its concerns and decision on the proposed scheme of doorstep delivery of ration. This communication of the Central Government appears to be in accordance with Section 38 of the National Food Security Act, 2013. (iv) It is noted that the above communication dated 22 June 2021 of the Central Government has not yet been considered by the Council of Ministers, Government of National Capital Territory of Delhi. Therefore, in case the Hon'ble Chief Minister, GNCTD still differs, I would request the Hon'ble Chief Minister, GNCTD to refer this matter to the Council of Ministers for its consideration and decision in accordance with Rule 49 of the Territorial Board Rules, 1993 read with Section 45(c) of the Government of NCT of Delhi Act, 1991., When we examine the aforesaid exchange of views, which have taken place between the Council of Ministers/Chief Minister on the one hand and the Lieutenant Governor on the other hand, we find that when the scheme was initially placed for approval of the Lieutenant Governor on 20 March 2018, he made known the reasons for his view as to why he did not agree with the proposed scheme, and what were the reasons for his difference of opinion with regard to the proposed scheme. In our view, in judicial scrutiny, we are not called upon to return a finding whether the reasons for difference of opinion expressed by the Lieutenant Governor are correct and sustainable, or not. We are only called upon to see whether the conduct of the Lieutenant Governor could be said to satisfy the standards of constitutional trust and morality, and the principle of collaborative federalism and constitutional balance. As noticed hereinabove, the Central Government issued yet another communication dated 8 October 2021 reiterating the position of the Central Government, and calling upon the Government of National Capital Territory of Delhi to strictly adhere to the mandatory requirements of the NFSA., We may observe that even if the opinion of the Lieutenant Governor for expressing his difference of opinion is eventually not agreed to by the President, and the President decides to go with the decision of the Council of Ministers, that by itself would not mean that the opinion of the Lieutenant Governor could be described as falling foul of the standards of constitutional trust and morality; the principles of collaborative federalism, and constitutional balance. This is for the reason that there could be genuine and bona fide difference of opinion on account of fundamental and serious difference of approach of the Council of Ministers on the one hand and the Lieutenant Governor on the other hand., It is only where it appears to the Court that the expressed reasons are no reasons in the eyes of law, i.e., they are arbitrary, whimsical, unreasonable, suffer from non‑application of mind, or are demonstrative of obstructionist attitude and conduct, which do not accord with the standards of constitutional trust and morality, the principles of collaborative federalism, and constitutional balance, that the Court would draw an inference that the difference of opinion expressed by the Lieutenant Governor is an exposition of the phenomenon of an obstructionist and not reflective of the philosophy of affirmative constructionism and profound sagacity and judiciousness, as expressed by the Supreme Court in State (NCT of Delhi) (supra)., The Council of Ministers does not appear to have answered the issues raised by the Lieutenant Governor in his note/decision dated 20 March 2018. The Council of Ministers did not answer how the replacement of one set of human intervention with another, as proposed under the scheme, would improve upon aspects of diversion of ration materials and corruption and eliminate the same. The issue raised by the Lieutenant Governor, premised upon the observations of the Finance Department, that the best option would be the adoption of Direct Benefit Transfer (DBT), as that would totally eliminate middlemen and also save expenditure of Rs. 250 crore per annum which, in turn, can provide additional 5 kg of atta per family per month with the money saved, has not been addressed by the Council of Ministers in any of the subsequent decisions and notings. The observations that it was not clear how the proposed scheme would improve upon the previous experiments, and that a big change in a critical sector that directly impacts the weakest section of society requires due diligence to be carried out, also do not appear to have been responded to by the Council of Ministers. The Lieutenant Governor also relied upon the noting of the Law Department that the proposed scheme would require prior approval of the Central Government under Section 12(2)(h) of the Act. To examine whether reliance placed by the Lieutenant Governor on the said note of the Law Department is reasonable, we may reproduce Section 12(2)(h) of the Act:, Section 12 of the National Food Security Act reads: (1) The Central and State Governments shall endeavour to progressively undertake necessary reforms in the Targeted Public Distribution System in consonance with the role envisaged for them in this Act. (2) The reforms shall, inter alia, include (h) introducing schemes, such as cash transfer, food coupons, or other schemes, to the targeted beneficiaries in order to ensure their foodgrain entitlements specified in Chapter II, in such area and manner as may be prescribed by the Central Government., Reading of the aforesaid provision shows that introduction of schemes, such as cash transfer, food coupons or other schemes can be done in such area and manner as may be prescribed by the Central Government. From the point of view of the Lieutenant Governor, firstly, he was entitled to rely upon the file noting made by the Law Department. Secondly, even on a plain reading of the aforesaid provision, it cannot be said that the view expressed by the Law Department was wholly incorrect or unsustainable and, therefore, the Lieutenant Governor acted without due application of his own mind, or that he blindly followed the file noting made by the Law Department. The manner in which the scheme may be introduced to reform the TPDS appears to require the approval of the Central Government as the said manner has to be prescribed by the Central Government. Thus, the Lieutenant Governor appears to be justified in relying upon the note of the Law Department in relation to the understanding of Section 12(2)(h)., We may refer to Article 239AA(3)(b) of the Constitution, which reads: '(b) Nothing in sub‑clause (a) shall derogate from the powers of Parliament under this Constitution to make laws with respect to any matter for a Union territory or any part thereof.', Since the Parliament has enacted the NFSA, which specifically requires that the schemes introduced by the Central or State Government shall be, in such area and manner as may be prescribed by the Central Government, the Government of National Capital Territory of Delhi is bound to implement the proposed doorstep delivery scheme only in the manner that the Central Government may prescribe, and not otherwise., The rescindment of the MMGGRY scheme and framing of the new scheme on 24 March 2021 was merely a cosmetic change, as is evident from the Cabinet decision No. 2987 dated 24 March 2021 along with the relevant note for the Council of Ministers., The said modified/new scheme was again placed before the Lieutenant Governor to decide whether he would like to invoke his powers under the proviso to Article 239AA(4) of the Constitution. Thus, it would be seen that the issues raised by the Lieutenant Governor, while recording his difference of opinion on 20 March 2018, were not specifically addressed and the Lieutenant Governor again advised his Council of Ministers that the proposal of home delivery of ration may kindly be referred to the Government of India for approval in accordance with the above provision of the NFSA, 2013., The file noting made by the Chief Minister on 16 June 2021 appears to be discordant with the earlier file notings. When the Chief Minister placed the matter before the Lieutenant Governor on 24 May 2021, the Chief Minister was conscious of the fact that the Lieutenant Governor was entitled to invoke his powers under the proviso to Article 239AA(4) of the Constitution. However, while making his noting on 16 June 2021, the Chief Minister records that the instant matter before the Lieutenant Governor is not approval of the scheme of doorstep delivery of ration. The scheme has already attained finality. He expresses the view that there appears to be a serious misunderstanding., To us, it appears that the misunderstanding was not on the part of the Lieutenant Governor, but on the part of the Chief Minister himself. Every Union Territory is administered by the President, acting through an Administrator. In respect of the National Capital Territory of Delhi, the administrator appointed under Article 239 is designated as the Lieutenant Governor. The Lieutenant Governor functions in relation to matters with respect to which the Legislative Assembly has power to make laws, except insofar as he is, by or under any law, required to act in his discretion, on the aid or advice of his Council of Ministers headed by the Chief Minister. By virtue of Section 44(2) of the Government of National Capital Territory of Delhi Act, 1991, save as otherwise provided in this Act, all executive action of the Lieutenant Governor whether taken on the advice of his Ministers or otherwise shall be expressed to be taken in the name of the Lieutenant Governor., Thus, the impugned scheme framed by the Council of Ministers headed by the Chief Minister, before its implementation, was required to be communicated by the Chief Minister to the Lieutenant Governor, since it relates to the administration of the affairs of the Capital. It was in this light that the impugned scheme was initially placed before the Lieutenant Governor, on which he expressed his difference of opinion on 20 March 2018. It was precisely for the same reason that the proposal was again placed by the Chief Minister before the Lieutenant Governor on 24 May 2021 calling upon him to kindly decide whether he would like to invoke his powers under the proviso to Article 239AA(4) of the Constitution. While observing that the scheme has already attained finality, the Chief Minister in his noting dated 16 June 2021 does not state how and when the scheme could be said to have attained finality when, as a matter of fact, the Lieutenant Governor expressed his difference of opinion on the record on two successive occasions, i.e., on 20 March 2018 and again on 2 June 2021 and required that the proposal of home delivery of ration may be referred to the Government of India for approval in accordance with the provisions of the NFSA, 2013. Though there may be no necessity, under the constitutional scheme, for the decision of the Council of Ministers requiring the approval of the Lieutenant Governor, there is an obligation for the Chief Minister to communicate the decision of the Council of Ministers to the Lieutenant Governor and, in case there is a difference of opinion or a disapproval, then the matter must be referred to the President under the proviso to Article 239AA(4). In our view, the Chief Minister was not correct in concluding that the approval of the Central Government is neither mandated nor necessary under Section 12(2)(h) of the NFSA, or that the matter need not have been referred to the President under the proviso to Article 239AA(4), despite the expressed difference of opinion by the Lieutenant Governor., In our view, the Council of Ministers headed by the Chief Minister were obliged to follow the mandate of the proviso to Article 239AA(4) and to refer the matter for the decision of the President., At this stage, we may observe that the language of the proviso to Article 239AA(4) shows that the Lieutenant Governor shall refer it to the President for decision. Therefore, the Lieutenant Governor could also have referred the matter for the decision of the President directly, if the Council of Ministers headed by the Chief Minister were not doing the same. Even when the Lieutenant Governor requires the Chief Minister to make a reference to the President, it is his reference of the difference of opinion., The aforesaid narration of facts shows that after the Chief Minister made his noting on 16 June 2021, the Government of India sent two communications, including the communication dated 24 June 2021 to the Government of National Capital Territory of Delhi, pointing out several non‑compliances of the Act by the GNCTD and also commenting on the proposed home delivery scheme. On 1 July 2021, the Chief Minister again sought the view of the Lieutenant Governor on whether he differs with the draft notification for the scheme of doorstep delivery of ration, or not. This noting of the Chief Minister was responded to by the Lieutenant Governor on 26 July 2021. He referred to the aforesaid communication dated 22 June 2021 of the Central Government, and observed that the same has not been considered by the Council of Ministers, GNCTD. In this light, he requested the Chief Minister to refer the matter to the Council of Ministers for its consideration and decision in accordance with Rule 49 of the Territorial Board Rules, 1993 read with Section 45(c) of the Government of NCT of Delhi Act., We find this action of the Lieutenant Governor to be in accord with Rule 49 of the Territorial Board Rules, 1993 read with Section 45(c) of the Government of NCT of Delhi Act. The file noting dated 1 July 2021 is that of the Chief Minister, and not the Council of Ministers. The record does not show that the Council of Ministers considered the letter dated 22 June 2021 of the Central Government, and the decision to refer the scheme again to the Lieutenant Governor on 1 July 2021 appears to be that of the Chief Minister alone. Rule 49 of the Territorial Board Rules, 1993 reads as follows: 'In case of difference of opinion between the Lieutenant Governor and a Minister in regard to any matter, the Lieutenant Governor shall endeavour by discussion on the matter to settle any point on which such difference of opinion has arisen. Should the difference of opinion persist, the Lieutenant Governor may direct that the matter be referred to the Council.', In the light of the exchanges which took place between the Council of Ministers/Chief Minister on the one hand, and the Lieutenant Governor on the other hand, and since the difference of opinion was not settled despite discussions on the matter, the Lieutenant Governor was justified in directing that the matter be referred to the Council of Ministers for consideration of the letter dated 22 June 2021 of the Central Government. Section 45(c) of the Government of NCT of Delhi Act, insofar as it is relevant, reads that it shall be the duty of the Chief Minister, if the Lieutenant Governor so requires, to submit for the consideration of the Council of Ministers any matter on which a decision has been taken by a Minister but which has not been considered by the Council., Thus, we are of the view that the Lieutenant Governor was justified in requiring the Chief Minister to take the matter to the Council of Ministers along with the communication of the Central Government dated 22 June 2021 for its consideration, if the Chief Minister still differed with the opinion already addressed by the Lieutenant Governor., We are, therefore, of the view that the impugned scheme cannot be implemented and rolled out by the Government of National Capital Territory of Delhi since the Lieutenant Governor has expressed his difference of opinion and required that the same be referred for his decision to the President. The scheme would necessarily have to be rolled out in the name of the Lieutenant Governor, while recording his approval thereof. That has not been done in the facts and circumstances taken note of hereinabove. The Chief Minister should, therefore, place the matter before the Council of Ministers and consider the proposed scheme in the light of the letters of the Central Government dated 17 June 2021 and 22 June 2021, and observations made by us hereinabove. Even if the Council of Ministers resolves to reiterate the proposed scheme, the same would require to be placed again before the Lieutenant Governor, who would be entitled to again examine the issues and in case he still has a difference of opinion with his Council of Ministers, he may require the Chief Minister to place the difference of opinion for the decision of the President of India, or he may, on his own, place the matter before the President of India for his decision. The Government of National Capital Territory of Delhi shall be bound by whatever decision is taken by the President of India in the matter., Thus, we find that the action of the Council of Ministers headed by the Chief Minister to roll out the impugned scheme is still borne, and not in accordance with either Article 239AA(4) or even with Section 44(2) of the Government of NCT of Delhi Act. We are consciously using the expression Council of Ministers headed by the Chief Minister in relation to the action of rolling out the impugned scheme, since the same cannot be described as an action of the Government of National Capital Territory of Delhi. For the same to be an action of the Government of National Capital Territory of Delhi, the action has to necessarily be in the name of the Lieutenant Governor. In the present case, as noticed above, the decision of the Council of Ministers headed by the Chief Minister to roll out the impugned scheme is not, and cannot be described as an executive action taken by, or in the name of the Lieutenant Governor, since he has expressed his disagreement, which stands unresolved, as it has not been placed before the President., We may also deal with the submissions advanced by the Bandhua Mukti Morcha, the applicant in C.M. No. 21333/2021 in W.P.(C.) No. 2037/2021. The decisions in People's Union for Civil Liberties (supra) and Swaraj Abhiyan (supra) relied upon by Mr. Rahman do not direct the State to necessarily provide the rations under the TPDS to the beneficiaries at their doorstep. As we have already observed, there is nothing wrong in the Government of National Capital Territory of Delhi entertaining the desire and intention to deliver packaged atta and rice to the beneficiaries under the TPDS at their doorstep. However, that can be done only in accordance with the scheme of the NFSA, and the statutory orders under the Essential Commodities Act, and not otherwise. We do not agree with Mr. Rahman that the delivery of food to the beneficiaries under the TPDS at the doorstep of the Fair Price Shops does not amount to a guarantee of adequate food and nutrition to the beneficiaries under Articles 21 and 47 of the Constitution of India. We also do not find any merit in the plea of Mr. Rahman that it is against the right to dignity and privacy to compel beneficiaries under the TPDS to queue up to collect their allocated rations from the Fair Price Shops. In our view, it is only civil that persons who desire to obtain or buy anything from an outlet should queue up, if such a queue is necessary looking to the number of persons who may land up at the outlet at the same time. It does not offend the right to dignity and privacy of any person merely because the person may be required to queue up at the outlet.
id_47	10	People queue up to buy medicines from a medical store; to buy milk at the milk booth; bus, train and airline tickets at bus stations, railway stations and airports; to buy cinema tickets at cinema houses; to buy tickets for sporting and other entertainment events at the venues, and so on., If the submission of Mr Rahman in this regard is accepted, it would mean that the right to dignity of such persons who queue up is violated. Acceptance of the submission would also mean that such persons have a right not to stand in a queue, or break of queue. Such a thought would destroy civility and orderly conduct and respect for others' rights in the society, which cannot be accepted., Reliance placed at K.S. Puttaswamy (Aadhaar) is also of no avail., The Government of National Capital Territory of Delhi is entitled to frame a scheme for doorstep delivery of foodgrains/rations to the beneficiaries under the Targeted Public Distribution System at the doorsteps of the TPDS beneficiaries. However, the same has to be done by the Government of National Capital Territory of Delhi from its own resources in compliance with the prevailing laws. Any such scheme framed by the Government of National Capital Territory of Delhi should comply with all the requirements of the National Food Security Act and the Orders issued under the Environment Conservation Act. The impugned scheme as presently framed by Cabinet Decision No. 2987 on 24.03.2021 does not comply with the provisions of the National Food Security Act and the TPDS Order, 2015. The TPDS Order, 2015 has to be read with the National Food Security Act and they are both enforceable. The submission of the Government of National Capital Territory of Delhi that the TPDS Order, 2015 stands overridden by Section 36 of the National Food Security Act is rejected. The Council of Ministers headed by the Chief Minister is bound to communicate its decisions/resolutions, including any such scheme or proposal, to the Lieutenant Governor so as to enable him to examine the same and to take a call on whether, or not, he has a difference of opinion with any such scheme. When any decision of the Council of Ministers headed by the Chief Minister is placed before the Lieutenant Governor for his approval, he shall be mindful of the decision of the Supreme Court of India in State of National Capital Territory of Delhi and shall take his decision to express his difference of opinion, if any, in the light of the aforesaid judgment. In case the Lieutenant Governor expresses his disagreement with his Council of Ministers headed by the Chief Minister, he may either require the Chief Minister to refer the matter to the President for his decision, or he may, on his own, refer the matter to the President for his decision. Even when the Lieutenant Governor requires the Chief Minister to refer the matter for his decision to the President, it is a reference by the Lieutenant Governor and would, therefore, meet the requirement of the proviso to Article 239AA(4) of the Constitution. The final decision shall rest with the President on the difference of opinion and the said decision shall prevail and bind the Council of Ministers headed by the Chief Minister and the Lieutenant Governor, who shall act in accordance with the said final decision. In the facts of the present case, the impugned scheme for doorstep delivery of rations to the beneficiaries under the TPDS framed by Cabinet Decision No. 2987 on 24.03.2021 has not been approved/consented to by the Lieutenant Governor and, therefore, in any event of the matter, the same cannot be implemented in its present form., Consequently, we allow these writ petitions and quash the following three tenders/NIBs issued by the respondents, and actions taken in furtherance thereof: Date: 06/01/2021; Bid ID No. 2021 DSCSC198921 Tender Issuing Date: 19/01/2021; Bid ID No. 2021 DSCSC198916 Tender Issuing Date: 19/01/2021., The petitions stand disposed of in the aforesaid terms. The parties are left to bear their respective costs.
id_471	0	W.P. No. 18822 of 2022 and W.M.P. Nos. 18171 & 18172 of 2022 S. Karthi, Petitioner. The Registrar, Tamil Nadu Dr. Ambedkar Law University, Raja Annamalaipuram, Chennai 600028. The Bar Council of India, represented by its Secretary, No.21, Rouse Avenue, Institutional Area, New Delhi 110002. The Bar Council of Tamil Nadu, represented by its Secretary, High Court Campus, Chennai 600014., Prayer: Writ Petition filed under Article 226 of the Constitution of India praying to issue a writ of certiorari and mandamus, calling for the records pertaining to the admission notification for the five‑year integrated Law Degree Course for the academic year 2022‑2023 dated 11 July 2022 issued by the first respondent and to quash the same insofar as Clause III (d) of the information bulletin published for the purpose of the said notification, and consequently permit the petitioner to participate in the selection process for the five‑year B.A., L.L.B. course offered at the affiliated colleges under the first respondent., The petitioner, S. Karthi, has filed the present writ petition in the nature of certiorari and mandamus seeking interference of the Madras High Court with the admission notification for the five‑year integrated Law Degree Course for the academic year 2022‑2023 dated 11 July 2022 issued by the first respondent, Tamil Nadu Dr. Ambedkar Law University, and to permit him to participate in the selection process for the five‑year B.A., L.L.B. course offered at the affiliated colleges under the first respondent., The petitioner had completed his 10th standard and then pursued a three‑year diploma course. He now wishes to join the law programme., A circular of the Bar Council of India dated 12 December 2022, forwarded by Mr. S. R. Raghunathan, learned Standing Counsel for the second respondent, states: The Legal Education Committee of the Bar Council of India has considered the orders dated 23 March 2021 passed by the Hon'ble Madras High Court in W.P. No. 7665 of 2021 and in W.P. No. 10646 of 2021 vide dated 27 April 2021. After consideration, it is resolved that the three‑year diploma/polytechnic course issued by an institution recognised by the Government shall be considered at par with the +2 certificate for the purpose of admission to the five‑year integrated L.L.B. degree course. All concerned are required to implement the same., The circular is self‑explanatory. It is clear that the petitioner’s qualification entitles him to participate in the selection process for the five‑year integrated law course. In this connection, a Division Bench of the Madras High Court in W.P. No. 22193 of 2022 by an order dated 21 December 2022, P. Santhru Swaminathan v. The Registrar, Tamil Nadu Dr. Ambedkar Law University and two others, examined the same aspect and held that the three‑year diploma/polytechnic course issued by an institution recognised by the Government shall be considered at par with the +2 certificate for the purpose of admission to the five‑year integrated L.L.B. degree course., The judgment simplifies the entire issue and directs the respondents to permit the petitioner to participate in the counselling and, if he is otherwise eligible, to offer him a seat for the five‑year B.A., L.L.B. course in accordance with other rules and regulations. He cannot be disqualified merely on the ground that he studied a three‑year diploma course after completing the 10th standard., The writ petition stands allowed to that extent. No costs. Consequently, the connected miscellaneous petitions are closed., The first respondent, when issuing the prospectus for future years, may consider the judgment of the Madras High Court, particularly the Division Bench judgment mentioned above, and also the Bar Council of India circular, and incorporate in its prospectus that students who have completed a three‑year diploma/polytechnic course recognised by the Government after completing the 10th standard shall be considered at par with those who have completed +2 and obtained their certificates.
id_473	0	Office of the Registrar General, Camp Office at Srinagar, No: 184 of 2021/RG dated 30.03.2021. In the interest of administration, the following transfers and postings of the Judicial Officers are hereby ordered. Shri Mohan Lal Manhas, Principal District and Sessions Judge, Udhampur is transferred and posted as Principal District and Sessions Judge, Jammu in place of Shri Sanjeev Gupta. Shri Mohd Akram Choudhary, Principal District and Sessions Judge, Samba is transferred and posted as Principal District and Sessions Judge, Srinagar in place of Shri Abdul Rashid Malik. Shri Rajesh Sekhri, Special Judge Anti‑Corruption (CBI) Cases, Jammu is transferred and posted as Member, Jammu and Kashmir Special Tribunal, Jammu on deputation in place of Ms Bala Jyoti. Shri Sanjeev Gupta, Principal District and Sessions Judge, Jammu is transferred and posted as Special Judge Anti‑Corruption (CBI) Cases, Jammu in place of Shri Rajesh Sekhri. Shri Abdul Rashid Malik, Principal District and Sessions Judge, Srinagar is transferred and posted as Principal District and Sessions Judge, Pulwama in place of Shri Mohd Ibrahim Wani. Shri Kishore Kumar, Principal District and Sessions Judge, Ramban is transferred and posted as Additional District and Sessions Judge, Jammu in place of Shri Tahir Khursheed Raina. Ms Bala Jyoti, Member, Jammu and Kashmir Special Tribunal, Jammu is transferred and posted as Post Officer, Jammu and Kashmir Labour and Industrial Tribunal against the available vacancy. Shri Shujat Ali Khan, Principal District and Sessions Judge, Budgam is transferred and posted as Member, Jammu and Kashmir Special Tribunal, Srinagar on deputation in place of Ms Jeema Bashir. Shri Mohammad Yousuf Wani, Principal District and Sessions Judge, Ganderbal is transferred and posted as Principal District and Sessions Judge, Baramulla in place of Shri Sanjay Parihar. Shri Sanjay Parihar, Principal District and Sessions Judge, Baramulla is transferred and posted as Director, Jammu and Kashmir Judicial Academy against the available vacancy. Ms Nighat Sultana, Additional District Judge, Bank Cases, Jammu is transferred and her services are placed at the disposal of the Hon’ble Chief Justice for her appointment as Registrar Inspection, High Court of Jammu and Kashmir, Jammu in place of Shri Shahzad Azeem. Shri Shahzad Azeem, Registrar Inspection is transferred and his services are placed at the disposal of the Hon’ble Chief Justice for his appointment as Registrar Vigilance, High Court of Jammu and Kashmir against the available vacancy. Shri Yash Paul Bourney, Special Judge Anti‑Corruption, Jammu is transferred and posted as Principal District and Sessions Judge, Udhampur in place of Shri Mohan Lal Manhas. Shri Jaffer Hussain Beg, Principal District and Sessions Judge, Rajouri is transferred and posted as Principal District and Sessions Judge, Kathua and shall take over the charge after the retirement of Shri Pawan Dev Kotwal on 31.03.2021. Shri Ashok Kumar, Principal District and Sessions Judge, Bhaderwah is transferred and posted as Principal District and Sessions Judge, Poonch in place of Shri Madan Lal. Shri Mohan Singh Parihar, Special Judge Anti‑Corruption Court (CBI cases), Srinagar is transferred and posted as Special Judge Anti‑Corruption, Jammu in place of Shri Yash Paul Bourney. Shri Mohammad Ibrahim Wani, Principal District and Sessions Judge, Pulwama is transferred and posted as Principal District and Sessions Judge, Bandipora in place of Shri Sarfaraz Hussain Shah. Shri Sham Lal Lalhal, Principal District and Sessions Judge, Kishtwar is transferred and his services are placed at the disposal of the Hon’ble Chief Justice for his appointment as Registrar Inspection, High Court of Jammu and Kashmir. Shri Mohammad Ashraf Malik, Principal District and Sessions Judge, Kulgam is transferred and posted as Principal District and Sessions Judge, Budgam in place of Shri Shujat Ali Khan. Shri Ravinder Nath Wattal, Special Judge Anti‑Corruption, Srinagar is transferred and posted as Principal District and Sessions Judge, Reasi in place of Shri Kamlesh Pandita. Shri Madan Lal, Principal District and Sessions Judge, Poonch is transferred and posted as Principal District and Sessions Judge, Rajouri in place of Shri Jaffer Hussain Beg. Shri Yash Paul Kotwal, Additional District and Sessions Judge, Jammu is transferred and posted as Principal District and Sessions Judge, Kishtwar in place of Shri Sham Lal Lalhal. Ms Jeema Bashir, Member, Jammu and Kashmir Special Tribunal, Srinagar is repatriated from deputation and posted as Post Officer, Fast Track Court for POCSO Cases, Srinagar against the available vacancy. Shri Haq Nawaz Zargar, Additional District and Sessions Judge, Srinagar is transferred and posted as Principal District and Sessions Judge, Ramban in place of Shri Kishore Kumar. Shri Tahir Khursheed Raina, Additional District and Sessions Judge, Jammu is transferred and posted as Principal District and Sessions Judge, Kulgam in place of Shri Mohammad Ashraf Malik. Ms Shazia Tabassum, Additional District Judge, Pulwama is transferred and posted as Principal District and Sessions Judge, Ganderbal in place of Shri Mohammad Yousuf Wani. Shri Tasleem Arif, 3rd Additional District Judge, Srinagar is transferred and posted as Principal District and Sessions Judge, Kupwara against the available vacancy. Ms Sonia Gupta, Registrar Judicial, High Court Jammu Wing is transferred and posted as Principal District and Sessions Judge, Samba in place of Shri Mohammad Akram Choudhary. Shri Rajinder Saproo, Additional District and Sessions Judge, Srinagar is transferred and posted as 2nd Additional District and Sessions Judge, Jammu in place of Shri Virender Singh Bahu. Shri Sobha Ram Gandhi, Additional District and Sessions Judge, Udhampur is transferred and his services are placed at the disposal of the Hon’ble Chief Justice for his appointment as Registrar Judicial, High Court Wing Jammu in place of Ms Sonia Gupta. Ms Kalpana Revo, Additional District Judge (Matrimonial), Jammu is transferred and posted as Additional District and Sessions Judge, Rajouri in place of Ms Kusum Lata Pandita. Shri S C Kattal, Presiding Officer, MACT, Srinagar is repatriated from deputation and posted as Additional District and Sessions Judge, Udhampur in place of Shri Sobha Ram Gandhi. Shri Jatinder Singh Jamwal, Additional District and Sessions Judge, Kathua is transferred and posted as Special Judge Anti‑Corruption (CBI Cases), Srinagar in place of Shri Mohan Singh Parihar. Shri Virender Singh Bhau, 2nd Additional District and Sessions Judge, Jammu is transferred and posted as Principal District and Sessions Judge, Bhaderwah in place of Shri Ashok Kumar. Shri Khalil Ahmed Choudhary, Additional District and Sessions Judge, Anantnag is transferred and posted as Post Officer, Fast Track Court, Jammu against the available vacancy. Shri Chain Lal Bavoria, Additional District and Sessions Judge, Anti‑Corruption, Jammu is transferred and posted as Special Judge Anti‑Corruption, Srinagar in place of Shri Ravinder Nath Wattal. Ms Masarat Shaheen, Registrar Judicial, High Court Srinagar Wing is transferred and posted as Principal Judge, Family Court, Srinagar against the available vacancy. Shri Ritesh Kumar Dubay, One Man Forest Authority is repatriated from deputation and posted as Additional District and Sessions Judge, Anti‑Corruption, Jammu in place of Shri Chain Lal Bavoria. Shri Kamlesh Pandita, Principal District and Sessions Judge, Reasi is transferred and posted as Additional District and Sessions Judge, Kathua in place of Shri Jatinder Singh Jamwal. Shri Sarfaraz Hussain Shah, Principal District and Sessions Judge, Bandipora is transferred and posted as Additional District Judge (Bank Cases), Jammu in place of Ms Nighat Sultana. Shri Balbir Lal, Additional District Judge (Bank Cases), Srinagar is transferred and posted as Post Officer, Fast Track Court for POCSO Cases, Jammu against the available vacancy. Shri Ashwani Kumar, Additional Sessions Judge, TADA/POTA, Srinagar is transferred and posted as Additional District and Sessions Judge, Jammu in place of Shri Yash Paul Kotwal. Ms Kusum Lata Pandita, Additional District and Sessions Judge, Rajouri is transferred and posted as Principal Judge, Family Court, Jammu against the available vacancy. Shri Abdul Nasir, Civil Judge (Senior Division)/Sub‑Judge, upon his promotion as District Judge on ad hoc basis, Government Order No 153‑JK dated 15.01.2021, is posted as Additional District Judge (Bank Cases), Srinagar in place of Shri Balbir Lal. Shri Surinder Singh, Civil Judge (Senior Division)/Sub‑Judge, upon his promotion as District Judge on ad hoc basis, Government Order No 153‑JK dated 15.01.2021, is posted as Post Officer, Fast Track Court (Cases against women including rapes), Ramban against the available vacancy. Shri Javed Ahmed Geelani, Civil Judge (Senior Division)/Sub‑Judge, upon his promotion as District Judge on ad hoc basis, Government Order No 153‑JK dated 15.01.2021, is posted as Post Officer, Fast Track Court, Kupwara against the available vacancy. Shri Mohammad Amin Mir, Civil Judge (Senior Division)/Sub‑Judge, upon his promotion as District Judge on ad hoc basis, Government Order No 153‑JK dated 15.01.2021, is posted as District Judge, LRP, High Court Wing, Srinagar. Shri Ajay Kumar Gupta, Civil Judge (Senior Division)/Sub‑Judge, upon his promotion as District Judge on ad hoc basis, Government Order No 153‑JK dated 15.01.2021, is posted as 1st Additional District and Sessions Judge, Srinagar in place of Shri Rajender Sapru. Shri Sudhir Kumar, Civil Judge (Senior Division)/Sub‑Judge, upon his promotion as District Judge on ad hoc basis, Government Order No 153‑JK dated 15.01.2021, is posted as 3rd Additional District and Sessions Judge, Srinagar in place of Shri Tasleem Arif. Shri Om Prakash Thakur, Civil Judge (Senior Division)/Sub‑Judge, upon his promotion as District Judge on ad hoc basis, Government Order No 153‑JK dated 15.01.2021, is posted as One Man Forest Authority on deputation in place of Shri Ritesh Kumar Dubey. Shri Gowher Majid Dalal, Civil Judge (Senior Division)/Sub‑Judge, upon his promotion as District Judge on ad hoc basis, Government Order No 153‑JK dated 15.01.2021, is transferred and his services are placed at the disposal of the Hon’ble Chief Justice for his appointment as Registrar Judicial, Srinagar Wing of the High Court in place of Ms Masarat Shaheen. Shri Javed Alam, Civil Judge (Senior Division)/Sub‑Judge, upon his promotion as District Judge on ad hoc basis, Government Order No 153‑JK dated 15.01.2021, is posted as Additional District and Sessions Judge, Anantnag in place of Shri Khalil Ahmed Choudhary. Shri Mehraj‑ud‑din Sofi, Civil Judge (Senior Division)/Sub‑Judge, upon his promotion as District Judge on ad hoc basis, Government Order No 153‑JK dated 15.01.2021, is posted as Additional District and Sessions Judge, Pulwama in place of Ms Shazia Tabassum. Shri Surjeet Singh Bali, Civil Judge (Senior Division)/Sub‑Judge, upon his promotion as District Judge on ad hoc basis, Government Order No 153‑JK dated 15.01.2021, is posted as Additional District Judge, Matrimonial Cases, Jammu in place of Ms Kalpana Revo. Shri Om Prakash Bhagat, Civil Judge (Senior Division)/Sub‑Judge, upon his promotion as District Judge on ad hoc basis, Government Order No 153‑JK dated 15.01.2021, is posted as Additional District and Sessions Judge, Baramulla against the available vacancy. Shri Manjeet Singh Manhas, Civil Judge (Senior Division)/Sub‑Judge, upon his promotion as District Judge on ad hoc basis, Government Order No 153‑JK dated 15.01.2021, is posted as Additional Sessions Judge, TADA/POTA, Srinagar in place of Shri Ashwani Kumar. Shri Naushad Ahmed Khan, Civil Judge (Senior Division)/Sub‑Judge, upon his promotion as District Judge on ad hoc basis, Government Order No 153‑JK dated 15.01.2021, is posted as 4th Additional District and Sessions Judge, Srinagar in place of Shri Haq Nawaz Zargar. Shri Som Lal, Civil Judge (Senior Division)/Sub‑Judge, upon his promotion as District Judge on ad hoc basis, Government Order No 153‑JK dated 15.01.2021, is posted as Post Officer, Fast Track Court (Cases against women including rapes), Kulgam against the available vacancy. Shri Mohammad Ashraf Bhat, Civil Judge (Senior Division)/Sub‑Judge, upon his promotion as District Judge on ad hoc basis, Government Order No 153‑JK dated 15.01.2021, is posted as 2nd Additional District and Sessions Judge, Srinagar against the available vacancy. Shri Pradeep Kumar, Civil Judge (Senior Division)/Sub‑Judge, upon his promotion as District Judge on ad hoc basis, Government Order No 153‑JK dated 15.01.2021, is posted as Post Officer, MACT, Srinagar on deputation in place of Shri S C Kattal., Shri Amarjit Singh Langeh, Chief Judicial Magistrate, Reasi is transferred and posted as Chief Judicial Magistrate, Jammu in place of Shri Ajay Kumar Gupta. Ms Sandeep Kour, Secretary, District Legal Services Authority, Udhampur is transferred and posted as Chief Judicial Magistrate, Kathua in place of Shri Yash Pal Sharma. Shri Amit Kumar Gupta, City Judge, Srinagar is transferred and posted as Secretary, High Court Legal Services Authority in place of Shri Abdul Nasir. Shri Yahya Firdous Ahanger, Special Mobile Magistrate (Traffic), Srinagar is transferred and posted as Secretary, District Legal Services Authority, Jammu in place of Shri Naushad Ahmed Khan. Shri Sandeep Gandotra, Special Mobile Magistrate (Passenger Tax), Jammu is transferred and posted as Chief Judicial Magistrate, Pulwama in place of Shri Mohammad Ashraf Bhat. Shri Anoop Kumar, Chief Judicial Magistrate, Kulgam is transferred and posted as Sub Judge, LRP, High Court. He shall look after the work of CPC, e‑Courts, High Court of Jammu and Kashmir. Shri Farooq Ahmad Bhat, Chief Judicial Magistrate, Ganderbal is transferred and posted as Chief Judicial Magistrate, Srinagar in place of Shri Gowher Majid Dalal. Shri Madan Lal, Sub Judge, Batote is transferred and posted as Chief Judicial Magistrate, Poonch in place of Shri Som Lal. Shri Manoj Parihar, Forest Magistrate, Srinagar is transferred and posted as Sub Judge, Katra in place of Shri Romesh Lal. Shri Shabir Ahmad Malik, Sub Judge, LRP, High Court of Jammu and Kashmir is transferred and posted as Chief Judicial Magistrate, Budgam in place of Shri Mohammad Amin Mir. Shri Arvind Sharma, Joint Registrar (Judicial), High Court Jammu Wing is transferred and posted as Chief Judicial Magistrate, Samba in place of Shri Vinod Kumar. Shri Yash Pal Sharma, Chief Judicial Magistrate, Kathua is transferred and posted as Chief Judicial Magistrate, Kishtwar in place of Shri Sudhir Kumar. Shri Amit Sharma, Secretary, District Legal Services Authority, Ramban is transferred and posted as Chief Judicial Magistrate, Rajouri in place of Shri Om Prakash Thakur. Shri Manjeet Rai, Municipal Magistrate, Srinagar is transferred and posted as City Judge, Jammu in place of Shri Prem Sagar. Shri Khursheed‑ul‑Islam, Secretary, District Legal Services Authority, Pulwama is transferred and posted as Chief Judicial Magistrate, Handwara in place of Shri Javed Ahmad Geelani. Ms Anjum Ara, Secretary, District Legal Services Authority, Reasi is transferred and posted as Chief Judicial Magistrate, Ramban in place of Shri Pardeep Kumar. Ms Arti Mohan, Secretary, District Legal Services Authority, Kathua is transferred and posted as Electricity Magistrate, Jammu in place of Ms Sudesh Sharma. Ms Rajni Sharma, Excise Magistrate, Jammu is transferred and posted as Secretary, District Legal Services Authority, Udhampur in place of Shri Sandeep Kour. Shri Vinod Kumar, Chief Judicial Magistrate, Samba is transferred and posted as Special Mobile Magistrate (Traffic), Jammu in place of Shri Dinesh Gupta. Ms Umi Kusloom, Passenger Tax and Electricity Magistrate, Srinagar is transferred and posted as Chief Judicial Magistrate, Ganderbal in place of Shri Farooq Ahmad Bhat. Shri Pawan Kumar Sharma, Sub Judge, Jammu is transferred and posted as Special Mobile Magistrate, Rajouri in place of Shri Raj Kumar. Shri Ahsan‑ullah Parvez Malik, Sub Judge, Surankote is posted as Special Mobile Magistrate, Srinagar in place of Shri Khem Raj. Shri Iqbal Ahmad Masoodi, Chief Judicial Magistrate, Bandipora is transferred and posted as Forest Magistrate, Srinagar in place of Shri Manoj Parihar. Ms Renu Dogra, Sub Judge, Bhaderwah is transferred and posted as Sub Judge, Jammu in place of Shri Pawan Kumar Sharma. Ms Sudesh Sharma, Electricity Magistrate, Jammu is transferred and posted as Sub Judge, LRP, High Court Wing, Jammu against the available vacancy. Shri Adnan Syed, Secretary, District Legal Services Authority, Srinagar is transferred and posted as Chief Judicial Magistrate, Reasi in place of Shri Amarjit Singh Langeh. Shri Susheel Singh, Secretary, District Legal Services Authority, Bhaderwah is transferred and posted as Special Mobile Magistrate, Jammu in place of Shri Surjeet Singh Bali. Shri Khem Raj, Special Mobile Magistrate, Srinagar is transferred and posted as Special Mobile (Passenger Tax) Magistrate, Jammu in place of Shri Sandeep Gandotra. Shri Dinesh Gupta, Special Mobile Magistrate (Traffic), Jammu is transferred and his services are placed at the disposal of the Hon’ble Chief Justice for his appointment as Joint Registrar (Judicial), High Court Wing, Jammu in place of Shri Arvind Sharma. Shri Parvez Iqbal, Sub Judge, Railway Magistrate, Jammu, Reasi is transferred and posted as Special Mobile Magistrate (Traffic), Srinagar in place of Shri Yahya Firdous Ahanger. Shri Prem Sagar, City Judge, Jammu is transferred and posted as Chief Judicial Magistrate, Doda in place of Shri Manjeet Singh Manhas. Ms Archana Charak, Sub Judge, Ramnagar is transferred and her services are placed at the disposal of the Hon’ble Chief Justice for her appointment as Joint Registrar, Inspection, High Court Wing, Jammu in place of Shri Umesh Sharma. Shri Abdul Qayoom Mir, Chief Judicial Magistrate, Shopian is transferred and posted as Chief Judicial Magistrate, Bandipora in place of Shri Iqbal Ahmad Masoodi. Shri Ramesh Lal, Sub Judge, Katra is transferred and posted as Sub Judge, Batote in place of Shri Madan Lal. Shri Manzoor Ahmad Zargar, Sub Judge, Pattan is transferred and posted as Chief Judicial Magistrate, Kulgam in place of Shri Anoop Kumar. Shri Manzoor Ahmad Khan, Sub Judge, Chadoora is transferred and posted as Sub Judge, Surankote in place of Shri Ahsan‑ullah Parvez Malik. Shri Parvin Pandoh, Special Mobile Magistrate, Baramulla is transferred and posted as Municipal Magistrate, Jammu in place of Shri Om Prakash Bhagat. Shri Faizan ul Haq Iqbal, Secretary, District Legal Services Authority, Baramulla is transferred and posted as Chief Judicial Magistrate, Sopore in place of Shri Surinder Singh. Shri Noor Mohammad Mir, Sub Judge, Uri is transferred and posted as Secretary, District Legal Services Authority, Srinagar in place of Shri Adnan Syed. Ms Swati Gupta, Secretary, District Legal Services Authority, Samba is transferred and posted as Sub Judge, LRP, High Court Wing, Jammu against the available vacancy. She shall remain attached with State Judicial Academy. Ms Rafia Hassan, Secretary, District Legal Services Authority, Anantnag is transferred and posted as Sub Judge, Bijbehara in place of Shri Mir Wajahat. Shri Mir Wajahat, Sub Judge, Bijbehara is transferred and posted as Secretary, District Legal Services Authority, Anantnag in place of Ms Rafia Hassan. Shri Umesh Sharma, Joint Registrar, Inspection, High Court Wing, Jammu is transferred and posted as Excise Magistrate, Jammu in place of Ms Rajni Sharma. Shri Raj Kumar, Special Mobile Magistrate, Rajouri is transferred and posted as Sub Judge, Railway Magistrate, Jammu in place of Shri Pervaiz Iqbal. Shri Iqbal Ahmad Akhoon, Principal Magistrate, JJB Baramulla, upon his promotion as Civil Judge (Senior Division) on ad hoc basis, High Court Order No 859 dated 09.02.2021, is transferred and posted as Chief Judicial Magistrate, Shopian in place of Shri Abdul Qayoom Mir. Ms Phuntsog Angmo, Principal Magistrate, JJB Leh, upon her promotion as Civil Judge (Senior Division) on ad hoc basis, High Court Order No 859 dated 09.02.2021, is transferred and posted as Special Mobile Magistrate, Leh against the available vacancy. Shri Riyaz Ahmad, Principal Magistrate, JJB Rajouri, upon his promotion as Civil Judge (Senior Division) on ad hoc basis, High Court Order No 859 dated 09.02.2021, is transferred and posted as Secretary, District Legal Services Authority, Pulwama in place of Shri Khurshid‑ul‑Islam. Ms Tabasum Qadir Parray, Principal Magistrate, JJB Srinagar, upon her promotion as Civil Judge (Senior Division) on ad hoc basis, High Court Order No 859 dated 09.02.2021, is transferred and posted as Sub Judge, Chadoora in place of Shri Manzoor Ahmad Khan. Shri Meyank Gupta, District Mobile Magistrate (Traffic), Rajouri, upon his promotion as Civil Judge (Senior Division) on ad hoc basis, High Court Order No 859 dated 09.02.2021, is transferred and posted as Municipal Magistrate, Srinagar in place of Shri Manjeet Rai. Shri Sajad‑ur‑Rehman, Munsiff, Ganderbal, upon his promotion as Civil Judge (Senior Division) on ad hoc basis, High Court Order No 859 dated 09.02.2021, is transferred and posted as Special Mobile Magistrate, Baramulla in place of Shri Parvin Pandoh. Shri Altaf Hussain Khan, Munsiff, Pulwama, upon his promotion as Civil Judge (Senior Division) on ad hoc basis, High Court Order No 859 dated 09.02.2021, is transferred and posted as Sub Judge, Uri in place of Shri Noor Mohammad Mir. Ms Rekha Kapoor, Munsiff, Kathua, upon her promotion as Civil Judge (Senior Division) on ad hoc basis, High Court Order No 859 dated 09.02.2021, is transferred and posted as Secretary, District Legal Services Authority, Reasi in place of Ms Anjum Ara. Ms Pooja Raina, Munsiff, Samba, upon her promotion as Civil Judge (Senior Division) on ad hoc basis, High Court Order No 859 dated 09.02.2021, is transferred and posted as Secretary, District Legal Services Authority, Kathua in place of Ms Arti Mohan. Ms Pooja Gupta, Munsiff, Akhnoor, upon her promotion as Civil Judge (Senior Division) on ad hoc basis, High Court Order No 859 dated 09.02.2021, is transferred and posted as Secretary, District Legal Services Authority, Ramban in place of Shri Amit Sharma. Ms Fariqa Nazir, Sub Registrar, upon her promotion as Civil Judge (Senior Division) on ad hoc basis, High Court Order No 859 dated 09.02.2021, is transferred and posted as Secretary, District Legal Services Authority, Bandipora against the available vacancy. Shri Deputy Kumar, District Mobile Magistrate (Traffic), Kathua, upon his promotion as Civil Judge (Senior Division) on ad hoc basis, High Court Order No 859 dated 09.02.2021, is transferred and posted as Sub Judge, Pattan in place of Shri Manzoor Ahmad Zargar. Shri Abdul Bari, Munsiff, Chadoora, upon his promotion as Civil Judge (Senior Division) on ad hoc basis, High Court Order No 859 dated 09.02.2021, is transferred and his services are placed at the disposal of the Hon’ble Chief Justice for his appointment as Joint Registrar (Judicial), High Court Wing, Srinagar in place of Shri Mehraj‑ud‑Din Sofi. Shri Ajay Kumar, District Mobile Magistrate (Traffic), Udhampur, upon his promotion as Civil Judge (Senior Division) on ad hoc basis, High Court Order No 859 dated 09.02.2021, is transferred and posted as City Judge, Srinagar in place of Shri Amit Kumar Gupta. Shri Salahudin Ahmad, Additional Mobile Magistrate (Traffic), Jammu, upon his promotion as Civil Judge (Senior Division) on ad hoc basis, High Court Order No 859 dated 09.02.2021, is transferred and posted as Secretary, District Legal Services Authority, Samba in place of Ms Swati Gupta. Ms Nusrat Ali, Munsiff, Pampore, upon her promotion as Civil Judge (Senior Division) on ad hoc basis, High Court Order No 859 dated 09.02.2021, is transferred and her services are placed at the disposal of the Hon’ble Chief Justice for her appointment as Joint Registrar, Inspection, High Court Wing, Srinagar against the available vacancy. Shri Sunil Kumar, Munsiff, Katra, upon his promotion as Civil Judge (Senior Division) on ad hoc basis, High Court Order No 859 dated 09.02.2021, is transferred and posted as Passenger Tax and Electricity Magistrate, Srinagar in place of Ms Umi Kusloom. Ms Smriti Sharma, Sub Registrar, Jammu, upon her promotion as Civil Judge (Senior Division) on ad hoc basis, High Court Order No 859 dated 09.02.2021, is transferred and posted as Sub Judge, Ramnagar in place of Ms Archana Charak. Ms Sumati Sharma, Munsiff, Hiranagar, upon her promotion as Civil Judge (Senior Division) on ad hoc basis, High Court Order No 859 dated 09.02.2021, is transferred and posted as Sub Judge, Bhaderwah in place of Ms Renu Dogra. Shri Mudasir Faroog, Munsiff, Kulgam, upon his promotion as Civil Judge (Senior Division) on ad hoc basis, High Court Order No 859 dated 09.02.2021, is transferred and posted as Secretary, District Legal Services Authority, Bhaderwah in place of Shri Susheel Singh. Shri Muzamil Ahmad Wani, Munsiff, Boniyar, upon his promotion as Civil Judge (Senior Division) on ad hoc basis, High Court Order No 859 dated 09.02.2021, is transferred and posted as Secretary, District Legal Services Authority, Kupwara., Shri Touseef Ahmad Magray, District Mobile Magistrate (Traffic), Doda is transferred and posted as Sub Registrar, Srinagar in place of Ms Fariqa Nazir. Ms Girja Shavan, Additional Special Mobile Magistrate, Udhampur is transferred and posted as Munsiff, Hiranagar in place of Ms Sumati Sharma. Shri Junaid Imtiaz Mir, Munsiff, Ramban is transferred and posted as Munsiff, Pampore in place of Ms Nusrat Ali. Shri Brij Raj Singh, Munsiff, Thanamand is transferred and posted as District Mobile Magistrate (Traffic), Kathua in place of Shri Deputy Kumar. Shri Sandeep Singh Sen, Munsiff, Bhaderwah is transferred and posted as Munsiff, Katra in place of Shri Sunil Kumar. Shri Shafeeq Ahmad, Munsiff, Kotranka is transferred and posted as District Mobile Magistrate (Traffic), Udhampur in place of Shri Ajay Kumar. Shri Wangial Tsering, Munsiff, Sankoo is transferred and posted as Munsiff, Nobra in place of Shri Chemit Yurgyal. Shri Moneer Ahmad, 2nd Additional Munsiff, Srinagar is transferred and posted as Munsiff, Sankoo in place of Shri Wangial Tsering. Shri Chemit Yurgyal, Munsiff, Nobra is transferred and posted as Munsiff, Khaltsi against the available vacancy. Shri Faizan‑i‑Nazar, Munsiff, Shangus is transferred and posted as Munsiff, Pulwama in place of Shri Altaf Hussain Khan. Shri Majid Farooq Mir, Additional Special Mobile Magistrate, Shopian is transferred and posted as Munsiff, Shangus in place of Shri Faizan‑i‑Nazar. Shri Mohammad Ishtiyaq Alam Baba, Additional Special Mobile Magistrate, Kralpora is transferred and posted as Munsiff, Chadoora in place of Shri Abdul Bari. Shri Javed Ahmad Parray, Munsiff, Sogam is transferred and posted as Additional Special Mobile Magistrate, Beerwah in place of Shri Imran Haneef Khan. Shri Imran Haneef Khan, Magistrate, Beerwah is transferred and posted as Additional Special Mobile Magistrate, Kralpora in place of Shri Mohammad Ishtiyaq Alam Baba. Ms Rimpi Rani, Munsiff, Reasi is transferred and posted as Sub Registrar, Jammu in place of Ms Smriti Sharma. Shri Babar Hussain, Munsiff, Aishmuqam is transferred and posted as District Mobile Magistrate (Traffic), Doda in place of Shri Touseef Ahmad Magray. Shri Ch Ghulam Murtaza, Munsiff, Thathri is transferred and posted as District Mobile Magistrate (Traffic), Rajouri in place of Shri Meyank Gupta. Ms Poonam Gupta, Munsiff LRP, High Court Wing, Jammu is transferred and posted as Munsiff, Samba in place of Ms Pooja Raina. Shri Shahber Ayaz, District Mobile Magistrate (Traffic), Anantnag is transferred and posted as Munsiff, Boniyar in place of Shri Muzamil Ahmad Wani. Ms Himani Parihar, Additional Special Mobile Magistrate, Ramban is transferred and posted as Munsiff, Akhnoor in place of Ms Pooja Gupta. Ms Bhanu Bhasin, District Mobile Magistrate (Traffic), Poonch is transferred and posted as Additional Mobile Magistrate (Traffic), Jammu in place of Shri Salahudin Ahmad. Ms Arusa Chowdhary, Munsiff LRP, High Court Wing, Jammu is transferred and posted as Munsiff, Ramban in place of Shri Junaid Imtiaz Mir., Note (i): The transferee Judges shall ensure that all matters pending for judgments or part heard are completed and judgments/orders are pronounced in such matters before moving. The transferee Officers shall hand over the charge to any other available Judicial Officer or Revenue Officer. Note (ii): The Officers sent on deputation shall report to the Registrar, Srinagar/Jammu till their deputation orders are received from the Government. By Order. Office of the Registrar General dated 30.03.2021 No: 7048‑239/RG/GS. Copy to: 1. Principal Secretary to the Hon’ble Chief Justice, High Court of Jammu and Kashmir; 2. Secretary to the Hon’ble Justice for information of their Lordships; 3. Secretary to the Government Department of Law and Parliamentary Affairs, Civil Secretariat, Jammu; 4. Registrar Vigilance, High Court of Jammu and Kashmir, Jammu; 5. Registrar Rules, High Court of Jammu and Kashmir, Jammu; 6. Registrar Judicial, High Court of Jammu and Kashmir, Jammu/Srinagar; 7. All Principal District and Sessions Judges of the Union Territories of Jammu and Kashmir and Ladakh; 8. Concerned Judicial Officers for information; 9. CPC‑eCourts, High Court of Jammu and Kashmir, Jammu for uploading the same on the official website of the High Court; 10. Director Finance, High Court of Jammu and Kashmir, Jammu; 11. Account Officers of both wings of the High Court; 12. In‑charge Statistical, High Court of Jammu and Kashmir Main Wing, Srinagar for information; 13. Office file.
id_474	0	WP(MD)No.4505 of 2016 and WMP(MD)No.4085 of 2016 Vasuki : Petitioner. The respondents are: 1. The Secretary to Government, Health Department, Government of Tamil Nadu, Fort St. George, Chennai 600009. 2. The Joint Director of Health Services, DMS Office Campus, Teynampettai, Chennai 600018. 3. The Joint Director of Medical Services, DMS Office Campus, Teynampettai, Chennai 600018. 4. The District Collector, Tuticorin District, Tuticorin. 5. The Dean, Tuticorin Government Medical College Hospital, Palayamkottai Road, Tuticorin. 6. Dr. D. Shobana. PRAYER: Writ Petition filed under Article 226 of the Constitution of India seeking issuance of a Writ of Mandamus directing the respondents to pay Rupees Twenty Five Lakh only (Rs. 25,00,000) towards compensation to the petitioner for the medical negligence that caused lifelong financial constraints in bringing up her third child. For Petitioner : Mr. S. Srinivasa Raghavan. For Respondents : Mr. T. Vilavankothai, Additional Government Pleader for respondents 1 to 5., The petitioner before the Madras High Court is a housewife and her husband is an agricultural coolie. The petitioner gave birth to two children and after her second delivery on 19 July 2013 in the fifth respondent Hospital, she underwent Puerperal Sterilization by Tubectomy on 23 July 2013 in order to avoid further pregnancy. The surgery was performed by the sixth respondent and the petitioner was discharged from the hospital on 29 July 2013. However, the petitioner conceived again in March 2014 and gave birth to a third child on 6 January 2015. Thereafter, the petitioner again underwent the same procedure to prevent future pregnancy. Because the petitioner underwent another surgery and had to rear another child due to the medical negligence of respondents 5 and 6, she made representations to the respondents seeking compensation. Since there was no proper response, she moved the instant writ petition for a mandamus directing the respondents to grant compensation for the negligence in performing the Family Planning Operation., Learned counsel appearing for the petitioner submitted that the petitioner already had two children. During her second delivery at the fifth respondent Hospital, she was given assurance that Puerperal Sterilization by Tubectomy is a fool‑proof methodology to avoid fresh pregnancy. Believing the doctors’ version that there was no chance of fresh conception after the successful surgery performed by the sixth respondent, the petitioner and her husband entered into matrimonial obligations. Shockingly, the petitioner conceived again and immediately reported to respondents 5 and 6. They directed the petitioner to abort the child, but the petitioner refused to abort the child in the womb, considering it a sin. The petitioner delivered the third child on 3 January 2015 due to the medical negligence of respondents 5 and 6 and she had undergone another surgery by the same methodology. Thereafter, she has not conceived again, which proves that the first surgery was unsuccessful. Therefore, the respondents are vicariously and jointly liable for the lapses committed and the petitioner prays for compensation., Learned Additional Government Pleader appearing for the respondents, by referring to the counter‑affidavit filed by the fifth respondent, submitted that the petitioner was explained about the Family Planning Operation, its pros and cons, success rate and post‑operative complications. Only after obtaining consent from the petitioner and her family members was the sterilization operation conducted. The petitioner also gave an undertaking before the operation that she knew about the operation, that the doctors and the hospital authorities were not responsible, and that she would inform the hospital authorities within two weeks if she did not get her menstruation after the operation and that she would agree to abort the fetus and would not claim any compensation. Having agreed to the terms, the petitioner is estopped from making any claim for compensation., He further submitted that the petitioner did not obey the doctor's advice to inform the hospital authorities within two weeks if she did not get her menstruation and it is not known whether the petitioner strictly followed the prescriptions and advice given by the hospital authorities. In any event, as per the scheme, the petitioner can claim only a sum of Rupees Thirty Thousand (Rs. 30,000) and therefore, he prayed for dismissal., The Madras High Court gave its anxious consideration to the rival submissions and also perused the available materials., The Hon'ble Supreme Court, in State of Haryana and Others v. Santra [2000 (3) SCC 520], observed: Medical negligence plays its game in strange ways. Sometimes it plays with life; sometimes it gifts an 'unwanted child' as in the instant case where the respondent, a poor labourer woman who already had many children and had opted for sterilization, developed pregnancy and ultimately gave birth to a female child in spite of the sterilization operation which obviously had failed., This observation made by the Hon'ble Supreme Court squarely applies to the case on hand. The facts of the case are not in dispute. The petitioner underwent Puerperal Sterilization by Tubectomy on 23 July 2013 after her second delivery. The surgery was performed by the sixth respondent doctor in the fifth respondent hospital. The discharge summary issued by the hospital and the information obtained by the petitioner under the Right to Information Act prove the same., The petitioner's contention is that she was already blessed with two children and the birth of a new child put her and her husband under a burden of rearing the child and bearing all expenses including maintenance, food, clothes, education and marriage. Therefore, she underwent the sterilization operation and was made to believe that after the operation she would not conceive again. But she conceived and ultimately gave birth to a third child despite the operation. Hence, it cannot be brushed aside that without any negligence or carelessness on the part of the doctor who performed the sterilization operation, she gave birth naturally., In fact, after the third delivery, the petitioner underwent the very same procedure for the second time and after that she did not conceive. Therefore, the act of the doctor who performed the first sterilization operation can be held to have not been performed with the best of ability, due care and caution, and because of that the petitioner suffered mental pain, agony and a financial burden., A similar case came up for consideration before this Court in the Principal Seat in Dhanam v. Secretary to Government, Health & Family Welfare Department, Chennai and Others [CDJ 2022 MHC 7836], wherein this Court held that the petitioner is entitled to compensation appropriately in respect of her third child, who miserably became her 'unwanted child'., Learned Additional Government Pleader, by referring to Government Order G.O.Ms. No.150, Health & Family Welfare Department, dated 28 May 2014, submitted that as per the scheme the petitioner is entitled to a compensation of Rupees Thirty Thousand (Rs. 30,000). He further submitted that there was no element of tort involved nor had the petitioner suffered any loss which could be compensated in terms of money., This contention of the respondents was also addressed by the Madras High Court in Dhanam's case (supra) and was answered as follows: Negligence is a tort. Every doctor who enters the medical profession has a duty to act with a reasonable degree of care and skill. This is known as an implied undertaking by a member of the medical profession that he would use a fair, reasonable and competent degree of skill. Under English law as laid down in Bolam v. Friern Hospital Management Committee (1957) 2 All ER 118, a doctor who acts in accordance with a practice accepted as proper by a responsible body of medical men is not negligent merely because there is a body of opinion that takes a contrary view. In two decisions rendered by the Hon'ble Supreme Court, viz. Dr. Laxman Balakrishna Joshi v. Dr. Trimbak Bapu Godbole & Anr. AIR 1969 SC 128 and A.S. Mittal v. State of U.P. AIR 1989 SC 1570, it was laid down that when a doctor is consulted by a patient, the doctor owes to his patient certain duties: (a) a duty of care in deciding whether to undertake the case; (b) a duty of care in deciding what treatment to give; and (c) a duty of care in the administration of that treatment. A breach of any of the above duties may give a cause of action for negligence and the patient may on that basis recover damages from his doctor., The word 'duty' connotes the relationship between one party and another, imposing on the one an obligation for the benefit of the other to take reasonable care in the first instance. Viewed from this angle, when the petitioner approached the third respondent for sterilization, it was with the clear objective not to bear any more children. It was therefore the duty of the respondents to ensure that the operation was successful. In fact, the duty of the medical practitioner arises from the fact that he does something to a human being which is likely to cause physical damage unless it is done with proper care and skill., In the instant case, the petitioner was not suffering from any disease for treatment of which she had gone to the hospital authorities. She is a normal healthy person who approached the hospital authorities to prevent the birth of an unwanted child. There was no question of error of judgment in performing the operation properly; it could have been simply a case of failure. If, in spite of this operation, she conceived and gave birth to a child, it establishes that something amiss occurred while performing the operation and one can deduce that the standard of reasonable care expected of the doctor was not taken., It may be mentioned at the cost of repetition that in the counter‑affidavit the respondents have not at all stated that instead of taking reasonable care in performing the sterilization operation, there could be a conception. The respondents blamed the petitioner only to the extent that she did not approach the hospital immediately after the stoppage of her menstrual periods so that the situation could have been rectified. Therefore, the failure of the sterilization operation was not seriously disputed by the respondents and for such failure the petitioner was even offered Rupees Thirty Thousand as per the scheme. This Court fails to understand how the negligence on the part of the medical officer who performed the sterilization operation could be made good by just awarding Rupees Thirty Thousand irrespective of the petitioner’s status, who does not wish to have any more children because she was already blessed with two female children and, due to her poor financial ability, cannot maintain a third child., In such circumstances, the third child is considered an unwanted child which had virtually taken birth only due to negligence on the part of the third respondent in performing the sterilization operation. Therefore, once the child is declared an unwanted child to the family of the petitioner, the State has to bear the expenses in bringing up the unwanted child and it becomes the obligation of the State., Family Planning is a National Programme being implemented through various government hospitals and health centres. The implementation of the programme is directly in the hands of the Government, including the medical officers. The medical officers entrusted with the implementation of the Family Planning Programme cannot, by their negligent acts in not performing a complete sterilization operation, sabotage a scheme of national importance. The people of the country who cooperate by offering themselves voluntarily for sterilization reasonably expect that after undergoing the operation they will be able to avoid further pregnancy and the consequent birth of an additional child. As such, the petitioner also offered herself voluntarily for sterilization; however, things went sideways due to improper performance of the doctor, by which she gave birth to the third child., In Santra's case (supra), the Hon'ble Supreme Court held that there was negligence on the part of the doctors and ultimately the State Government was responsible for the negligence. The Hon'ble Supreme Court ultimately upheld the compensation ordered by the Court below, observing that in a developing country where the majority of people live below the poverty line, damages for the birth of an unwanted child cannot be denied to poor families., By referring to this decision, the Madras High Court, in Dhanam's case (supra), ordered compensation as follows: The petitioner is entitled to compensation of Rupees Three Lakh (Rs. 3,00,000). In addition, upon attaining the age of five years, the respondents are directed to admit the third child of the petitioner in a government or private school. She shall be provided free education; no fee shall be charged and all school fees and other fees paid shall be refunded by the respondents. All expenses on books, stationery, uniforms and other miscellaneous educational expenses shall also be met by the respondents. Further, the respondents shall pay Rupees One Lakh Twenty Thousand (Rs. 1,20,000) per year, i.e., Rupees Ten Thousand per month, to meet the child's needs for food and proper upbringing till she completes her graduation or attains twenty‑one years, whichever is earlier. The benefits granted by the Government under the female child scheme shall also be extended to the petitioner., Following the same and considering the economic and social background of the petitioner and other circumstances, this Court passes the following order: The petitioner is entitled to compensation of Rupees Three Lakh. The respondents shall provide free education to the third child of the petitioner, either in a government school or a private school. Any fees already paid shall be refunded and all expenses on books, stationery, uniforms and other miscellaneous educational expenses shall be met by the respondents. Further, the respondents shall pay a sum of Rupees One Lakh Twenty Thousand per year (Rupees Ten Thousand per month) to meet the child's needs for food and proper upbringing till the child completes graduation or attains twenty‑one years, whichever is earlier. With the above directions, the writ petition stands disposed of. No costs. Consequently, the connected miscellaneous petition stands closed.
id_475	0	The Roster of Sitting of the Hon'ble Judges of this Court effective from 28.11.2022 is as under:, Division Bench: Hon'ble Mr. Justice Satish Chandra Sharma (Chief Justice) and Hon'ble Mr. Justice Subramonium Prasad. 1) All Public Interest Litigation matters. 2) Letters Patent Appeals (other than service matters) for the years 2021 and 2022. 3) Letters Patent Appeals (pertaining to service) of the years 2021 and 2022. 4) Writ Petitions challenging the constitutional validity of any Act, Statutory Rule, Regulation or Notification other than tax for the years 2021 and 2022. 5) Writ Petitions challenging constitutional validity of any Act, Statutory Rule, Regulation or Notification impacting criminal investigation, trial, prosecutions etc. 6) Writ Petitions (Tender). 7) Miscellaneous Writ Petitions invoking constitutional provisions and Writ Petitions other than the specified categories. 8) Matters to be heard by the Commercial Appellate Division. 9) Regular hearing matters of the above categories., Division Bench: Hon'ble Mr. Justice Siddharth Mridul and Hon'ble Mr. Justice Talwant Singh. 1) Matters relating to street vendors/Tehbazari. 2) First Appeals from Orders (Original Side) of the year 2022. 3) Criminal Contempt Petitions. 4) Criminal Contempt References. 5) Criminal Writ Petitions including those relating to Habeas Corpus and Preventive Detention. 6) Criminal Appeals for the years 2020, 2021 and 2022. 7) Matters to be heard by the Commercial Appellate Division. 8) Regular hearing matters of the above categories., Division Bench: Hon'ble Mr. Justice Manmohan and Hon'ble Mr. Justice Saurabh Banerjee. 1) Writ Petitions challenging the constitutional validity of any Act, Statutory Rule, Regulation or Notification other than tax up to the year 2019. 2) Writ Petitions challenging orders passed by the High Court on the administrative side. 3) Intellectual Property Rights Appellate Division to hear all categories of matters relating to IPR. 4) Matters to be heard by the Commercial Appellate Division. 5) Regular hearing matters of the above categories., Division Bench: Hon'ble Mr. Justice Rajiv Shakdher and Hon'ble Ms. Justice Tara Vitasta Ganju. 1) Writ Petitions challenging constitutional validity of any Act, Statutory Rule, Regulation or Notification pertaining to tax (including municipal tax). 2) Income Tax References, Wealth Tax and Gift Tax cases. 3) Income Tax Appeals. 4) Writ Petition (Tax) other than those listed before DB-IV. 5) Matters to be heard by the Commercial Appellate Division. 6) Regular hearing matters of the above categories., Division Bench: Hon'ble Mr. Justice Suresh Kumar Kait and Hon'ble Ms. Justice Neena Bansal Krishna. 1) Writ petitions (Service) relating to Armed Forces. 2) Contempt Appeals. 3) Regular First Appeals (Original Side). 4) Matters to be heard by the Commercial Appellate Division. 5) Regular hearing matters of the above categories., Division Bench: Hon'ble Ms. Justice Mukta Gupta and Hon'ble Ms. Justice Poonam A. Bamba. 1) Writ Petitions challenging constitutional validity of any Act, Statutory Rule, Regulation or Notification impacting criminal investigations, trials, prosecutions etc. 2) Criminal Appeals up to the year 2019. 3) Death Sentence References. 4) Criminal Leave Petitions. 5) Criminal Revision Petitions. 6) Matters to be heard by the Commercial Appellate Division. 7) Regular hearing matters of the above categories., Division Bench: Hon'ble Mr. Justice Najmi Waziri and Hon'ble Mr. Justice Sudhir Kumar. 1) Writ Petitions relating to MTNL, MCD and NDMC. 2) Letters Patent Appeals up to the year 2017. 3) First Appeals from Orders (Original Side) up to the year 2018. 4) Letters Patent Appeals (pertaining to service) of the years 2018, 2019 and 2020. 5) Execution First Appeals (Original Side). 6) Matters to be heard by the Commercial Appellate Division. 7) Regular hearing matters of the above categories., Division Bench: Hon'ble Mr. Justice Sanjeev Sachdeva and Hon'ble Mr. Justice Rajnish Bhatnagar. 1) Miscellaneous Appeals (PMLA). 2) RERA Appeals. 3) Writ Petitions challenging constitutional validity of any Act, Statutory Rule, Regulation or Notification pertaining to Service. 4) Appeals against the orders of the Family Courts. 5) Matters to be heard by the Commercial Appellate Division. 6) Regular hearing matters of the above categories., Division Bench: Hon'ble Mr. Justice Vibhu Bakhru and Hon'ble Mr. Justice Purushaindra Kumar Kaurav. 1) Writ Petitions challenging the constitutional validity of any Act, Statutory Rule, Regulation or Notification other than tax for the year 2020. 2) Letters Patent Appeals (other than service matters) for the years 2018, 2019 and 2020. 3) Sales Tax cases and GST cases plus Service Tax references. 4) First Appeals from Orders (Original Side) of the years (unspecified). 5) Company Appeals. 6) Service Tax cases, Central Excise Act cases, Custom Act cases and VAT Appeals. 7) Writ Petitions pertaining to Service Tax, Central Excise Act, Custom Act and Value Added Tax cases. 8) Regular First Appeals from orders of the Copyright Board. 9) Matters to be heard by the Commercial Appellate Division. 10) Regular hearing matters of the above categories., Division Bench: Hon'ble Mr. Justice V. Kameswar Rao and Hon'ble Mr. Justice Anoop Kumar Mendiratta. 1) Writ Petitions (Service) arising out of the orders of the Central Administrative Tribunal. 2) Writ Petitions (Co-operative Societies). 3) Writ Petitions (Land Acquisition). 4) Writ petitions pertaining to Service Matters required to be listed before the Division Bench. 5) Appeals under the Chartered Accountants Act. 6) Matters to be heard by the Commercial Appellate Division. 7) Regular hearing matters of the above categories., Single Bench (Civil Jurisdiction): Hon'ble Ms. Justice Rekha Palli. 1) Civil Miscellaneous Main (Motor Vehicles Act). 2) MACT Appeals from the year 2016 onwards. 3) Land Acquisition Appeals up to the year 2018. 4) Civil Writ Petitions relating to nationalised banks and financial institutions. 5) Civil Writ Petitions (Labour) from the year 2011 onwards. 6) Transfer Petitions (Civil). 7) All categories of matrimonial cases. 8) Regular hearing matters of the above categories., Single Bench (Civil Jurisdiction): Hon'ble Ms. Justice Prathiba M. Singh. 1) Civil Writ Petitions miscellaneous including those involving statutory authorities, DTC, Urban Arts Commission, Airport Authority of India etc. from the years 2018 to 2022. 2) Civil Writ Petitions (RTI). 3) Regular hearing matters of the above categories., Single Bench (Civil Jurisdiction): Hon'ble Ms. Justice Jyoti Singh. 1) Civil Writ Petitions (Service) from the year 2016 onwards. 2) Regular First Appeals of the years 2020, 2021 and 2022. 3) First Appeals from Orders (MACT). 4) Civil Revision Petitions. 5) Regular hearing matters of the above category., Single Bench (Civil Jurisdiction): Hon'ble Mr. Justice Manoj Kumar Ohri. 1) Civil Writ Petitions (Railways, Cantonment Board, Electricity, DJB and MTNL). 2) Civil Writ Petitions (MCD). 3) Civil Writ Petitions (NDMC). 4) Civil Writ Petitions (Waqf Board). 5) Civil Writ Petitions (STA). 6) First Appeals from Orders (other than Motor Vehicles Act). 7) Regular hearing matters of the above categories., Single Bench (Civil Jurisdiction): Hon'ble Ms. Justice Mini Pushkarna. 1) Civil Writ Petitions relating to land reforms including matters relating to allotment of alternative land. 2) All categories of cases under the Protection of Children Act. 3) Civil Writ Petitions (Service) up to the year 2015. 4) Regular First Appeals up to the year 2014. 5) Regular First Appeals for the year 2022. 6) Civil Writ Petitions (Education) relating to admissions in schools, CBSE matters, evaluation of marks in examinations and matters relating to managing committees of aided schools. 7) Regular hearing matters of the above categories., Single Bench (Civil Jurisdiction): Hon'ble Mr. Justice Vikas Mahajan. 1) Civil Writ Petitions (Education). 2) Civil Writ Petitions (Election). 3) Civil Writ Petitions (Sexual Harassment at Workplace and Mines). 4) Regular hearing matters of the above categories., Single Bench (Civil Jurisdiction): Hon'ble Mr. Justice Tushar Rao Gedela. 1) Civil Writ Petitions miscellaneous including those involving statutory authorities, DTC, Urban Arts Commission, Airport Authority of India etc. up to the year 2012. 2) Civil Miscellaneous Main (other than Motor Vehicles Act, Protection of Children Act and matrimonial cases). 3) Land Acquisition Appeals of 2019, 2020, 2021 and 2022. 4) Regular First Appeals of the years 2017, 2018 and 2019. 5) Regular Second Appeals. 6) Execution First Appeals. 7) Execution Second Appeals. 8) Original Reference. 9) Regular hearing matters of the above category., Single Bench (Civil Jurisdiction): Hon'ble Ms. Justice Manmeet Pritam Singh Arora. 1) Civil Writ Petitions (DDA). 2) Civil Contempt Petitions. 3) Rent Control Revisions. 4) Regular hearing matters of the above categories., Single Bench (Civil Jurisdiction): Hon'ble Mr. Justice Gaurang Kanth. 1) Civil Writ Petitions miscellaneous including those involving statutory authorities, DTC, Urban Arts Commission, Airport Authority of India etc. from the year 2013 to 2017. 2) Regular First Appeals of the years 2015, 2016 and 2022. 3) Civil Writ Petitions (Labour) up to the year 2010. 4) MACT Appeals up to the year 2015. 5) Regular hearing matters of the above categories., Single Bench (Criminal Jurisdiction): Hon'ble Mr. Justice Yogesh Khanna. 1) Bail matters. 2) Criminal Appeals of the year 2022. 3) Criminal Revision Petition of the years 2017 and 2022. 4) Criminal Miscellaneous Main cases of the years 2021 and 2022. 5) Criminal Leave Petitions of the years 2019 and 2022. 6) Writ Petitions (Criminal) of the years 2016 to 2019 and 2022. 7) Cases relating to sexual harassment. 8) Regular hearing matters of the above categories., Single Bench (Criminal Jurisdiction): Hon'ble Mr. Justice Anup Jairam Bhambhani. 1) Bail matters. 2) Criminal Appeals of the years 2015, 2016 and 2022. 3) Criminal Miscellaneous Main cases of the years 2017 and 2022. 4) Criminal Revision Petitions of the year 2022. 5) Criminal Leave Petitions of the year 2022. 6) Writ Petitions (Criminal) of the years 2020 and 2022. 7) Cases relating to sexual harassment. 8) Regular hearing matters of the above categories., Single Bench (Criminal Jurisdiction): Hon'ble Mr. Justice Jasmeet Singh. 1) Bail matters. 2) Criminal Appeals up to the years 2006, 2020 and 2022. 3) Criminal Miscellaneous Main cases of the year 2022. 4) Criminal Revision Petitions of the years 2014 and 2022. 5) Writ Petitions (Criminal) of the years 2021 and 2022. 6) Criminal Leave Petitions of the years 2018 and 2022. 7) Cases relating to sexual harassment. 8) Regular hearing matters of the above categories., Single Bench (Criminal Jurisdiction): Hon'ble Mr. Justice Dinesh Kumar Sharma. 1) Bail matters. 2) Criminal Appeals of the years 2007, 2008, 2019 and 2022. 3) Criminal Miscellaneous Main cases of the years 2019 and 2022. 4) Criminal Revision Petitions of the years 2015, 2016 and 2022. 5) Writ Petitions (Criminal) of the year 2022. 6) Criminal Leave Petitions of the years 2021 and 2022. 7) Criminal cases relating to sitting/former MPs/MLAs. 8) Cases relating to sexual harassment. 9) Regular hearing matters of the above categories., Single Bench (Criminal Jurisdiction): Hon'ble Ms. Justice Swarana Kanta Sharma. 1) Bail matters. 2) Criminal Appeals of the years 2009, 2010, 2011 and 2022. 3) Criminal Miscellaneous Main cases up to the year 2010 and of the years 2020 and 2022. 4) Criminal Revision Petitions of the years 2018 and 2022. 5) Writ Petitions (Criminal) up to the years 2015 and 2022. 6) Cases relating to sexual harassment. 7) Regular hearing matters of the above categories., Single Bench (Criminal Jurisdiction): Hon'ble Mr. Justice Amit Mahajan. 1) Bail matters. 2) Writ Petitions (Criminal) of the year 2022. 3) Criminal Appeals of the years 2012, 2013, 2014 and 2022. 4) Criminal Miscellaneous Main cases of the years 2015, 2016 and 2022. 5) Criminal Revision Petition of the years 2020 and 2022. 6) Cases relating to sexual harassment. 7) Regular hearing matters of the above categories., Single Bench (Criminal Jurisdiction): Hon'ble Mr. Justice Anish Dayal. 1) Bail matters. 2) Criminal Appeals of the years 2021 and 2022. 3) Criminal Revision Petition of the years 2021 and 2022. 4) Criminal Leave Petitions up to the years 2017, 2020 and 2022. 5) Criminal Miscellaneous Main cases of the years 2018 and 2022. 6) Writ Petitions (Criminal) of the year 2022. 7) Transfer Petitions (Criminal). 8) Cases relating to sexual harassment. 9) Regular hearing matters of the above categories., Single Bench (Criminal Jurisdiction): Hon'ble Mr. Justice Amit Sharma. 1) Bail matters. 2) Criminal Appeals of the years 2017, 2018 and 2022. 3) Criminal Miscellaneous Main cases of the years 2011, 2012, 2013. 4) Criminal Revision Petitions up to the year 2013 and of the years 2019 and 2022. 5) Writ Petitions (Criminal) of the year 2022. 6) Cases relating to sexual harassment. 7) Regular hearing matters of the above categories., Original Jurisdiction (Civil): Hon'ble Mr. Justice Yashwant Varma (Judge-in-Charge, C Court). 1) Matters to be heard by the Commercial Division. 2) Original Side matters (including finals) of the years 2019 and onward. 3) Matters under the Arbitration Act, 1940 and Arbitration and Conciliation Act, 1996 of the years 2021 and 2022. 4) All Execution Petitions including those under the Arbitration Act, 1940 and Arbitration and Conciliation Act, 1996 of the years 2021 and 2022. 5) Regular hearing matters of the aforesaid categories., Original Jurisdiction (Civil): Hon'ble Mr. Justice Navin Chawla (F Court). 1) Matters to be heard by the Commercial Division. 2) Original Side matters (including finals) of the years 2014 onward. 3) Matters under the Arbitration Act, 1940 and Arbitration and Conciliation Act, 1996 (including finals) of the years unspecified. 4) Regular hearing matters of the aforesaid categories., Original Jurisdiction (Civil): Hon'ble Mr. Justice Chandra Dhari Singh (G Court). 1) Matters to be heard by the Commercial Division. 2) Matters under the Arbitration Act, 1940 and Arbitration and Conciliation Act, 1996 (including finals) of the years 2019 onward. 3) Original Side matters (including finals) up to the year 2013 and of the years 2021 and 2022. 4) Regular hearing matters of the aforesaid categories., Original Jurisdiction (Civil): Hon'ble Mr. Justice Prateek Jalan (A Court). 1) Matters to be heard by the Commercial Division. 2) Original Side matters (including finals) of the years unspecified. 3) Matters under the Arbitration Act, 1940 and Arbitration and Conciliation Act, 1996 (including finals) of the years 2015, 2017, 2018, 2019, 2020, 2021 and 2022. 4) Execution Petitions under the Arbitration Act, 1940 and Arbitration and Conciliation Act, 1996 up to the year 2020. 5) Regular hearing matters of the aforesaid categories., Original Jurisdiction (Civil): Hon'ble Mr. Justice Sachin Datta (D Court). 1) Matters to be heard by the Commercial Division. 2) Original Side matters (including finals) of the year 2018. 3) Matters under the Arbitration Act, 1940 and Arbitration and Conciliation Act, 1996 (including finals) up to 2014 and of the years 2020, 2021 and 2022. 4) Regular hearing matters of the aforesaid categories., Intellectual Property Rights Division: Hon'ble Mr. Justice C. Hari Shankar (E Court). 1) Matters to be heard by the Commercial Division relating to IPR disputes. 2) Matters relating to Intellectual Property Rights. 3) IPR suits of the years 2021 and 2022. 4) Regular hearing matters of the above category., Intellectual Property Rights Division: Hon'ble Mr. Justice Sanjeev Narula (I Court). 1) Matters to be heard by the Commercial Division relating to IPR disputes. 2) Matters relating to Intellectual Property Rights. 3) IPR suits up to the year 2014 and of the years 2019, 2020 and 2022. 4) All company matters. 5) Regular hearing matters of the above category., Intellectual Property Rights Division: Hon'ble Mr. Justice Amit Bansal (H Court). 1) Matters to be heard by the Commercial Division relating to IPR disputes. 2) Matters relating to Intellectual Property Rights. 3) IPR suits of the years 2015, 2016, 2017, 2018 and 2022. 4) Regular hearing matters of the above category., General Notes: All fresh Public Interest Litigations shall be listed before the Division Bench presided over by the Chief Justice. Mentioning of urgent matters will be before Division Bench I. Matters other than part-heard, presently pending before various benches shall be transferred to the respective benches as per the above roster. Regular/final hearing matters will be listed chronologically so that older matters can be given priority in disposal. Specially directed matters may be assigned by the Chief Justice to any of the above benches or any of the Hon'ble Judges sitting singly or to specially constituted benches. The Commercial Appellate Division has been constituted with ten Division Benches, namely Division Bench I; members of said Division Benches, as per the present roster, have been nominated to be the Judges of the Commercial Appellate Division. Matters to be heard by the Commercial Appellate Division shall be assigned by the Chief Justice amongst the seven Commercial Appellate Divisions. The Commercial Division consists of eight benches of a single judge each. Hon'ble Mr. Justice Yashwant Varma, Hon'ble Mr. Justice Navin Chawla, Hon'ble Mr. Justice C. Hari Shankar, Hon'ble Mr. Justice Chandra Dhari Singh, Hon'ble Mr. Justice Prateek Jalan, Hon'ble Mr. Justice Sanjeev Narula, Hon'ble Mr. Justice Amit Bansal and Hon'ble Mr. Justice Sachin Datta have been nominated to be the Judges of the Commercial Division. Hon'ble Mr. Justice C. Hari Shankar, Hon'ble Mr. Justice Sanjeev Narula and Hon'ble Mr. Justice Amit Bansal have been nominated to function as the Intellectual Property Rights Division. Matters to be heard by the Intellectual Property Rights Division shall be assigned by the Hon'ble Judge-in-Charge (Original Side) amongst the three IPR Divisions. In the event of change in the Judges nominated by the Chief Justice constituting the Commercial Division and Commercial Appellate Division, part-heard matters shall stand transferred to the Hon'ble Judge who will have the power of Commercial Division and Commercial Appellate Division, limited to that case only. The Hon'ble Judge-in-Charge, Original Side will distribute fresh Arbitration Matters including Commercial Matters under the Arbitration Act, 1940 and the Arbitration and Conciliation Act. The Hon'ble Judge-in-Charge, Original Side will mark matters other than Arbitration Matters. All the Hon'ble Judges on the Original Side are empowered to deal with suits/petitions arising under the Arbitration and Conciliation Act, 1996 falling under Section 20-B of the Specific Relief Act, 1963. All fresh bail applications shall be equally distributed amongst all the Single Bench Judges sitting on the Criminal Roster. Fresh criminal leave petitions shall be equally distributed between Hon'ble Mr. Justice Yogesh Khanna, Hon'ble Mr. Justice Anup Jairam Bhambhani, Hon'ble Mr. Justice Jasmeet Singh, Hon'ble Mr. Justice Dinesh Kumar Sharma and Hon'ble Ms. Justice Swarana Kanta Sharma. Fresh criminal appeals shall be equally distributed amongst Hon'ble Mr. Justice Yogesh Khanna, Hon'ble Mr. Justice Anup Jairam Bhambhani, Hon'ble Mr. Justice Jasmeet Singh, Hon'ble Mr. Justice Dinesh Kumar Sharma, Hon'ble Ms. Justice Swarana Kanta Sharma, Hon'ble Mr. Justice Amit Mahajan, Hon'ble Mr. Justice Anish Dayal and Hon'ble Mr. Justice Amit Sharma. Fresh criminal writ petitions shall be equally distributed amongst the same judges. Fresh criminal revision petitions shall be equally distributed amongst the same judges. Fresh criminal miscellaneous main cases shall be equally distributed amongst the same judges. Fresh cases relating to sexual harassment shall be distributed category‑wise according to the roster. All pending bail applications filed up to 24‑11‑2022 shall be equally distributed amongst all Single Bench Judges sitting on the Criminal Roster. All criminal appeals of the year 2022 pending on the board of Hon'ble Mr. Justice Sudhir Kumar Jain shall be transferred to the court of Hon'ble Mr. Justice Jasmeet Singh. All criminal miscellaneous main cases of the year 2022 pending on the board of Hon'ble Mr. Justice Sudhir Kumar Jain shall be transferred to the court of Hon'ble Mr. Justice Dinesh Kumar Sharma. All criminal revision petitions of the year 2022 pending on the board of Hon'ble Mr. Justice Sudhir Kumar Jain shall be transferred to the court of Hon'ble Mr. Justice Amit Sharma. All writ petitions (Criminal) of the year 2022 pending on the board of Hon'ble Mr. Justice Sudhir Kumar Jain shall be transferred to the court of Hon'ble Mr. Justice Anup Jairam Bhambhani. All original side matters (including finals) of the years 2016, 2017 and 2022 pending on the board of Hon'ble Ms. Justice Mini Pushkarna shall be transferred to the court of Hon'ble Mr. Justice Prateek Jalan. All original side matters (including finals) of the year 2019 pending on the board of Hon'ble Ms. Justice Mini Pushkarna shall be transferred to the court of Hon'ble Mr. Justice Yashwant Varma. All original side matters (including finals) of the year 2018 pending on the board of Hon'ble Ms. Justice Mini Pushkarna shall be transferred to the court of Hon'ble Mr. Justice Sachin Datta. Cases of convicts/appellants in jail whose sentence is about to be completed or who have completed the substantial period of the maximum sentence of the offence charged shall be taken up on a priority basis and every endeavour should be made to dispose of the same expeditiously.
id_477	0	Petitioner: Shrimati Shikha (Corpus) and Another. Respondent: State of Uttar Pradesh and three others. Counsel for petitioner: Manoj Kumar Tiwari. Counsel for respondent: Advocate G. A., Honourable Pankaj Naqvi, Judge; Honourable Vivek Agarwal, Judge., Heard Shri Manoj Kumar Tiwari, learned counsel for the petitioners, Shri Ajay Vikram Yadav, learned counsel for the informant and Shri Gambhir Singh, learned Additional Government Advocate for the State., This writ petition has been filed seeking a writ of direction in the nature of mandamus directing Respondent No. 2 and Respondent No. 3 to produce the corpus., Shri Vipin Kumar, the Investigating Officer, along with the corpus is present pursuant to the previous order. He produced the case diary in which a certificate issued by the Head Master, Higher Primary Education, Etah is enclosed, clearly mentioning that the corpus took admission in the school on 14 July 2005 in class I, serial number 616 in the scholar register, where her date of birth is mentioned as 04 October 1999. A copy of the scholar register is enclosed along with the case diary. Therefore, the requirement of Section 94 of the Juvenile Justice Act, 2015 in regard to presumption and determination of age is fulfilled., The learned Chief Judicial Magistrate, not appreciating the provisions of Section 94 of the Juvenile Justice Act, held that when a certificate from school is available then any other evidence becomes secondary in nature and should not be relied upon, especially when the birth certificate produced by the respondent on 25 March 2019, issued by the competent authority, mentions the date of registration of birth as 17 March 2019. This certificate will not take precedence over the school entry register and the certificate issued on the basis of the scholar register., We interacted with the corpus who submits that she is a major, her date of birth is 04 October 1999, she has attained the age of majority and has entered into a wedlock. She submits that she wants to live with her husband namely Salman also known as Karan who is also present in the Court., As the corpus has attained the age of majority and she has a choice to live her life on her own terms and she has expressed that she wants to live with her husband Salman also known as Karan, she is free to move as per her own choice without any restriction or hindrance being created by any third party., The learned Chief Judicial Magistrate, Etah, vide order dated 07 December 2020, had handed over the corpus into the custody of the Child Welfare Committee, Etah, which on 08 December 2020 handed over the custody to her parents without any application of mind and against her wish., The act of the Chief Judicial Magistrate, Etah and that of the Child Welfare Committee, Etah reflects lack of appreciation of legal provisions., The petition is allowed. The First Information Report dated 27 September 2020, registered as FIR No. 0371 of 2020, under Section 366 of the Indian Penal Code, Police Station Kotwali Dehat, District Etah, is hereby quashed., The Investigating Officer will ensure that appropriate protection is granted to the corpus and her husband till they return to their residence., The Senior Superintendent of Police, Prayagraj, is directed to provide necessary police security for safe passage of the couple.
id_478	0	Through: Mr. Rahul Beruar and Ms. Jyotsana Sinha, Advocates versus Through: Mr. Kunal Rakwar, Advocate for Defendant; Ms. Geetanjali Visvanathan, Advocate for Ms. Mamta Jha; Ms. Shruttima Ehersha and Mr. Roshan Ahuja, Advocates for Defendant No. 4; Mr. Ninad Dogra, Advocate for Defendant No. 11; Mr. Saurabh Kumar and Ms. Rose Sebi, Advocates for Defendant No. 8 (LinkedIn: saurabhk@luthra.com). Interim Application 26292/2023 (under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure)., Pursuant to the previous order directing the plaintiff to ensure service of notice on the defendants, Mr. Kunal Rakwar, Advocate, appeared via video conference on behalf of Defendant No. 1. Defendant Nos. 2 and 3, who are Domain Name Registrars, and Defendant Nos. 4, 5 and 6, who are social media platforms, were represented through counsel before the Delhi High Court. Counsel for Defendant No. 8, LinkedIn Corporation, was also present via video conference. The remaining defendants were served as per the plaintiff’s counsel, but no one appeared on their behalf., The essential grievance of the plaintiff is against Defendant No. 1 for using the trademark AAJ TAK WATCH NEWS (YouTube channel) and multiple social media profiles under the same mark, as well as the domain names and the publication titled \AAJTAK WATCH\. The plaintiff alleges that the use of these marks infringes its trademarks because they are deceptively similar. The plaintiff claims to be part of the well‑reputed and well‑established India Today Group, one of India’s most respected and diversified media conglomerates, engaged in printing and publishing of magazines, journals, periodicals and newspapers, infotainment programmes, and organising conferences, seminars, music shows and related activities. Plaintiff No. 2, a subsidiary of Plaintiff No. 1, operates popular electronic news channels, including the news channel \AAJ TAK\ as well as FM radio channels., The marks of the plaintiff \AAJ TAK\ have been registered as detailed in the trademark registry. The plaintiff has applied for a declaration of its trademark \AAJ TAK\ as a well‑known trademark. The Trademark Registry issued an advertisement in the Trademarks Journal dated 12 June 2023, allowing a period of 30 days for any opposition. Counsel for the plaintiff informs that, as per their instructions, no opposition was received and the mark being declared as a well‑known trademark is now a mere formality., Counsel drew attention to the fact that the infringing mark is being used by the defendant, who broadcasts on a YouTube channel and publishes a newspaper in the name of \AAJTAK WATCH\ through the State of Gujarat. The defendant has also applied for a trademark (Application No. 5553325) in Class 16 on a \proposed to be used\ basis. The application was filed on 1 August 2022 and discovered by the plaintiff in November 2023 during a review of the Trademark Registry’s online records. The website uses the infringing mark and, according to WHOIS records, has been registered in the name of Defendant No. 1 since 6 July 2022. Further investigation revealed that Defendant No. 1’s YouTube channel \AAJ TAK WATCH NEWS\ was established on 17 October 2022. An email address aajtakwatch07@gmail.com was also found on the YouTube page, which mentioned an associated website. Defendant No. 3, a Domain Name Registrar, is listed as the registrar of the impugned domain name aajtakwatchnews.com and Defendant No. 2 is the registrar for aajtakwatch.in., The plaintiff further discovered Defendant No. 1’s social media profiles on Facebook, X (formerly Twitter), Instagram, LinkedIn, Telegram, Koo and other platforms, which have been duly arrayed as defendants. The details of the handles are as follows: Facebook profile titled \AAJTAK WATCH NEWS\ created in February 2023 with handle @AajTakWatchNews; X profile titled \Aajtak Watch News\ established in October 2022 with handle @Aajtakwatch07; Instagram profile titled \aajtakwatchnews\; LinkedIn profile titled \Aajtak Watch News\ established in February 2023; Telegram group titled \Aajtak Watch News\; Koo profile titled \Aajtak Watch News\ with handle @aajtakwatchnews; Moj profile titled \Aajtak Watch News\ with handle @aajtakwatchnews; Vimeo profile titled \Aajtak Watch News\; ShareChat profile titled \Aajtak Watch News\; Tumblr profile titled \Aajtak Watch News\; Chingari profile titled \Aajtak Watch News\., Counsel for the plaintiff states that the device sought to be registered by Defendant No. 1 is deceptively similar not only to the plaintiff’s mark but also uses the logo employed by ABP News, ABP Private Limited, the registration details of which have been handed up in the Delhi High Court today., Counsel for the plaintiff further contends that similar orders relating to correction of the plaintiff’s mark have been passed by this Court, inter alia, in Living Media India Ltd v. Satbir Bhardwaj & Ors., Civil Suit (Commercial) No. 235/2022 and in Living Media India Ltd v. aajtak.co.in & Ors., Counsel for Defendant No. 1, on instruction, states that they have been publishing the newspaper \AAJ TAK WATCH\ since 2015 from Surat, Gujarat, and that Defendant No. 1 is registered with the Registrar of Newspapers for India for the purpose of the newspaper. Defendant No. 1 shall furnish details of registration and use in their reply. Counsel further states that, with respect to digital media, they have been broadcasting news on these digital platforms since 2022. Defendant No. 1 shall file a reply to this application within the next four weeks with a copy to the opposing counsel, who may file a rejoinder thereafter, before the next date., In view of the above contentions and after perusal of the pleadings and documents, the Delhi High Court is of the view that the plaintiff has made out a prima facie case for the grant of an ad interim injunction. The balance of convenience lies in favour of the plaintiff and it is likely that the plaintiff would suffer irreparable loss if the injunction is not granted., Accordingly, till the next date of hearing, Defendant No. 1, through its promoters, partners, managers, employees, principals, agents, associates, affiliates, licensees, distributors or any others acting on its behalf, directly or indirectly, is restrained from using the plaintiff’s marks \AAJ TAK\ or any other trademark identical or deceptively similar to the plaintiff’s registered trademarks, in any manner, in relation to any digital media platform including websites, social media and any other content‑sharing digital platform. In this regard, Defendant No. 1 is further restrained from using the said impugned marks in any promotional material for its digital platform till the next date of hearing., Defendant No. 1 is further restrained from using the mark \AAJ TAK\ as part of its domain name and email address and must immediately deactivate the same. Defendant No. 1 is also directed to immediately deactivate all social media handles that use the impugned marks of the plaintiff. Defendant No. 1 shall file an affidavit of compliance in this regard within the next two weeks before the Delhi High Court, with a copy to the plaintiff’s counsel., If Defendant No. 1 does not comply with the directions in the preceding paragraph for any reason whatsoever, the Domain Name Registrars, being Defendant Nos. 2 and 3, are directed to take steps to suspend, deactivate or block the domain names of Defendant No. 1 that contain the word mark \AAJ TAK\, namely aajtakwatch.in and aajtakwatchnews.com. Defendant Nos. 4 shall ensure that the YouTube channel of Defendant No. 1 is deactivated or suspended till the next date of hearing. Defendant Nos. 5, 6 and 8‑14 shall ensure that the social media handles of Defendant No. 1, as noted above, are deactivated or suspended till the next date of hearing. In this regard, the plaintiff is entitled to address a communication through email to the said defendants in the event of lack of compliance by Defendant No. 1., List before the Joint Registrar on 19 March 2024. List before the Delhi High Court on 6 May 2024., Interim Application 26291/2024 (exemption from pre‑litigation mediation): This application has been filed seeking exemption from pre‑litigation mediation, as the same would defeat the very purpose of the relief claimed by the plaintiffs. Having regard to the facts of the present case and in light of the judgment of the Division Bench of this Court in Chandra Kishore Chaurasia v. R.A. Perfumery Works Private Ltd., First Appeal (Commercial) No. 128/2021, exemption from attempting pre‑institution mediation is allowed. Accordingly, the application stands disposed of., Interim Application 26293/2024 (seeking leave to file additional documents): By this application under Order XI Rule 1(4) of the Code of Civil Procedure, as applicable to commercial suits under the Commercial Courts Act, 2015, the plaintiff seeks time to place on record additional documents. The plaintiffs, if they wish to file additional documents at a later stage, shall do so strictly as per the provisions of the Commercial Courts Act, 2015 and the Delhi High Court (Original Side) Rules, 2018. The application stands disposed of accordingly., Interim Application 26294/2024 (exemption): Exemption is granted, subject to all just exceptions. The applicant shall file legible, clear and original copies of the documents on which reliance is sought within four weeks from today or before the next date of hearing. The application stands disposed of accordingly., Let the plaint be registered as a suit. Mr. Kunal Rakwar, Advocate, on behalf of Defendant No. 1, counsel for Defendant Nos. 2 and 3, counsel for Defendant No. 4, counsel for Defendant Nos. 5 and 6, and counsel for Defendant No. 8 accept notice. Upon filing of the process fee, issue summons to the remaining defendants by all permissible modes. All served and unserved defendants, upon completion of service, shall file their respective written statements within thirty days from the date of receipt of summons. Along with the written statements, the defendants shall also file affidavits of admission or denial of the plaintiff’s documents, without which the written statement shall not be taken on record., Liberty is given to the plaintiff to file replications within fifteen days of receipt of the written statements. Along with the replications, if any, filed by the plaintiff, affidavits of admission or denial of the defendants’ documents shall be filed by the plaintiff, without which the replications shall not be taken on record. If any party wishes to seek inspection of any documents, the same shall be sought and given within the timelines. As requested by counsel for Defendant No. 8, who appears via video conference, a copy of the plaint shall be supplied to him during the course of the day. List before the Joint Registrar for marking of exhibits on 19 March. It is made clear that any party unjustifiably denying documents shall be liable to bear costs. List before the Delhi High Court on 6 May 2024. The order shall be uploaded on the website of this Court. January 12, 2024.
id_479	0	Crime No. 6 of 2022 was registered by the Crime Branch Police Station, Ernakulam. The petitioners in the bail applications are identified as accused No. 1 to 5. Bail Application No. 248 of 2022 names Gopalakrishnan alias Dileep as Accused No. 1, P. Sivakumar alias Anoop as Accused No. 2, and T. N. Suraj as Accused No. 3. Bail Application No. 300 of 2022 names Krishnaprasad R as Accused No. 4, who is referred to in the First Information Report as Appu. Bail Application No. 288 of 2022 names Byju B. R (Baiju Chengamanadu) as Accused No. 5. One accused remains unidentified. After the filing of these bail applications, the investigating officer reported to the Judicial First Class Magistrate‑I that the offence under Section 120B(1) of the Indian Penal Code had been amended to Section 302 of the Indian Penal Code., The first accused is also the eighth accused in Crime No. 297 of 2017 of Nedumbassery Police Station, which is pending trial as Special Case No. 118 of 2018 before the Additional Sessions Judge (CBI Court‑III), Ernakulam. The registration of Crime No. 6 of 2022 arose from information given by Balachandra Kumar that the first accused, together with the other accused including the unidentified sixth accused, conspired to eliminate the investigating officer and other officers connected with the investigation of Crime No. 297 of 2017. Balachandra Kumar filed Annexure‑G complaint before the Station House Officer, Nedumbassery Police Station on 22‑11‑2021 and subsequently gave statements annexed as H and I, providing details of the alleged conspiracy, voice clips, videos and other material. The Station House Officer forwarded these to the investigating officer of Crime No. 297 of 2017, Baiju Paulose, Deputy Superintendent of Police, Crime Branch, Alappuzha, who recorded the statements and submitted Annexure‑J complaint on 09‑01‑2022 before the Additional Director‑General of Police (Crimes). The Additional Director‑General directed the Station House Officer of the Crime Branch Police Station to register a case and ordered its investigation by the Superintendent of Police, Crime Branch, Ernakulam. Consequently, First Information Report Annexure‑F was registered as Crime No. 6 of 2022., The petitioners were represented by Senior Advocate B. Raman Pillai, instructed by Mr. Philip T. Varghese, and the prosecution was represented by Senior Advocate T. A. Shaji, Director General of Prosecutions, instructed by Additional Public Prosecutor P. Narayanan., The petitioners contend that the registration of Crime No. 6 of 2022 is a malicious attempt to arrest the first accused and to fabricate evidence in Special Case No. 118 of 2018. They argue that there is a marked difference between Annexure‑G complaint and the statements annexed as H and I. Annexure‑I, they claim, has been suitably dressed up with additions to create the appearance of a conspiracy. According to the petitioners, the instrument on which the voice clips were originally recorded is no longer available, and the clips were transferred to a laptop and then to a pen drive, making it impossible to verify authenticity. They further submit that Balachandra Kumar, if his information is correct, may himself be guilty of offences punishable under Sections 118 and 202 of the Indian Penal Code for concealing information received in 2017, invoking Section 39(1)(v) of the Code of Criminal Procedure. They also point out that Balachandra Kumar’s alleged blackmail of the first accused is contradicted by his reference in paragraph 27 of Annexure‑G to a discussion with a person named Dasettan, who left the service of the first accused in 2020, and that the alleged plans to eliminate another accused were made in 2021, after the alleged conspiracy., The prosecution argues that the statements of Balachandra Kumar constitute sufficient proof of conspiracy. The audio and video files submitted by him are said to support the case of conspiracy, and his statements are treated as those of an eye‑witness. The prosecution relies on the Supreme Court judgment in Kamal Kapoor v. Sachin Kartarsingh, stating that minor contradictions between two statements cannot be a ground to deny anticipatory bail. The prosecution also cites the content of Annexure‑G, particularly paragraphs 16 and 17, and the statements recorded on 01‑01‑2022 (Annexure‑H) and 03‑01‑2022 (Annexure‑I)., The prosecution highlights specific voice clips in which Dileep and Anoop are heard, and alleges that in December 2017 Balachandra Kumar met the first accused at a flat on M. G. Road and conspired to eliminate the investigating officer in Crime No. 297 of 2017. It is further alleged that in May 2018, while the first accused was passing the Police Club, Aluva, he made threatening statements to Balachandra Kumar. During the investigation of Crime No. 6 of 2022, the Crime Branch recorded a statement from Salim of Aluva, an NRI businessman residing in Doha, who allegedly was approached by the first accused to change his version against Sarath G. Nair, a close friend of the first accused. The prosecution claims that the first accused threatened Salim when he refused, and that the first accused made a threatening comment in the Sessions Court on 31 January 2018, indicating an intention to prevent the trial of Special Case No. 118 of 2018., The prosecution points to the change of mobile phones by the accused after the allegations of Balachandra Kumar became public, suggesting an attempt to hide evidence. It is alleged that the petitioners sent their phones to a forensic expert for destruction of evidence, and that despite an order of the High Court of Kerala on 29‑10‑2022 directing surrender of the phones to the Registrar General, one phone was not produced on the premise that the first accused was unaware of its location. The prosecution states that the phone was used for 221 days, about five months ago, and that 2,075 calls were made from it by the first accused, indicating non‑compliance with the court’s direction and non‑co‑operation with the investigation. The prosecution also notes contradictions in the statements of the accused, including a confession by Accused No. 3 regarding a payment made by the first accused for securing bail in the earlier case, which the first accused denied, leading to a hostile response to the police., The prosecution relies on several Supreme Court judgments to support its position, including Lachhman Dass v. Resham Chand Kaler, State represented by CBI v. Anil Sharma, Dr. P. A. Dasthakir v. Dy. S. P. (CB‑CID), Karayi Rajan & Anr v. CBI, P. Chidambaram v. Directorate of Enforcement, Vipin Kumar Dhir v. State of Punjab, Sudha Singh v. State of Uttar Pradesh, Sudhir v. State of Maharashtra, Muraleedharan v. State of Kerala, Adri Dharan Das v. State of West Bengal, and Supreme Bhiwandi Wada Manor Infrastructure Pvt. Ltd. v. State of Maharashtra. These judgments are cited to argue that custodial interrogation is essential in cases of serious offences and conspiracy, that anticipatory bail may hamper investigation, and that the gravity of the offence and the conduct of the accused must be considered., The petitioners, in their reply, contend that there was no element of non‑co‑operation by them. They state that all passwords relating to the phones were provided to the learned Magistrate, that the accused cooperated with interrogation, and that the only alleged non‑co‑operation is the failure to give confessional statements, which are not required under Section 161 of the Code of Criminal Procedure. They argue that the contradictions between Annexures G, H and I are not minor, but that the additional information in Annexure‑I was intended to establish the offence. They maintain that mere thoughts or words are insufficient to constitute criminal conspiracy, and that even if the prosecution’s material is taken as a whole, there is no evidence that any other accused responded to the statements of Accused No. 1. They assert that the request for custody of the first accused is aimed at planting evidence for the pending Special Case No. 118 of 2018, and that the failure to produce one mobile phone should not be treated as non‑co‑operation, as there is no law requiring perpetual retention of all previously used phones., The High Court of Kerala considered the contentions raised. It is settled law that the High Court of Kerala should not evaluate each material in detail at the bail stage but should determine whether a prima facie case exists, taking into account factors such as the gravity of the allegations, the likelihood of the accused fleeing, tampering with witnesses, and the criminal antecedents, as laid down in State of Orissa v. Mahimananda Mishra. Accordingly, the High Court of Kerala refrains from a detailed analysis of the prosecution’s evidence and notes the arguments of both sides., Crime No. 6 of 2022 alleges offences under Sections 116, 118, 120B (as read with Section 302) and 506 of the Indian Penal Code, read with Section 34 of the same Code. Section 116 deals with punishment for abetment of an offence, Section 118 with punishment for concealing design to commit an offence punishable with death or life imprisonment, Section 120B with punishment for criminal conspiracy, and Section 506 with punishment for criminal intimidation., Abetment is defined in Section 107 of the Indian Penal Code. The present case involves abetment by conspiracy under Section 107. Criminal conspiracy was introduced as a distinct offence by the Criminal Law Amendment Act, 1913, and is defined in Section 120A. While criminal conspiracy is an offence in itself, it may amount to abetment when the conspiratorial act leads to the commission of the substantive offence. The Patna High Court in State of Bihar v. Srilal Kejriwal held that when the offence alleged to be the object of the conspiracy is actually committed, sections 120A and 120B become irrelevant and the charge amounts to abetment under Section 107. Similar observations were made by the Division Bench in Judgeshwar Singh v. Emperor and by the Madras High Court in In re Venkataramiah, emphasizing that once the conspiracy progresses to the commission of the offence, the provisions of sections 120A and 120B are unnecessary.
id_479	1	Conspiracy, it should be borne in mind, is one form of abetment (see Section 107 of the Indian Penal Code) and where an offence is alleged to have been committed by more than two persons, those who actually took part in the commission should be charged with the substantive offence, while those who are alleged to have abetted it by conspiracy should be charged with the offence of abetment under Section 109 of the Indian Penal Code. The explanation to Section 109 makes this clear. An offence is said to be committed in consequence of abetment when it is committed in pursuance of the conspiracy, and the abettor by conspiracy is punishable under Section 109 with the punishment provided for the actual offence. The offences of abetment by conspiracy and criminal conspiracy have been elaborately considered by the Supreme Court of India in Pramatha Nath Talukdar v. Saroj Ranjan Sarkar, B.A. Nos. 248, 288 & 300/2022. The following findings in that judgment are relevant and are extracted below., Section 120-A, which defines the offence of criminal conspiracy, and Section 120-B, which punishes the offence, are in Chapter V-A of the Indian Penal Code. This chapter introduced a new offence, namely criminal conspiracy, by the Criminal Law Amendment Act, 1913 (Act 8 of 1913). Earlier, the provisions dealing with conspiracy were contained in Chapter V and Section 121-A of Chapter VI of the Code. The present case does not concern the kind of conspiracy referred to in Section 121-A. The point before us is the distinction between the offence of abetment as defined in Section 107 (Chapter V) and the offence of criminal conspiracy as defined in Section 120-A (Chapter V-A)., Under Section 107, second clause, a person abets the doing of a thing who engages with one or more other persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy and in order to the doing of that thing. Therefore, to constitute the offence of abetment by conspiracy, first there must be a combination of two or more persons in the conspiracy; secondly, an act or illegal omission must take place in pursuance of that conspiracy and in order to the thing. It is not necessary that the abettor should concert the offence with the person who commits it; it is sufficient if he engages in the conspiracy in pursuance of which the offence is committed. A mere conspiracy or combination of persons for the doing of a thing does not amount to abetment; something more is necessary, namely an act or illegal omission in pursuance of the conspiracy., Before the introduction of Chapter V-A, except in cases provided by Sections 121-A, 311, 400, 401 and 402 of the Indian Penal Code, conspiracy was a mere species of abetment where an act or illegal omission took place in pursuance of that conspiracy, and it did not amount to a distinct offence. Chapter V-A introduced a new offence defined by Section 120-A, called criminal conspiracy, which consists in a mere agreement by two or more persons to do or cause to be done an illegal act or an act which is not illegal by illegal means. The proviso states that no agreement except an agreement to commit an offence shall amount to criminal conspiracy unless some act besides the agreement is done by one or more parties in pursuance thereof., The gist of the offence of criminal conspiracy is the agreement to do an illegal act or an act which is not illegal by illegal means. When the agreement is to commit an offence, the agreement itself becomes the offence of criminal conspiracy. Where the agreement is to do an illegal act which is not an offence or an act which is not illegal by illegal means, some act besides the agreement is necessary. Thus, for abetment by conspiracy, mere agreement is not enough; an act or illegal omission must occur in pursuance of the conspiracy. In contrast, for criminal conspiracy the very agreement or plot is an act in itself and constitutes the offence., Willes, J. observed in Mulcahy v. Queen [(1868) LR 3 HL 306 at 317]: When two agree to carry it into effect, the very plot is an act in itself, and the act of each of the parties, promise against promise, actus contra actum, is capable of being enforced if lawful, punishable if for a criminal object or for the use of criminal means., The distinction between the offence of abetment under the second clause of Section 107 and that of criminal conspiracy under Section 120-A is that in the former a mere combination of persons or agreement is not enough; an act or illegal omission must take place in pursuance of the conspiracy. In the latter, the mere agreement is enough if the agreement is to commit an offence. Therefore, for abetment by conspiracy a mere agreement is insufficient; some act or illegal omission must occur. Criminal conspiracy, however, is an offence by itself and does not require the doing of an act or illegal omission., Coming to the facts of this case, there is nothing to suggest that the accused had done any act or omission in respect of which an offence of abetment can be alleged. For an offence of abetment, something must be done. No material suggests that an act or illegal omission occurred for the accused to be charged with abetment. Therefore, prima facie and for the purposes of these bail applications, it can be presumed that Section 116 of the Indian Penal Code is not attracted., Section 118 of the Indian Penal Code, another offence alleged to have been committed, will be attracted only if there is material to suggest a design to commit an offence punishable with death or imprisonment for life. If material suggests a criminal conspiracy, as the prosecution alleges, the offence under Section 118 will also be attracted., The focus of the argument of the learned Director General of Prosecutions has been to establish that there was a criminal conspiracy to commit murder of the investigating officers in Crime No. 297/2017. Several decisions were placed before the Kerala High Court by both sides to indicate what constitutes the offence of criminal conspiracy and the difficulty in obtaining clear evidence, as conspiracies are normally hatched behind closed doors. The offence of criminal conspiracy has been dealt with in detail in Kehar Singh v. State (Delhi Administration), where Justice Jagannatha Shetty, concurring with Justices G. L. Oza and B. C. Ray, explained the essence of the offence., Before considering the other matters against Balbir Singh, it is useful to consider the concept of criminal conspiracy under Sections 120-A and 120-B of the Indian Penal Code. These provisions have brought the law of conspiracy in India in line with English law by making the overt act unessential when the conspiracy is to commit any punishable offence. The English law on this matter is well settled. Russell on Crime (12th Edition, Vol. I, p. 202) notes: The gist of the offence of conspiracy lies not in doing the act, or effecting the purpose, nor in attempting to do them, nor in inciting others, but in the forming of the scheme or agreement between the parties. Agreement is essential. Mere knowledge or discussion of the plan is not, per se., enough., Glanville Williams in Criminal Law (2nd Edition, p. 382) illustrates: In an Iowa case, D, who had a grievance against P, told E that if he would whip P someone would pay his fine. E replied that he did not want anyone to pay his fine, that he had a grievance of his own against P and that he would whip him at the first opportunity. E whipped P. D was acquitted of conspiracy because there was no agreement for concert of action, no agreement to cooperate., Coleridge, J., while summing up the case to the jury in Regina v. Murphy [173 Eng. Reports 508], stated: It is not necessary to prove that the parties came together and actually agreed in terms to have a common design and to pursue it by common means; many conspiracies lack such proof, yet the common design pursued by their acts can lead to a conclusion of conspiracy., It is thus seen that the most important ingredient of the offence of conspiracy is the agreement between two or more persons to do an illegal act. The illegal act may or may not be done in pursuance of the agreement, but the agreement itself is an offence and is punishable. Sections 120-A and 120-B of the Indian Penal Code make this clear., Generally, a conspiracy is hatched in secrecy and direct evidence may be difficult to adduce. The prosecution often relies on acts of various parties to infer a common intention, and on circumstantial evidence. The offence of conspiracy requires some physical manifestation of agreement, but the express agreement need not be proved; actual meeting or verbal words are not necessary. Agreement may be communicated by words or conduct, and a tacit understanding may suffice., The concurrence must be conscientious and clear; it cannot be inferred from a group of irrelevant facts artfully arranged to give an appearance of coherence. Innocuous or inadvertent events should not influence the judicial verdict., In R. Venkatkrishnan v. Central Bureau of Investigation, the Court held: Criminal conspiracy under Section 120-B of the Indian Penal Code is an independent offence punishable separately. Prosecution must prove it by applying the legal principles applicable to criminal misconduct. A criminal conspiracy must be put to action; mere thoughts do not become punishable. When an agreement to do or cause to be done an illegal act or an act which is not illegal but by illegal means takes concrete shape, the agreement gives rise to an offence even if nothing further is done., Having considered the materials placed and the annexures, I am of the opinion, prima facie, that at present there is no material to suggest that the accused had committed the offence of criminal conspiracy., The other offence alleged is criminal intimidation, punishable under Section 506 of the Indian Penal Code, which is essentially a threat. There is no case that any officer was directly threatened or intimidated by the accused. The incident where the first accused spoke to Baiju Poulose on 31.1.2018 at the Sessions Court, Ernakulam, must be discounted for two reasons: the case was pending at the committal stage before the Judicial First Class Magistrate Court, Angamaly, and the statement cannot be termed a threat or intimidation for the purposes of Section 506., Although certain materials were referred to by counsel for the petitioners to demonstrate that the petitioners are the subject of blackmail by Balachandra Kumar, I do not intend to examine that question in these proceedings., The learned Director General of Prosecutions submitted vehemently that the accused are not cooperating with the investigation, a ground to deny bail. It was pointed out that despite the order dated 22-01-2022 directing the accused to make themselves available for interrogation and to cooperate, the accused did not cooperate and gave contradictory answers. They claimed their mobile phones were with their lawyers, and one phone directed to be produced by the order dated 29-01-2022 has not been produced, which was cited as a clear instance of non-cooperation. It was also noted that a former employee of the first accused had been influenced or intimidated when questioned by police., Though solely for the purpose of considering the entitlement of the petitioners for bail, prima facie I have already found that the offences alleged are not attracted. Regarding non-cooperation, even if bail is granted, the prosecution may move the Court for cancellation of bail or arrest of the accused as held by the Constitution Bench in Sushila Aggarwal. The non-production of one phone, which is now stated to be non-traceable, does not compel me to hold that it amounts to non-cooperation. Even according to the prosecution the phone was used for 221 days about five months ago. The apprehension that the accused, if released on bail, will influence or intimidate witnesses is real, but can be dealt with by imposing appropriate conditions. If material suggests the accused are influencing or intimidating witnesses despite conditions, that can be a ground for cancellation of bail or arrest., I am also of the view that the investigation can be properly conducted without the custody of the accused, making it clear that even while on anticipatory bail the deemed custody will be with the prosecution for purposes of any recovery etc. The following conclusions of the five-Judge Bench of the Supreme Court of India in Sushila Aggarwal are pertinent:, Nothing in Section 438 of the Criminal Procedure Code compels courts to impose conditions limiting relief in terms of time, or upon filing of FIR, or recording of statement of any witness during investigation. While considering an application for anticipatory bail, the court must consider the nature of the offence, the role of the person, the likelihood of influencing the investigation or tampering with evidence, and the likelihood of fleeing justice. Courts may impose conditions under Section 437(3) of the Criminal Procedure Code, but such restrictive conditions should be imposed case-by-case and not routinely. Courts should be guided by the nature and gravity of the offences, the role of the applicant, and the facts of the case. Anticipatory bail, depending on the conduct of the accused, can continue after filing of the charge-sheet till the end of trial. An order of anticipatory bail should not be blanket; it should be confined to the specific offence or incident for which arrest is feared and should not enable the accused to commit further offences. An order of anticipatory bail does not limit the rights or duties of the police or investigating agency to investigate the charges. The observations in Sibbia v. State of Punjab regarding limited or deemed custody to facilitate investigation are sufficient for the purpose of Section 27 of the Evidence Act in the event of discovery of facts made in pursuance of information supplied by a person released on bail., The police or investigating agency may move the Court that granted anticipatory bail for a direction under Section 439(2) of the Criminal Procedure Code to arrest the accused in the event of violation of any term, such as absconding, non-cooperation, evasion, intimidation or inducement of witnesses., The philosophy guiding this Court while considering bail applications has been expressed by Justice Krishna Iyer in Gopinathan Pillai v. State of Kerala: Pre-trial detention has a purpose and policy; bail must be decided on relevant criteria and not on emotionally appealing but legally impertinent circumstances. Deprivation of liberty before conviction amounts to punishment without trial unless justified by civilized principles of justice. Courts must not be swayed by sentiment but guided by the principle that public justice shall not be thwarted., As Justice Krishna Iyer famously said in State of Rajasthan v. Balchand, the basic rule is bail, not jail., The case has generated much media attention. Mainstream television and social media have commented on how this Court handled the case. Observations made in Court during the hearing have been dissected. A vibrant, independent and free press is essential to democracy. Constitutional courts protect freedom of speech and expression, but this is not a licence for persons with half-baked facts to abuse the justice delivery system., For the reasons stated above, these bail applications are allowed and the petitioners shall be released on bail, subject to the following conditions: (i) each petitioner shall execute a separate bond of Rs 1,00,000 with two solvent sureties; (ii) petitioners shall appear before the investigating officer in Crime No. 6/2022 Crime Branch Police Station as and when summoned; (iii) petitioners shall cooperate with the investigation and make themselves available for interrogation whenever required; (iv) petitioners shall not tamper with any evidence; (v) petitioners shall not directly or indirectly make any inducement, threat or promise to any witness; (vi) petitioners shall surrender their passports before the Kerala High Court; if a petitioner has already surrendered his passport, this condition will not apply; (vii) petitioners shall not involve themselves in any other crime while on bail. If any condition is violated, the investigating officer may file an application before the Kerala High Court for cancellation of bail. No observation in this order shall be construed as a finding on any issue; the observations are only for the purpose of considering the entitlement of the petitioners for bail.
id_48	0	Represented by: Mr. Bharat Dubey, Ms. Shubhlaxmi Dubey, Dr. Sonia Dubey and Ms. Tanya Kapoor, Advocates. Versus Represented by: Mr. Prithu Garg, Additional Public Prosecutor for the State with Inspector Ravinder Singh, Police Station Prashant Vihar, Mr. Prashant Diwan, Ms. Kushika Chachhra and Mr. Mayank Verma, Advocates for the complainant. Standing Counsel IHBAS: Mr. Tushar Sannu with Dr. Om Prakash, Dr. Pratibha, Dr. Shehzadi Malhotra, Mr. Devender Kumar Upadhaya, Superintendent, Tihar Jail No. 8/9., By way of this death reference, the Trial Court submitted its order on sentence dated 6 October 2020 for confirmation of the death sentence awarded to Jeevak Nagpal, pursuant to its judgment dated 30 September 2020 wherein Jeevak Nagpal was held guilty of offences punishable under Sections 364A, 302, 201 and 506 of the Indian Penal Code, 1860. Parallelly, by way of Criminal Appeal No. 166/2021, Jeevak Nagpal (hereinafter appellant) has also challenged the said judgment and order on sentence of the Trial Court whereby the appellant was directed to undergo rigorous imprisonment for seven years along with a fine of Rs 30,000, in default of which simple imprisonment for six months for the offence punishable under Section 506 IPC; further directed to undergo rigorous imprisonment for seven years along with a fine of Rs 30,000, in default of which simple imprisonment for six months for the offence punishable under Section 201 IPC; further directed to undergo imprisonment for life for the offence punishable under Section 364A IPC; and further sentenced to death subject to confirmation by the Supreme Court of India for the offence punishable under Section 302 IPC., Brief facts of the prosecution case are that on 18 March 2009 the deceased went to a nearby stationary shop and did not return. The deceased’s uncle (tauji) Brijesh Mahajan (Witness 1, complainant) informed the police, and the information was recorded vide Diary Entry No. 44. Enquiry of the father of the child/deceased, Rajesh Mahajan (Witness 36), over phone revealed that he had received a text message from mobile No. 9990401054 on his mobile No. 9811092230 regarding kidnapping of his son and demand of ransom. The statement of the complainant was recorded (Exhibit PW‑1/A) and a rukka was prepared (Exhibit PW‑42/A) on which FIR No. 161/2009 dated 19 March 2009 under Section 364A IPC was registered at Police Station Prashant Vihar (Exhibit PW‑8/A). Investigating Officer Inspector Pratap Singh (Witness 42) made efforts to locate the deceased but was unsuccessful. Inspector Amardeep Sehgal was instructed to place the aforementioned numbers on technical surveillance for monitoring., On 19 March 2009 at about 11.30 AM, Inspector Amardeep Sehgal informed that the location of mobile No. 9990401054 was at or near Sector 11, Rohini. Secret informers in plain clothes were deployed in the area and one informer reported a person in suspicious condition roaming around the house of the victim situated in Sector 11, Rohini. The suspicious person was apprehended and, during interrogation, disclosed his identity as Jeevak Nagpal. The appellant was thereafter arrested vide memo (Exhibit PW‑36/B). His disclosure statement (Exhibit PW‑36/E) was recorded. The appellant produced two mobile phone handsets, one of make TIA and the other of make Nokia. The TIA handset contained text messages pertaining to threats and ransom demands made to Rajesh Mahajan and held SIM No. 9990401054; the Nokia handset held SIM No. 9873883039. Thereafter the appellant led the police party to the scene of crime and to the place where he had disposed of the dead body of the deceased, i.e., the dividing road between Sector 24, Rohini and Deep Vihar in a dry drain. The dead body was identified by Rajesh Mahajan and the crime team was called at the spot. Various exhibits were seized from the spot and the dead body was sent to BJRM Hospital for post‑mortem examination., Dr. K. Goyal (Witness 17) conducted the post‑mortem examination on 19 March 2009 and prepared his report. On external examination, the following injuries were found on the body: (1) Both lips extensively bruised orally and externally, lower lip with bruising over alae nasi on both sides and tip of nose, with diffuse bruising around the mouth, reddish in colour; (2) Eleven lacerations scattered irregularly, superficial to full‑skin depth over lower side of occipital region and back of neck at and around mid‑line, sizes ranging from 0.75 cm × 0.2 cm to 1.8 cm × 0.4 cm; (3) Diffused bruising with swelling over right malar region measuring 5 cm × 4 cm, reddish in colour; (4) Abraded area on right side of neck running horizontally at the level of the Adam’s apple from mid‑line front up to 11.5 cm laterally, about 1 cm wide, reddish‑brown, interrupted at places and about 7 cm below right ear; (5) Patterned contused abrasions of rectangular shape present over (a) right back of chest at the level of inferior border of right scapula, about 2 cm right to mid‑line, size 1 cm × 0.2 cm; (b) mid‑line back of abdomen over vertebral column, 1 cm × 0.2 cm; (c) mid‑line epigastrium upper side, 1.2 cm × 0.4 cm; (d) 1 cm × 0.4 cm with slight grazing over epigastrium about 1.5 cm left of mid‑line; (e) 1.2 cm × 0.4 cm with grazing over epigastrium about 4 cm left of mid‑line. All these five injuries were reddish‑brown, their ends very dark and cuticle‑deep while intervening area was lighter. Similar injury of 1 cm × 0.3 cm was found over left thigh front about 5 inches below left inguinal ligament. Additional injuries included an 8 cm long scratch placed obliquely over right side chest above nipple, abrasion 1 cm × 0.7 cm just below left inguinal region, superficial lacerations avulsion 1.6 cm × 1 cm over left thigh front about 17 cm below mid‑inguinal point, and patterned contused abrasion 1 cm × 0.3 cm over anteromedial aspect of right thigh about 6 cm below medial part of inguinal ligament. On internal examination, there was sub‑scalp bruising over occipital region; skull bones, meninges and brain matter were intact and congested. All neck structures were intact and no abnormality detected. Tracheal mucosa was congested with little froth present. Both lungs were profusely oedematous, congested and frothy. All abdominal organs were intact. About 20‑30 cc of partially churned food material with small Rajma‑like pieces were present in the stomach; the bowels, urinary bladder and rectum were full. Spinal column and genital organs were normal. Opinion: The cause of death was asphyxia consequent upon smothering, i.e., closure of airways (nostrils and mouth). All injuries were ante‑mortem. Injury 1 was caused by manual pressure over mouth and nose and was sufficient to cause death in the ordinary course of nature. All other injuries, except numbers 5 and 9, were caused by blunt force impacts. Pattern of injuries 5 and 9 was consistent with being caused by a relatively blunt penetrating object. The pattern indicated intense torture just prior to death. Time since death was about 17‑18 hours., On 19 March 2009 the appellant led the police party to his house, C‑4/3, Sector 11, Rohini, where a silver‑coloured Wagon‑R bearing registration No. DL 2CAF 7578 was parked on the road outside his house. Investigating Officer (Witness 42) called the mobile crime team, which inspected the car and found bloodstains on the seat cover adjoining the driver seat and a jack handle having blood on its pointed side. Both the seat cover and the jack handle were seized vide memos Ex.PW‑36/S and Ex.PW‑36/T respectively. In his supplementary disclosure statement (Exhibit PW‑24/A), the appellant led the police team to M/s Shiv Stationery shop situated at B‑5/57, Rohini, Sector 11, from where he had kidnapped the deceased. After completion of investigation, a charge‑sheet was filed and the appellant was charged for offences punishable under Sections 364A, 302, 201 and 506 of the Indian Penal Code. To prove its case, the prosecution examined 42 witnesses; the appellant was examined as a witness along with 12 other witnesses., Learned counsel appearing on behalf of the appellant submitted that the charges framed against the appellant have not been duly proved by the prosecution. The evidence is not reliable and does not inspire confidence; therefore the impugned judgment and order on sentence should be set aside and the appellant acquitted. It was contended that the prosecution built a false case by introducing an informer who was neither cited nor produced as a witness, rendering such evidence inadmissible and unreliable. Reliance was placed on the decisions (1984) 1 SCC 319 Bhugdomal Gangaram & Ors. v. State of Gujarat and (2001) 3 SCC 451 Kanhai Mishra @ Kanhaiya Misar v. State of Bihar. It was submitted that the appellant was arrested from outside his house and taken to the Crime Branch office at Rohini, Sector 3, where he was subjected to third‑degree interrogation, which can be confirmed from TV footage of the press conference at the office of DCP Pushpanjali. Despite the heavily inhabited area, no neighbour was called to witness the proceedings. It was further contended that the TIA phone shown to have been recovered from the appellant was planted; the phone was arranged from Shiv Kumar (Witness 2) of Rajhans Telecom and planted on the appellant. No purchase bill or sale receipt was produced. It was also contended that the recovery of the dead body at the instance of the appellant is not proved and the prosecution’s story is unreliable. The place of recovery of the dead body was already known to the police, and the police recovered the body in the appellant’s absence, as can be seen in TV footage where the appellant is not visible. The appellant could also not be seen in photographs; the Investigating Officer, in cross‑examination, stated that the appellant could not be seen because a large crowd had gathered and he was taken aside for protection. The crime team report indicates that the time of recovery of the dead body was when the appellant was not arrested. Regarding the recovery of the Wagon‑R, it was submitted that the house of the accused was locked, the keys were with the Investigating Officer, and the appellant’s parents were detained. The claim that the father gave the keys to the Investigating Officer and then fled is a false story. It was further contended that the crime team did not examine the vehicle properly; photographs do not show whether the spare tyre was removed or whether a spanner was present in the tool kit. No fingerprints of the deceased child were found inside or outside the car. It was submitted that the forensic evidence, i.e., the Forensic Science Laboratory report, did not support the prosecution’s case because the blood on the seat cover and jack spanner did not match the blood group of the deceased. Reliance was placed on the decision (2018) 2 JCC 1247 (DHC) Manoj @ Monu & Anr. v. State., The prosecution also relies upon the last‑seen evidence in the testimony of Jai Pal Singh Mann (Witness 34), a property dealer, who stated that he saw the deceased child sitting in the Wagon‑R of the appellant around 9.30 PM. It was submitted that there was a significant improvement in the version of Witness 34 as narrated to the police under Section 161 of the Code of Criminal Procedure, 1973 and as stated before the Court, rendering his version unbelievable. Reliance was placed on the decision AIR 2008 SC 114 Sattatiya @ Satish Rajanna v. State of Maharashtra. It was also pointed out that the Investigating Officer never moved an application for getting the appellant identified by Witness 34; therefore, in the absence of identification, the last‑seen evidence is weak. Learned counsel further pointed out that permission to obtain the voice sample of the appellant recorded by the Central Forensic Science Laboratory was illegally granted; such permission could have been granted only after the appellant’s consent. Moreover, the Investigating Officer, after obtaining permission from the concerned Court, did not take the accused to the Central Forensic Science Laboratory but recorded his voice sample in his own room at the police station with the help of a private videographer Sonu Kohli (Witness 18). It was further contended on behalf of the appellant that doubts loom as to whether the deceased child was in the custody of the appellant or in the custody of Witness 5 and his associates. A question was put to the forensic expert who examined the voice recording whether he could ascertain the side from which the child’s voice was coming; he replied that he was unable to do so. Learned counsel relied on the observation of the Trial Court that during recording of evidence the child’s voice was coming from the side of the witnesses, establishing a strong link of the child’s presence with the witnesses instead of the appellant. It was further contended that the mobile phone recordings were tampered and therefore cannot be relied upon. According to the testimony of Witness 25, the appellant’s Nokia mobile phone had an auto‑recording facility. From the cross‑examination of Witness 5, Witness 25 and the Investigating Officer, it is evident that three calls were exchanged between Witness 5 and the appellant. However, Witness 25 admitted that, with the permission of the Investigating Officer, he removed the memory card of the phone and erased all other calls, leaving only two calls and deleting the lengthiest call of 184 seconds. This constitutes tampering, benefitting Witness 5, Witness 25 and their associates. It was further pointed out that the prosecution heavily relies upon electronic evidence but no certificate under Section 65B of the Indian Evidence Act, 1872 was produced. Learned counsel also noted that the prosecution has not been able to ascertain the time till which the child was alive. According to the prosecution, Witness 34 saw the child alive till 10.35 PM and the crane‑wala arrived at about 11.00 PM, implying the child was killed between 10.35 PM and 11.00 PM. However, Call Detail Records of the appellant show dozens of calls made and received during this period, making it impossible for the appellant to talk on the phone and simultaneously injure the child. The burden of proof lies upon the prosecution to prove the time and manner of death, which it has failed to do. Reliance was placed on the decisions (2017) 1 JCC 289 (SC) Harbeer Singh Sheesh Pal & Ors. v. State of Rajasthan, AIR 1976 SC 975 Bhagirath v. State of Madhya Pradesh, AIR 1977 SC 170 Rabindra Kumar Dey v. State of Orissa and AIR 1976 SC 966 Partap v. State of Uttar Pradesh. It was further pointed out that all injuries on the deceased were on the left side of his head, which would be towards the window side of the child, making it difficult for a person sitting on the driver’s seat to inflict those injuries. Moreover, neither Sahil (Witness 9) nor the crane‑wala noticed any abnormal stain on the appellant’s person or clothes, although they were alleged to be stained with blood. It was also contended that the Investigating Officer did not conduct the investigation properly; the duty of the Investigating Officer is to bring out the real unvarnished truth, not to bolster the prosecution case. Reliance was placed on the decision AIR 1974 SCC 822 Jamuna Chaudhari v. State of Bihar., The Additional Public Prosecutor for the State submits that there is no infirmity in the judgment and order on sentence and that the present appeal should be dismissed. To substantiate its case, the prosecution relied upon the following facts: (i) Two mobile phones were recovered from the appellant on 19 March 2009; messages were found in the inbox and outbox of both phones and a transcript of the messages was prepared by the Investigating Officer (Exhibits PW‑36/A‑1 to A‑3 and PW‑24/C‑1 to C‑5 for the TIA and Nokia mobiles respectively). The recovery of these phones was witnessed by Witness 36. (ii) Text messages exchanged between the father of the deceased (Witness 36) and the appellant were extracted from the SIM card of the TIA mobile. Messages were not recovered from the TIA handset as it had no memory card. (iii) The IMEI numbers of both handsets recorded in the seizure memo matched those mentioned in the Call Detail Records. The CDR of mobile No. 9990401054 used by the appellant confirms multiple calls and messages exchanged between the appellant and Witness 36 between 7.17 PM on 18 March 2009 and 9.34 AM on 19 March 2009. The CDR further reveals that the appellant removed the SIM card of mobile No. 9873883039 from the Nokia handset due to battery exhaustion at 8.48 PM and transferred it to the TIA handset, where it remained until 11.12 PM. The CDR of mobile No. 9990401054 shows that this number, originally lodged in the TIA handset, was switched off between 8.30 PM and 12.30 AM on 19 March 2009. (iv) Location analysis from the CDRs of both mobile numbers confirms the appellant’s presence near the deceased’s residence at Sector 11, Rohini on the evening of 18 March 2009, at Sector 24, VBPS on the night of 18 March 2009 (time of the murder and dumping of the body), and again at Sector 11, Rohini on the morning of 19 March 2009 (time of his arrest). (v) Shiv Kumar (Witness 2) identified the appellant as the person who purchased the TIA handset from his shop on 24 February 2009 for a sum of Rs 1,200. Sunil Rastogi (Witness 28) identified the appellant as the person who purchased the SIM card of Idea Cellular (mobile No. 9990401054) from his shop on the ID of Sanjay s/o Hari Ram in February 2009. (vi) Pursuant to the appellant’s disclosure, his clothes stained with blood were seized vide memo Ex.PW‑40/A; the Forensic Science Laboratory report (Exhibit PW‑38/A) detected human blood of group A on the appellant’s jeans, i.e., the deceased’s blood. (vii) According to the appellant’s disclosure statement (Exhibit PW‑36/E), the dead body was recovered from inside the drain at the dividing road of Sector 24 and Deep Vihar, Rohini. (viii) The post‑mortem report (Exhibit PW‑17/A) opined the cause of death as asphyxia consequent upon smothering, and Injury 1 caused by manual pressure over mouth and nose was sufficient to cause death in the ordinary course of nature. (ix) The appellant’s Wagon‑R bearing registration No. DL 2CAF 7578 was recovered from outside his residence at C‑4/3, Sector 11, Rohini. The crime team report (Exhibit PW‑39/B) noted blood stains on the passenger seat cover and on the car jack handle with a screwdriver‑like shape. The Forensic Science Laboratory report (Exhibit PW‑38/A) stated that the blood on the car jack handle matched the blood of the deceased. Inside the dashboard, the registration certificate and driver’s licence of the appellant’s father, Mahender Nagpal, were found and seized. (x) A supplementary disclosure statement (Exhibit PW‑24/A) records that on 21 March 2009 the appellant led the police to Shiv Stationery shop at B‑5/55, Sector 11, Rohini, from where the deceased had purchased one register and two gel pens, and from where the deceased was kidnapped. The shopkeeper Shiv Singh (Witness 20) identified a register with the stamp of M/s Shiv Stationery on the first page, which was seized vide memo Ex.PW‑20/A. A wrapper containing two gel pens had already been recovered on 19 March 2009 from the spot where the dead body was found. (xi) A voice recording of a call between Witness 5 and the appellant was recovered from the mobile phone of Witness 25; it contained the voice of the deceased and was identified by Witness 36. The recording was sent for forensic examination and the Forensic Science Laboratory (Physics) report (Exhibit PW‑5/A‑6) stated that the appellant’s voice in the conversation matched his voice sample. (xii) The appellant was identified by Jai Pal Singh Mann (Witness 34) and the deceased (through photographs) as having seen the deceased in the company of the appellant on 18 March 2009 at about 9.00‑9.30 PM in the front seat of a Wagon‑R car, when he was stopped by the appellant with a request for drinking water. (xiii) The appellant’s disclosure dated 19 March 2009 revealed that he committed the crime owing to high amounts of debt. Amit Kumar Ganguly (Witness 13), Chief Manager at Bank of India, proved an outstanding amount of Rs 28.37 lakhs, classified as a non‑performing asset on 31 March 2009. Sahil (Witness 19) deposed about financial losses incurred by the appellant’s father in business and that the appellant borrowed money from friends. Naveen Hooda (Witness 26) stated that he gave a loan of Rs 25,000 in the first week of February 2009 and a further loan of Rs 38,000 about a week later., In addition to the above submissions, the prosecution contended that the disclosure and recovery of the dead body at the appellant’s instance was proved by the deceased’s father (Witness 36), who was present at the time of the appellant’s arrest, and there is nothing on record to suggest any enmity between the appellant and the family. Witness 3 and Witness 39 deposed that they had received wireless messages directing them to the dry drain where the dead body was recovered. The Zee News video (Exhibit DW‑1/A) relied upon by the appellant is neither supported by a certificate under Section 65B of the Evidence Act nor does it show a 360‑degree view of the spot, nor does it reflect the time, date and place of recording, as admitted by the video. Therefore, it cannot be said that the appellant was not present at the spot. The appellant’s case that he was not present at the time of recovery of the Wagon‑R car from his house was rebutted by the testimony of Witness 27, Witness 40, Witness 42, and Witness 36, and there is no reason to doubt these witnesses. The officer who conducted the mechanical inspection of the car (Witness 23), the crime team official (Witness 39), the victim’s father and the Investigating Officer have consistently deposed that the key was available at the time of inspection. The appellant’s claim that the actual culprit was Devender Sharma @ Dev (Witness 5) was demolished by the Call Detail Record and location analysis of mobile No. 9899902999 belonging to Witness 5, which showed that at the time of the offence, Witness 5 was not in Rohini but moving towards Chattarpur, a substantial distance away. It was also the appellant’s case that the version of the last‑seen witness (Witness 34) was not believable and that it was inconceivable that the deceased did not raise any alarm when Witness 34 saw him. The prosecution submitted that Witness 34 gave a detailed account of the incident, leaving no doubt that he saw the deceased in the company of the appellant. The reason the deceased did not raise an alarm was that the appellant and the deceased were known to each other, and the deceased was in the appellant’s company from 6.00 PM to 10.30 PM, showing that the deceased was not aware of the appellant’s intention to kill him., Having heard counsel for the parties and perused the record, the following evidence emerges. Brijesh Mahajan (Witness 1) deposed that on 15 March 2009 his elder brother Rajesh had gone to Chandigarh with his elder son Vaibhav and his younger son Manan (the deceased) was living with them in a joint family. On 18 March 2009, at about 6.30‑7.00 PM, Manan went to purchase some articles from a nearby stationery shop but did not return. He searched for him in the neighbourhood; when no clue was found, he called the emergency number 100 and spoke with his brother Rajesh, who told him that an unknown person had sent a message from mobile No. 9990401054 to his mobile No. 9811092230 demanding ransom for his son Manan. He informed the police and his statement (Exhibit PW‑1/A) was recorded. Police searched and tried to locate Manan at different places. On 19 March 2009 his brother also returned, and during investigation police apprehended Shanky @ Jeevak Nagpal @ Vee vek Nagpal. Jeevak Nagpal disclosed the kidnapping and murder of his nephew Manan for money. The appellant led them to the 60‑foot dividing road between Sector 24, Rohini and Deep Vihar in the dry drain, pointed out the place and the dead body was recovered., Rajesh Mahajan (Witness 36) deposed that on 15 March 2009 he had gone to Chandigarh with his elder son Vaibhav concerning some business work. On 18 March 2009 at about 9.30 PM, while he and his son Vaibhav Mahajan were about to leave Chandigarh, he learned from a family member that his younger son/deceased had gone missing.
id_48	1	After checking his mobile phone Number 9811092230, the appellant found several messages from mobile Number 9990401054 concerning the kidnapping of his son/deceased and a demand for ransom. The first message read, “humne apke bete Manan ko kidnap kar liya he, ab hum jaisa kehte jayen vaise karte jao, police ko batane ki hoshiyari mat karna.” The second message demanded “hume 25 lakh rupiya 30 minute ke andar chahiye, phir hum aage batayenge ke kya karna hain.” Another message demanded a ransom of 55 lakhs, and a further message demanded a ransom of 7 crores to be paid by 7.00 PM on the next day., On the morning of 19 March 2009 at about 4.00 AM, the appellant and his son Vaibhah reached Delhi; police officials were present at his house and he joined the investigation with them. In the same morning, messages continued to arrive from the same number, one reading “15 minute mein ek ek ungli katenge, ungliya khatam to wo bhi khatam, itna hi time he tere pass.” At about 11.30–11.45 AM, a boy identified as Jeevak Nagpal (also called Shanky) was seen in a suspicious condition near his house. The appellant knew the accused as previously residing at House Number C‑5/57, Sector‑11, Rohini, two houses away from his own house (C‑5/53). When called by police, the appellant tried to run away but was overpowered. Two mobile phones, a TIA make and a Nokia 7670, were recovered from the appellant. The TIA phone contained SIM Number 9990401054 and the Nokia 7670 contained SIM Number 9873883039. The police reduced the contents of the SMSs sent from SIM Number 9990401054 to writing in the appellant’s presence (Exhibit PW‑36/A‑1 to Exhibit PW‑36/A‑3). The accused was then arrested vide memo Exhibit PW‑36/B, and his disclosure statement (Exhibit PW‑36/E) was recorded., The appellant led the police to the dividing road of Sector‑24 and Deep Vihar, Rohini, and then to a dry drain where the dead body of the deceased was recovered. The body was taken to B.J.R.M. Hospital, where the appellant identified it as his son/deceased (Exhibit PW‑36/R). After post‑mortem, the body was handed over to him. He again joined the investigation and led the police to his house, where a Wagon‑R car bearing registration Number DL 2CAF 7578 was stationed outside. The mobile crime team inspected the car and found bloodstains on the seat adjoining the driver’s seat and a jack handle with blood on its pointed side. Both the seat cover and the jack handle were seized. On 22 March 2009, the Investigating Officer informed the appellant that Ajeet Singh Mahendru had produced a Nokia N73 with SIM Number 9873363860, used by Devender Sharma (also called Dev). A software‑recorded conversation between them and the appellant on the night of 18 March 2009 was played; the appellant identified the voice of his son/deceased and his own voice. The appellant stated that his son/deceased was pleading, “bhaiya maine kya bigada hai aapka, jo mereko maarna chahte ho.” On 26 March 2009, the appellant handed over his Nokia N73 with SIM Number 9811092230, on which he had received the kidnapping and ransom messages. The text messages were written by the Investigating Officer (Exhibit PW‑24/C‑1 to C‑5). In his cross‑examination, he said he learned of the kidnapping at about 10.30–10.45 PM when he read the messages for the first time. He attempted to contact the number from which the messages were received but could not reach it. He denied that his son/deceased was familiar with opening and closing or locking the car doors, but stated that the deceased was familiar with opening and closing the window panes of the car doors. He could not recall whether the main door of his house was closed or open when he arrived with police., Witness Jai Pal Singh Mann (Witness‑34) testified that on 18 March 2009, while returning home in his Alto car around 9.00–9.30 PM, the appellant indicated to stop the car at 60 foot road, Sector‑24, Rohini, after crossing the office of Dada Dev Property. The appellant was standing near a Wagon‑R car bearing Number 7578 and asked for water. Jai Pal Singh Mann told him he could go to an office at Khasra Number 32/22, Block‑C‑1, Deep Vihar, about half a kilometre away. He saw a child aged about 10–12 years sitting inside the Wagon‑R car. Photographs (Exhibit PW‑3/A‑1 to Exhibit PW‑3/A‑24) were shown to him, and he identified the child in several of them. He stated that the minor child was wearing a capri and a yellow T‑shirt, was seated on the front seat adjacent to the driver’s seat, and that the engine of the Wagon‑R was not switched on., Witness Devender Sharma (Witness‑5) deposed that the appellant had borrowed ₹15,000 from him at the end of 2008 and repeatedly demanded its return, which the appellant promised to do after one or two days. On 18 March 2009 at about 8.30 PM, Devender, along with friend Harpreet (also called Sonu) and Ajeet Singh Mahendru (also called Bobby), were travelling in a Swift car in Rohini. Seeking his money, Devender reached Sector‑11, Rohini at about 9.30 PM and went to the appellant’s house, where the appellant was not present. He then went to Sector‑15, Rohini, picked up a person named Monty, and proceeded to Chattarpur Mandir. While on the way, he used his friend Bobby’s mobile number 9873363860 to call the appellant at about 10.15 PM, asking for the money. During the call, a child’s voice was heard saying, “bhaiya tum mujhe kyun marna chahte ho, maine tumhara kya bigada hai.” The appellant disconnected the call. Bobby later informed Devender that a call‑recording software might have captured the conversation. Bobby played the recording for Devender and, at about 10.35 PM, Devender called the appellant again from Bobby’s number; the appellant claimed no one was with him and disconnected. Subsequent attempts to call the appellant found his phone switched off. On 22 March 2009, at Police Station Prashant Vihar, Bobby produced his Nokia N73; the Investigating Officer inspected it and heard the conversation, reducing it to writing (Exhibit PW‑5/A‑1 to Exhibit PW‑5/A‑4) and preparing a CD (Exhibit PW‑5/C). On 25 March 2009, the Investigating Officer obtained Devender’s voice sample with the help of a private videographer, and later obtained the appellant’s voice sample on a separate audio cassette., Witness Ajeet Singh Mahendru (Witness‑25) corroborated Devender’s version. In his cross‑examination, he stated that when police were about to seize his mobile, he informed them that it contained a personal data recording; the police returned the phone and he deleted all data except the call recording between the appellant and Devender. He deleted the aforesaid data in the presence of police; two calls between the appellant and Devender were not deleted, and no conversation between the appellant and Dev was deleted., Witness Sahil (Witness‑19) testified that the appellant previously resided at C‑5/57, Rohini, Sector‑11, and was his friend for many years. The appellant and his family later shifted to C‑4/C, Sector‑11, Rohini. On 18 March 2009, the appellant called Sahil at about 9.00 PM when Sahil, his mother and cousin arrived at the Mahajan house and learned that their son/deceased, who had gone to Shiv Stationery, was missing. At about 9.00–9.15 PM, the appellant informed Sahil that his Wagon‑R car had met with an accident and required a crane. Sahil found the contact number of RACE Company online, called the helpline, and gave the appellant’s mobile number. At about 10.00 PM, the appellant asked Sahil to come on his bike, saying he would take his car the next day and requested ₹1,000 in case the crane company arrived, as he had no money. Sahil reached the dividing road of Sector‑24/25 at about 10.30 PM; the appellant’s phone was switched off. He saw a crane, spoke with driver Daya Nand and helper Nirmal, waited for about half an hour at a red‑light signal, and then sent an SMS to the appellant asking about his whereabouts. At about 11.10 PM, the appellant called and said he was standing ahead of Sirifort College on Bawana Road. Sahil instructed the crane operator to follow him; they reached the T‑point, main road, dividing road of Sector‑24, Rohini, and Deep Vihar, where the appellant pointed to his Wagon‑R car. The crane towed the car to the appellant’s house. The next morning at about 7.15 AM, the appellant called Sahil asking if Manan had reached his house; Sahil replied he was not aware. The appellant later told Sahil that his father had suffered a financial loss, they were in hardship, and the father was in debt of ₹25–30 lakhs., Witness Daya Nand (Witness‑15) deposed that he drove the crane and his helper Nirmal assisted him; they parked the crane (Registration Number DL 1LE 1578) at Mayapuri D‑Block Crane Stand. His supervisor Mukesh had the helpline numbers of RACE Company and called them as needed. On 18 March 2009 at about 9.30 PM, Mukesh called Daya Nand informing him to take the crane to Rithala Metro Station, Rohini, to tow a broken‑down Wagon‑R car bearing Number 7578. Daya Nand and Nirmal reached Rithala Metro Station, called the customer who directed them to a red‑light signal at the crossing of Sector‑24 and 25, Rohini. A motorcyclist identified the customer as the appellant and guided them to the location. Daya Nand correctly identified the appellant as the customer who had requested the crane service. He towed the car to House Number C‑4/3, Sector‑11, Rohini and was paid ₹800 for his services. After three to four days, he was called to Police Station Prashant Vihar, where his statement was recorded. He stated that because the appellant did not ask for a bill, no bill was issued., Investigating Officer/Inspector Pratap Singh (Witness‑42) stated that on 18 March 2009 at about 9.30 PM, he received information vide DD Number 37PP at Police Post Sector 16, Rohini, regarding the missing boy from House Number C‑5/53, Rohini, Sector‑11, and forwarded it to ASI Bal Kishan for inquiry. He visited the spot, met Brijesh Mahajan and other family members, who said the deceased had gone to a nearby stationery shop at about 6.00–6.30 PM and had not returned. Searches in parks, streets and markets yielded no clue. Brijesh Mahajan informed him that his elder brother, the father of the deceased, had gone to Chandigarh. Brijesh also told him about a telephonic conversation in which Rajesh Mahajan received SMS messages about the kidnapping from mobile Number 9990401054. The Investigating Officer recorded Brijesh Mahajan’s statement (Exhibit PW‑1/A) and prepared a report (Exhibit PW‑42/A) on which an FIR was registered. Technical surveillance was placed on the mobile number. On 19 March 2009 at about 4.00 AM, Rajesh Mahajan returned to Delhi and joined the investigation. At about 11.30 AM, technical surveillance located SIM Number 9990401054 near Sector‑11, Rohini, and plain‑clothes secret informers were deployed. An informant reported a person in suspicious condition roaming around the deceased’s house; the person, identified as Jeevan Nagpal, was apprehended. He produced two mobile phones, one TIA make and one black Nokia, from which the text messages to Rajesh Mahajan had been sent. The appellant was arrested vide memo Exhibit PW‑36/C, and transcripts of the messages were prepared. The appellant’s father was informed, spare clothes were arranged, and the clothes worn at the time of apprehension were seized (vide memo Exhibit PW‑40/A). The appellant led the police to a dry drain at the dividing road between Sector‑24, Rohini and Deep Vihar, where the dead body was recovered. The crime team lifted eight exhibits from the spot. The dead body was sent to B.J.R.M. Hospital for post‑mortem examination. On 19 March 2009 at about 6.30 PM, the appellant led the police to Sector‑11, Rohini, where, outside his house (C‑4/3, Sector‑11, Rohini), the Wagon‑R car bearing registration Number DL 2CAF 7578 (silver colour) was found. The mobile team inspected the car and found bloodstains on the seat adjoining the driver’s seat and a jack handle with blood on its pointed side; the jack handle was seized (vide memo Exhibit PW‑36/S). An RC and driving licence in the name of the appellant’s father were also recovered and seized. In his supplementary disclosure statement (Exhibit PW‑24/A), the appellant disclosed that he had purchased the TIA mobile from a shop at Sector‑11, Rohini named Raj Hans Telecom. Shopkeeper Shiv Kumar identified the appellant as the boy who bought the TIA phone for ₹1,200 on 24 February 2009. The appellant then led the police to M/s Shiv Stationery Shop, from where the deceased had purchased a register and two gel pens; the appellant kidnapped the deceased as he left the shop. From the appellant’s house, a register bearing the stamp of M/s Shiv Stationery on the first page was seized (vide memo Exhibit PW‑20/A). On 22 March 2009, Ajeet Singh Mahendru and Devender were also interrogated. A call recording from Ajeet Mahendru’s phone captured the voices of the appellant and the deceased in a call made by Devender to the appellant. Driver Daya Nand and helper Nirmal of RACE Company were also interrogated, and voice samples of the appellant and Devender were obtained. Upon completion of the investigation, a charge‑sheet was filed., In his statement under Section 313 of the Code of Criminal Procedure, appellant Jeevak Nagpal asserted that he had been wrongly implicated, denying that he kidnapped, killed, or demanded any ransom. He claimed that on 18 March 2009 he was at home and in the evening took out his Wagon‑R car, which had an electrical and mechanical snag, seeking help from his friend Sahil. On 19 March 2009, while at his home, Brijesh Mahajan, his wife and some police personnel visited, lifted him, and took him to the Crime Branch office at Avantika; his parents were taken to the Crime Branch in a separate vehicle. Police locked his house and retained the keys. He was then taken to the Deputy Commissioner of Police office, where media persons were present, photographs were taken, and he was made to give a statement before a media channel. He denied knowledge of the murder or the location where the dead body was recovered, stating that the location was pointed out by Devender Sharma. He alleged that his parents were detained at Sector‑1, Avantika, and that the house keys were returned to his parents only after they moved to the National Human Rights Commission. He claimed that the jack handle of the car was planted and actually belonged to Devender Sharma, while his own tool kit, including the jack handle, was lying under the stepney. He further alleged that the Investigating Officer had planted witnesses against him and spared the actual culprits, Dev and his company, because Dev’s father was a Delhi police officer who managed the Investigating Officer. He also alleged that the Investigating Officer deliberately did not send the TIA mobile for forensic investigation. He maintained that he was innocent and falsely implicated., The appellant also appeared as Defence Witness DW‑13. He testified that on 18 March 2009 he was at his house and in the evening took out his Wagon‑R car, which had some electrical and mechanical snag, and sought help from his friend Sahil. On 19 March 2009, while at his home, Brijesh Mahajan, his wife and some police personnel visited, lifted him and took him to the Crime Branch office at Avantika. His parents were also taken to the Crime Branch in a separate vehicle. Police locked his house and retained the keys. He was then taken to the Deputy Commissioner of Police office, where many media persons were present, photographs were taken, and he was made to give a statement before a media channel. He denied knowing about the murder of the deceased or the place from where the dead body was recovered, stating that the place of recovery was pointed out by Devender Sharma. He further stated that his parents were detained at Sector‑1, Avantika and that the house keys were given to his parents only after they moved to the National Human Rights Commission. He claimed that the jack handle of the car was planted and belonged to Devender Sharma, whereas his entire tool kit, including the jack handle, was lying under the stepney. He alleged that the Investigating Officer had planted witnesses against him and spared the actual culprits, Dev and his company, because the father of Dev was in Delhi police who had managed the Investigating Officer. He further alleged that the Investigating Officer deliberately did not send the TIA mobile for forensic investigation. He maintained that he was innocent and falsely implicated., The prosecution case is based on circumstantial evidence, with the principal eyewitness being Jai Pal Singh Mann (Witness‑23), who, while driving his Alto car at about 9.00–9.30 PM, saw the deceased child aged 10 to 12 years sitting in the appellant’s Wagon‑R car after the appellant indicated to stop the car and asked for water. He identified the child in photographs (Exhibit PW‑3/A‑1, A‑5, A‑6, A‑19 and A‑20). The appellant, appearing as Defence Witness DW‑13, admitted ownership of mobile Number 9873883039, which was proved by the prosecution through examination of the CAF details (Exhibit PW‑6/E) showing the mobile was in the name of Vivek Nagpal, son of Maninder Nagpal, and a certificate under Section 65B of the Indian Evidence Act (Exhibit PW‑6/G). The appellant denied possession of the TIA mobile phone recovered from him, which contained SIM Number 9990401054 used to send messages to the father of the deceased, Rajesh Mahajan (Witness‑36). Call detail records revealed that the appellant used SIM Number 9990401054 in the TIA handset from 8.48 PM to 11.12 PM on 18 March 2009, after which the SIM was reverted to the Nokia 7670 handset. The prosecution proved that the TIA mobile was sold to the appellant with SIM Number 9990401054 by Sunil Rastogi (Witness‑28) on 13 February 2009 under the identity of Sanjay, son of Marl Ram, resident of East Kidwai Nagar. The appellant denied changing the SIM card in the Nokia 7670. Call detail records of mobile Number 9873883039 were exhibited, showing usage in the TIA handset for communicating with Witness‑5, Witness‑25, Witness‑19 and Witness‑16, as detailed below:\n\n[Call and SMS chart omitted for brevity]
id_48	2	The defence of the appellant that he did not use the TIA mobile on which SIM No. 9990401054 was also used and that no messages were sent to Sahil or to Rajesh Mahajan falls flat in view of the call records and SMSs noted above. The prosecution has proved beyond reasonable doubt, from the messages retrieved from the phone of Rajesh Mahajan (Witness 36), the father of the deceased, that ransom messages were sent to him from mobile No. 9990401054. Further, the prosecution has proved beyond reasonable doubt that the appellant called Sahil and Daya Nand, the person from the crane, to tow the vehicle, as is evident from the call details., The fact that the appellant sought help from Sahil is admitted by him in answer to Question No. 202 put to him in his statement under Section 313 of the Criminal Procedure Code, wherein he said that on 18 March 2009 he was present at his house in the evening and later took out his Wagon R car which developed an electrical and mechanical snag, and therefore he took the help of his friend Sahil., The prosecution has proved beyond doubt that the appellant was in possession of the SIM for mobile No. 9990401054 and that ransom calls were made from the said mobile number to the mobile phone of Rajesh Mahajan (Witness 36) 9811092230. The call‑detail‑record (CDR) analysis of mobile No. 9990401054 shows that the number was used in the TIA mobile handset (IMEI No. 354101000203940) as follows: usage up to 08:30:10 pm on 18 March 2009 and from 12:30:02 am on 19 March 2009., The chats/SMS transacted from 7 pm on 18 March 2009 to 9:40 am on 19 March 2009 between the appellant and the father of the deceased were retrieved from both mobile phones. The handwritten SMS exhibited as Witness 24/C1 to C5 contain a clear ransom demand. The text of the SMS received on mobile No. 9811092230 of Shri Rajesh Mahajan, son of Shri M.C. Mahajan, residing at C‑5/53, Sector 11, Rohini, Delhi, from 7 pm on 18 March 2009 till 9:34 am on 19 March 2009, from mobile No. 9990401054 in possession of the appellant, is reproduced in the record., From these messages it is proved beyond reasonable doubt that the appellant kidnapped the 12‑year‑old child, son of Rajesh Mahajan, and demanded ransom, failing which his son would be killed. Even ignoring the recorded conversation received in the mobile phone of Ajit Singh Mahendru, wherein Witness 5 (Devender Sharma) was speaking to the appellant and a child's voice was heard saying, \Bhaiya, tum mujhe kyon marna chahte ho, maine tumhara kya bigada hai?\, the prosecution has proved its case beyond reasonable doubt., The appellant was known to the deceased and his family, as deposed by Rajesh Mahajan, who stated that the appellant previously resided in House C‑5/57, Sector 11, Rohini, two houses away from their home, and later his family sold that house and moved elsewhere. The appellant and his family were in need of money, which motivated the kidnapping for ransom. Witness 13 (Amit Kumar Ganguli, Chief Manager, Bank of India, Hamdard Dava Khana Branch) proved that the appellant’s father, Mahender Nagpal, had an outstanding loan of Rs 28.37 lakhs as on 18 March 2009 and that his account was classified as a Non‑Performing Asset on 31 March 2009. Witness 19 (Sahil), the appellant’s friend, deposed about the financial losses incurred by the appellant’s father and the loan of Rs 20,000 that the appellant requested from him, which was refused. Witness 26 (Naveen Hooda) deposed that he gave a loan of Rs 25,000 to the appellant in the first week of February 2009 and a further loan of Rs 38,000 at 2 % interest about a week later, and that he made calls to the appellant demanding repayment. The CDRs of the appellant’s mobile No. 9873883039 show a call from Naveen Hooda’s mobile No. 9873656536 on the evening of 18 March., Witness 41 (Rijul Mahajan), aged 15 and cousin of the deceased, deposed that on 18 March 2009 at about 12 noon, when he came out of the school gate to board his school van, he saw the appellant standing outside the school. The appellant signalled him to come near and tried to snatch the magazine he was holding, but Rijul told the appellant that his cab driver was waiting, and he left. At 5:30 pm on the same day, after attending Taekwondo class, Rijul was returning with two friends, Sumit and Mannu, when the appellant, sitting in a Wagon R, offered them a ride. Sumit refused, but Mannu accepted and went away in the appellant’s car., Regarding post‑event conduct, Witness 19 (Sahil) and the two persons on the crane (Witnesses 15 and 16) stated that when they reached the crane for towing the car, they waited for the appellant for 30‑40 minutes at the red light of the crossing of Sectors 24 and 25, Rohini. As the appellant was not reachable, they later learned the exact spot where the Wagon R was and proceeded to the T‑point at the main dividing road of Sectors 24 and 27, Rohini, where they met the appellant. This 30‑40 minute gap allowed the appellant to commit the murder of the 12‑year‑old child and dispose of the body in a nearby dry drain., The CDRs of mobile No. 9990401054, from which the father of the deceased received ransom messages on the evening of 18 March 2009 and the morning of 19 March 2009, show that the handset with IMEI No. 354101000203940 was also used with the SIM of mobile No. 9873883039, registered in the appellant’s name, from 8:48 pm to 11:12:45 pm on 18 March. Learned counsel for the appellant sought to discredit the recovery of the TIA mobile, claiming that its IMEI number was not reflected in the seizure memo. However, the seizure memo (Exhibit PW‑36/F) records the IMEI as 35410, the initial five digits of the full IMEI 354101000203940, rendering the contention untenable., The CDRs of both the appellant’s mobile numbers show his location near the victim’s house in Sector ‑11, Rohini, from 5:35:16 pm to 7:04:50 pm on 18 March, and again in the morning of 19 March. Although the appellant was a resident of C‑4/3, Sector 11, Rohini, after shifting from C‑5/57, the CDRs also place him at Sector 24, Rohini, from 8:47:58 pm to 11:12:23 pm on 18 March, the location where the victim’s body was discovered, which is clearly incriminating. The learned counsel’s argument that tower range variations could mislead is noted, but the consistent presence of the appellant’s handset in the relevant area undermines that claim., The dead body was recovered from the dry drain at the dividing road of Sector 24, Rohini and Deep Vihar. Learned counsel for the appellant contended that the appellant was not present at the recovery because he was in the DCP office, as shown in a press conference and a ZEE News video (DW‑1). The video only shows the dead body and does not capture other persons; therefore, it cannot be assumed that the appellant was absent. Moreover, no certificate under Section 65B of the Indian Evidence Act was filed by DW‑1 or any other competent person, rendering the video inadmissible. The appellant’s claim that the crime‑team report notes the accused was arrested after a thorough investigation is rejected; the arrest memo shows the appellant was arrested at 12:00 pm on 19 March 2009, while the crime‑team inspection took place from 1:00 pm to 2:15 pm on the same day. The investigating officer (Witness 3 and Witness 39) stated that when the crime‑team arrived, the investigating officer was present and showed them the spot where the dead body lay, which was possible only after the appellant’s arrest., The dead body was identified by the father and uncle of the deceased (Witnesses 36 and 1). A white and blue towel found on the footpath near the body had blood stains; forensic science laboratory (FSL) report confirmed human blood of group A, matching the deceased’s blood group. Although the towel did not bear the appellant’s fingerprints or blood, its proximity to the body indicates it was used for wiping after disposing of the body., The Wagon R recovered in front of the appellant’s house had bloodstains on the front passenger seat cover; the FSL report confirmed human blood on the seat cover. While the blood group was not determined, the presence of human blood on the appellant’s car requires explanation, especially since the deceased was seen sitting on that seat by Witness 35 (Jai Pal Singh Mann) on the previous night. A car‑jack handle with a screwdriver‑like shape, found with blood of group A matching the deceased, was also recovered. The appellant claimed the jack handle was not from his car because the complete tool kit was present under the stepney. However, the FSL report and post‑mortem opinion (Exhibit PW‑17/C) concluded that injuries numbered 2, 5, 6, 8 and 9 were consistent with being caused by such a blunt penetrating object, linking the jack handle to the murder., According to the supplementary disclosure statement recorded on 20 March 2009, the appellant led the police to Rajhans Telecom, where he had purchased the TIA handset on 24 February 2009. The shop owner, Shiv Kumar (Witness 2), identified the appellant as the purchaser of the handset for Rs 12,000. Although no receipt was produced, the appellant’s identification by Shiv Kumar is admissible under Section 8 of the Indian Evidence Act (see (1972) 1 SCC 249, H.P. Administration v. Om Prakash)., The appellant also led the police to Shiv Stationery shop, B‑5/55, Sector 11, Rohini, where the deceased had purchased a register and two gel pens; the wrapper of one gel pen was recovered near the dead body. The register (Exhibit P‑20/1) bearing the words \Shiv Long Exercise Book\ was found on the appellant’s dining table and is admissible under Section 27 of the Evidence Act. The investigating officer prepared an un‑scaled site plan of the appellant’s residence showing the recovery of the register (Exhibit PW‑20/B). Shiv Kumar (Witness 20) deposed that on the evening of 18 March 2009 the deceased purchased a register and two gel pens from him., As admitted by the appellant, he took the services of Sahil when his car broke down. The prosecution has shown that the appellant sought Sahil’s help (Witness 19). Sahil called personnel from RACE services to tow the appellant’s car; however, the appellant did not answer their call for about 30‑40 minutes, presumably because he was disposing of the victim’s body., The post‑mortem report dated 19 March 2009 estimated the time since death at approximately 17‑18 hours, consistent with the prosecution’s case that the victim was murdered between 9:30 pm and 11:10 pm, the period during which the appellant first called Sahil for a crane and later contacted him again at 11:10 pm to ascertain the crane’s whereabouts. According to Witness 19 (Sahil), he received a call from the appellant at about 9:00‑9:15 pm informing him that his Wagon R had met with an accident and that crane services were required. Sahil reached the Sirifort College dividing road at Sector 24/25, Rohini at about 10:30 pm, but the appellant’s phone was switched off, so Sahil left an SMS. At about 11:10 pm the appellant called again, stating he was ahead of Sirifort College on Bawana Road, after which Sahil met him and, at about 11:40 pm, arrived at the appellant’s house with the crane and the Wagon R., The clothes worn by the appellant at the time of the offence, which were recovered at his instance, contained human blood of group A, matching the deceased’s blood group., The defence of the appellant, particularly through his mother, alleged illegal arrest and custodial violence. The appellant was produced before the learned Metropolitan Magistrate shortly after arrest, and no pleas were taken at that stage. The mother later lodged a complaint, leading to a vigilance inquiry, but the report could not be produced as the record had been destroyed. Consequently, the custodial‑violence plea cannot be entertained in the absence of supporting evidence., In view of the evidence discussed above, the prosecution has proved beyond reasonable doubt that the appellant committed kidnapping for ransom and murder of the minor child, Manan Mahajan, aged around 12 years, and subsequently destroyed evidence by dumping the dead body in a dry drain and threatening the father. Accordingly, his conviction for offences punishable under Sections 364A, 302, 201 and 506 of the Indian Penal Code is upheld., The appellant has been sentenced to death for the offence punishable under Section 302 of the Indian Penal Code, imprisonment for life for the offence punishable under Section 364A of the Indian Penal Code, rigorous imprisonment for seven years along with a fine of Rs 30,000 (in default, simple imprisonment for six months) for the offence punishable under Section 201 of the Indian Penal Code, and rigorous imprisonment for seven years along with a fine of Rs 30,000 (in default, simple imprisonment for six months) for the offence punishable under Section 506 of the Indian Penal Code., At the time of awarding the death sentence, the learned Trial Court considered mitigating circumstances: the appellant’s parents were 56 and 51 years old, he had an unmarried younger brother aged 30, and the appellant himself was unmarried and only 21 years old, pursuing studies for Chartered Accountant. The Court then considered aggravating circumstances: the appellant kidnapped his neighbour’s son, demanded ransom, threatened the family, murdered the child with a car‑jack handle, smothered the child, and dumped the body to dispose of evidence. The Court held that the manner of commission was cruel and gruesome and therefore appropriate to award the death sentence, subject to confirmation by this Court., The guidelines for awarding capital punishment, as laid down by the Honorable Supreme Court in AIR 1983 SC 957, Macchi Singh v. State of Punjab, state that death may be awarded in the rarest of rare cases when society’s collective conscience is so shocked that the judiciary must impose the death penalty irrespective of personal views on its desirability. The guidelines enumerate factors such as the manner of commission of murder, motive, anti‑social nature, magnitude of crime, and personality of the victim., Applying these guidelines, the present case shows that the appellant acted out of financial desperation, not pre‑planning, and used a car‑jack handle to inflict injuries after smothering the child. While the murder was brutal, it does not rise to the level of diabolical or grotesque conduct that would shock the collective conscience to the extent required for the rarest of rare category., No material has been placed on record by the State to show that the appellant is a menace to society with no possibility of reformation, nor that death is the only viable sentence. The Supreme Court, in (2008) 13 SCC 767, Swamy Shraddananda (2) v. State of Karnataka, noted that a special category of sentence may be fashioned whereby a convict undergoes a period of incarceration without remission, reserving the death penalty for truly rare cases. In the present matter, such a category is not warranted.
id_48	3	When an appellant comes to the Supreme Court carrying a death sentence awarded by the trial court and confirmed by the High Court, the Supreme Court may find, as in the present appeal, that the case just falls short of the rarest of the rare category and may feel somewhat reluctant in endorsing the death sentence. But at the same time, having regard to the nature of the crime, the Supreme Court may strongly feel that a sentence of life imprisonment subject to remission normally works out to a term of 14 years would be grossly disproportionate and inadequate. What then should the Supreme Court do? If the Supreme Court's option is limited only to two punishments, one a sentence of imprisonment, for all intents and purposes, of not more than 14 years and the other death, the Supreme Court may feel tempted and find itself nudged into endorsing the death penalty. Such a course would indeed disastrous. A far more just, reasonable and proper course would be to expand the options and to take over what, as a matter of fact, lawfully belongs to the Supreme Court i.e. the vast hiatus between 14 years' imprisonment and death. It needs to be emphasised that the Supreme Court would take recourse to the expanded option primarily because in the facts of the case, the sentence of 14 years' imprisonment would amount to no punishment at all., Further, the formalisation of a special category of sentence, though for an extremely few number of cases, shall have the great advantage of having the death penalty on the statute book but to actually use it as little as possible, really in the rarest of rare cases. This would only be a reassertion of the Constitution Bench decision in Bachan Singh (Bachan Singh v. State of Punjab, (1980) 2 SCC 684: 1980 SCC (Criminal) 580) besides being in accord with the modern trends in penology., In the light of the discussions made above we are clearly of the view that there is a good and strong basis for the Supreme Court to substitute a death sentence by life imprisonment or by a term in excess of fourteen years and further to direct that the convict must not be released from prison for the rest of his life or for the actual term as specified in the order, as the case may be., Even in the later decision in 2014 (2) SCALE 301 Birju vs. State of Madhya Pradesh and 2014 (3) SCALE 344 Ashok Debbarma @ Achak Debbarma v. State of Tripura while reiterating the triple test i.e. Crime Test, Criminal Test, and R‑R Test the Supreme Court followed the principles laid down in Swamy Shraddananda., Recently, Honourable Supreme Court in the decision reported as (2023) 2 SCC 353 Manoj & Ors. vs. State of Madhya Pradesh framed guidelines for psychiatric and psychological evaluation of the convict before awarding a death sentence. It was laid down: Practical guidelines to collect mitigating circumstances. There is urgent need to ensure that mitigating circumstances are considered at the trial stage, to avoid slipping into a retributive response to the brutality of the crime, as is noticeably the situation in a majority of cases reaching the appellate stage., Next, the State must in a time-bound manner collect additional information pertaining to the accused. An illustrative, but not exhaustive list is as follows: (a) Age (b) Early family background (siblings, protection of parents, any history of violence or neglect) (c) Present family background (surviving family members, whether married, has children, etc.) (d) Type and level of education (e) Socio‑economic background (including conditions of poverty or deprivation, if any) (f) Criminal antecedents (details of offence and whether convicted, sentence served, if any) (g) Income and the kind of employment (whether none, or temporary or permanent, etc.) (h) Other factors such as history of unstable social behaviour, or mental or psychological ailment(s), alienation of the individual (with reasons, if any), etc. This information should mandatorily be available to the trial court at the sentencing stage. The accused too should be given the same opportunity to produce evidence in rebuttal towards establishing all mitigating circumstances., Lastly, information regarding the accused's jail conduct and behaviour, work done (if any), activities the accused has involved themselves in, and other related details should be called for in the form of a report from the relevant jail authorities (i.e., Probation and Welfare Officer, Superintendent of Jail, etc.). If the appeal is heard after a long hiatus from the trial court's conviction or the High Court's confirmation, as the case may be, a fresh report (rather than the one used by the previous court) from the jail authorities is recommended for a more exact and complete understanding of the contemporaneous progress made by the accused in the time elapsed. The jail authorities must also include a fresh psychiatric and psychological report which will further evidence the reformative progress and reveal post‑conviction mental illness, if any., Further, in the decision reported as 2023 SCC OnLine SC 472 Vikas Chaudhary vs. State of Delhi, Honourable Supreme Court observed: The imperative to conduct evaluation of mitigating circumstances at the trial stage, to avoid slipping into a retributive response to the brutality of the crime which this Court noticed was frequently occurring in several cases, was underlined, and it was categorically held that the Court had to elicit information from the State and the accused. The prosecution also is mandated to produce before the Sessions Court material disclosing psychiatric and psychological evaluation of the accused, which is to preferably be collected beforehand. At the stage when the trial court is informed that the prosecution intends to press for imposition of a capital sentence, the evaluation should be insisted upon; the State is under a duty to present all objective materials, as mentioned in Manoj (supra), having regard to the decision in Bachan Singh (supra) and importantly, the fact that it is in a position to actually gather the materials. Its task is to present the facts relating to the accused, which are favourable and unfavourable, for the Court to impose a just sentence., Since the judgment in Sriharan (supra) reserves the power to impose special or fixed‑term sentences (which may be longer than the minimum specified in Section 433A of the Code of Criminal Procedure, i.e., may extend to considerably long periods such as 30 years), with only the High Courts and the Supreme Court, it is imperative that this exercise is carried out even in cases where the accused might eventually not be imposed the death sentence. To put it simply, although the trial courts are not empowered to impose such special sentences, yet at the stage when they arrive at findings of guilt in the case of a heinous offence, the nature of the sentence to be imposed eventually is unknown; therefore, the prosecution would have to inform the Court and present relevant materials (as elaborated in Manoj) in case the death sentence is proposed. In that event, if ultimately death sentence is not imposed, it is open to the State (or the aggrieved party, under Section 372 of the Code of Criminal Procedure) to appeal against the trial court judgment on the point of sentence; at that stage the evaluation before the High Court would be nuanced and informed with full materials about the convict, which otherwise it would not have the benefit of. Further, if considerable time has elapsed since the trial stage at which this exercise was undertaken, the appellate court should direct that a fresh attempt be made to take into account the contemporaneous progress, if any, made by the convict. In view of the above discussion, it is held that wherever the prosecution is of the opinion that the crime for which an accused is convicted is so grave that death sentence is warranted, it should carry out the exercise of placing the materials, in terms of Manoj, for evaluation. In case this results in imposition of death sentence, at the stage of confirmation, the High Court would have the benefit of independent evaluation of these materials. On the other hand, if death sentence is not imposed, then the High Court may still be in a position to evaluate if the sentence is adequate and, wherever appropriate and just, impose a special or fixed‑term sentence in the course of an appeal by the State or by the complainant/informant. Given the imperative need for such material to form a part of the Court's consideration, it has to be emphasized that in case the trial court has failed to carry out such exercise for whatever reason, the High Court has to call for such material while considering an appeal filed by the State or complainant for enhancement of sentence, whether resulting in imposition of capital punishment or a term sentence., In pursuance of the law laid down by the Honourable Supreme Court, the Supreme Court vide order dated 2 May 2023 directed the Superintendent of Tihar Jail to send a report regarding the conduct of the appellant while in custody and was also directed to get the appellant's psychiatric and psychological evaluation done and send the report to the Supreme Court. Accordingly, a report dated 23 May 2023 from IHBAS was filed wherein it was noted: Based on clinical history, serial mental assessments, psychological testing and evaluation, clinical interview by Medical Board members, it is opined that the patient does not have any psychiatric disorder., As noted above, from the facts of the case, it is evident that the father of the appellant was in debt and besides he himself owed money to Naveen Hooda. The appellant was enrolled in the Chartered Accountant Course. There is no previous criminal history either of the appellant or his family members. On psychological assessment of the appellant, no such ailment or past history has been found. As per the Nominal Roll, the jail conduct of the appellant is satisfactory except for one jail punishment dated 15 July 2020. In the jail the appellant is working as a Sahayak at the legal office. Thus it cannot be said that the option of life sentence is unquestionably foreclosed as the appellant is capable of being reformed. Further, as noted above, the appellant was not armed with any weapon of offence and had kidnapped the minor child aged 12 for ransom, sending ransom messages to the father of the victim, and only when his car broke down and the appellant had to call for help from his friend Sahil did he commit the murder of the victim by smothering him and inflicted injuries with a jack handle available in the car. Hence, even though the offence of kidnapping for ransom was committed in a preplanned manner, it cannot be held that the murder of the victim was committed in a pre‑planned manner., Thus, in view of the settled principles of law viz. sentencing and the factual position in the present case, the Supreme Court comes to the conclusion that this case does not fall in the category of rarest of rare cases. It is not a case where reformation of the appellant is not possible and accordingly, the Supreme Court is of the considered view that a sentence of imprisonment for life with no remission till 20 years would be the appropriate sentence. The sentence of the appellant is thus modified to rigorous imprisonment for life with no remission till 20 years and to pay a fine of 1 lakh rupees, in default of which to undergo simple imprisonment for six months for an offence punishable under Section 302 of the Indian Penal Code. Sentences as awarded by the learned Trial Court for offences punishable under Sections 364A, 201 and 506 of the Indian Penal Code are not modified and will remain the same., Consequently, the reference seeking confirmation of the death sentence of the appellant is turned down. CRL.A. 166/2021 is disposed of upholding the conviction for offences punishable under Sections 302, 364A, 201 and 506 of the Indian Penal Code and modifying the order on sentence as noted above., Copy of the judgment be uploaded on the website of the Supreme Court and also sent to the Superintendent of Tihar Jail for updation of record, intimation to the appellant and necessary compliance.
id_481	0	Sushil Bhatt son of Sukhdev Prasad, address Shop No. 1, Sector 3, Vaishali, District Ghaziabad, Uttar Pradesh 201002, Applicant versus Moon Beverages Ltd. through its Director, unit B/1, Ecotech III, Udyog Kendra, Greater Noida, District Gautam Buddha Nagar, Uttar Pradesh 201306; Moon Beverages Ltd. through its Director, unit A-32, Site IV, Sahibabad Industrial Area, Sahibabad, District Ghaziabad, Uttar Pradesh 201009; Varun Beverages Ltd. through its Director, Plot No. 2E, Udyog Kendra, Uttar Pradesh 201306; District Magistrate, Collectorate, District Gautam Buddha Nagar, Uttar Pradesh 201301; District Magistrate, Collectorate, District Ghaziabad, Uttar Pradesh 201009; Uttar Pradesh Pollution Control Board through its Member Secretary, Building No. TC-12-V, Vibhuti Khand, Gomti Nagar, District Lucknow, Uttar Pradesh 226001; Central Pollution Control Board through its Chairman, Parivesh Bhawan East Arjun Nagar, Near Karkarduma Court, Shahdara, New Delhi 110092; Central Ground Water Authority through its Chairman, Wing 3, West Block 2, Sector 1, R K Puram, New Delhi 110066., Devidas Khatri son of Shri Nand Kishore Khatri, resident 239, Laxmi Nagar, Behind Mangori Walon Ki Bagichi, Brahmpuri, Jaipur 302002, Appellant versus Union of India through Secretary, Ministry of Environment, Forest and Climate Change, Indira Paryavaran Bhawan, Jorbagh, New Delhi 110003; Secretary, Ministry of Jal Shakti, Department of Water Resources, River Development and Ganga Rejuvenation, Rafi Marg, New Delhi 110001; Central Ground Water Authority through its Chairman, 18/11, Jamnagar House, Man Singh Road, New Delhi 110011; Central Ground Water Authority through its Member Secretary, 18/11, Jamnagar House, Man Singh Road, New Delhi 110011., Counsel for the appellant(s)/applicant(s): Mr. Rohit Kumar Tuteja, Advocate. Counsel for the respondent(s): Mr. A. K. Prasad, Advocate for Central Ground Water Authority; Mr. Pradeep Misra and Mr. Daleep Dhyani, Advocates for Union of India; Mr. Balendu Shekhar, Advocate for Uttar Pradesh Pollution Control Board; Mr. Raj Kumar, Advocate for Central Pollution Control Board; Ms. Puja Kalra, Advocate for New Delhi Municipal Council; Mr. Sanjay Upadhyay, Advocate for Respondents 1 and 2 in Appeal No. 45/2020; Mr. R. Jawharlal, Advocate for Respondent 3 in Appeal No. 45/2020., In these matters, a common issue involved is the notification dated 24 September 2020 laying down guidelines to regulate and control ground water abstraction in India. In Original Application 69/2020 (hereinafter referred to as OA), applicant Sushil Bhatt raised the issue of exploitation of ground water in stressed areas by respondents 1 to 3. Since the legal issues are overlapping, both matters have been heard together and are being decided by this National Green Tribunal., The Tribunal frequently receives complaints and applications raising the issue of extraction of ground water in an indiscreet and arbitrary manner, even in areas where availability of ground water is in extreme scarcity or has reached an alarming level, classified by authorities/regulators as over‑exploited, critically exploited or semi‑critical. A similar complaint has been raised in this OA filed under Sections 14 and 15 read with Section 18(1) of the National Green Tribunal Act, 2010 by Sushil Bhatt for protection of fundamental rights under Article 21 of the Constitution of India with regard to a pollution‑free environment, fresh water and air., Sushil Bhatt (Applicant) has made complaint against respondent 1, Moon Beverages Ltd. (hereinafter PP‑1) unit at 2B/1, Ecotech III, Udyog Kendra, Greater Noida, District Gautam Buddha Nagar; respondent 2, Moon Beverages Ltd. (PP‑2) unit at A‑32, Site IV, Sahibabad Industrial Area, Sahibabad, District Ghaziabad, Uttar Pradesh 201009; and respondent 3, Varun Beverages Ltd. (PP‑3) unit at Plot No. 2E, Udyog Kendra, Ecotech III, Greater Noida, Uttar Pradesh 201306, engaged in manufacturing of beverages, soft drinks, bottled water, bottling and other ancillary activities., PP‑1 was issued consent under Sections 25/26 of the Water (Prevention and Control of Pollution) Act, 1974 for discharging effluent, by the Uttar Pradesh Pollution Control Board vide order dated 14 May 2018, valid for the period 1 January 2018 to 31 December 2019. The consent was granted for effluent discharge of 18 kilolitres per day (KLD) for domestic effluent and 496 KLD per day for industrial effluent. Domestic effluent has to be treated through a Sewage Treatment Plant and industrial effluent through an Effluent Treatment Plant. The conditions of consent further provide that arrangement shall be made for collection of water used in the process of domestic effluent separately in a closed water supply system. Treated domestic and industrial effluent discharged outside the premises, if it meets at the end of the final discharge point, arrangement should be made for measurement of effluent and collection of samples. Except effluent mentioned in the application for consent, no other effluent shall enter the said arrangements for collection of effluent. PP‑1 was also required to ensure that domestic effluent shall not be discharged in storm water drain. Additional general and specific conditions are contained in the consent order and may be referred to at a later stage., PP‑3 also received consent orders dated 26 March 2018 under Sections 25/26 of the Water Act, 1974 and Sections 21/22 of the Air (Prevention and Control of Pollution) Act, 1981., It is alleged that PP‑1, PP‑2 and PP‑3 have not obtained any No Objection Certificate (NOC) from the Central Ground Water Authority for extraction of ground water, though their units are situated in notified over‑exploited areas where abstraction of ground water cannot be permitted. Further, Section 28 of the Uttar Pradesh Ground Water (Management and Regulation) Act, 2019 prohibits direct recharge from rain water falling on open land, grounds, roads (paved/unpaved) and agricultural farms, but PP‑1 is indulged in direct recharge, contrary to Section 28(1) of the Uttar Pradesh Ground Water Act, 2019. PP‑1 is abstracting ground water illegally without any NOC from the Central Ground Water Authority and is therefore liable for payment of compensation in accordance with the guidelines issued by the concerned authorities; however, in collusion with authorities, it has not been saddled with any such liability and continues with such illegal act., The matter came up for consideration before the Bench on 1 July 2020, and noticing the grievance of the applicant raised in this OA, the Tribunal found it necessary to obtain a factual and action‑taken report from a Joint Committee comprising the Central Pollution Control Board, Uttar Pradesh Pollution Control Board, Central Ground Water Authority and the District Magistrate, Gautam Buddha Nagar, within two months. The Uttar Pradesh Pollution Control Board was made the nodal agency for coordination and compliance. The Joint Committee submitted its report on 1 October 2020 through the Uttar Pradesh Pollution Control Board; in the meantime, an affidavit/reply dated 26 August 2020 was also filed by the Central Ground Water Authority on 2 September 2020., The affidavit/reply of the Central Ground Water Authority states that all three Project Proponents were issued NOCs initially on 28 September 2015, 3 October 2016 and 31 January 2018, respectively, valid for a period of three years for PP‑1 and two years for PP‑2 and PP‑3. The NOCs expired on 28 September 2018, 2 October 2018 and 2 January 2020, respectively. The unit of PP‑1 is situated in Dadri Block, which is in the semi‑critical category with regard to ground water level; PP‑2 is situated in Sahibabad (Rajapur Block), which is in the over‑exploited category; and PP‑3 is situated in Bisrakh Block, which is also in the over‑exploited category. Further, the NOCs were not renewed in light of the judgment dated 3 January 2019 passed by the Tribunal in OA No. 176/2015, Shailesh Singh versus Hotel Holiday Regency, Moradabad & Others., NOCs were issued at the relevant point of time in accordance with the existing guidelines in force at that point. Subsequently, they were not renewed in light of the directions issued by the Tribunal vide order dated 3 January 2019 in OA No. 176/2015. With regard to further action for continued extraction of ground water, the Central Ground Water Authority said that a Joint Committee has already been constituted by the Tribunal, wherein an officer of the Central Ground Water Authority is also a member; hence further action would be taken as per the report of the said Committee., The Joint Committee inspected the unit of PP‑1 on 26 August 2020. Its report dated 1 October 2020 concluded that the unit manufactures soft drink, juice and packaged drinking water and uses ground water as the main raw material. The unit is located in Bisrakh Block of Gautam Buddha Nagar, which falls under the over‑exploited category as per the Ground Water Resource Assessment 2017 of the Central Ground Water Board. Since September 2018, the unit has been extracting ground water without any NOC from the Central Ground Water Authority. During the visit the unit was found partially operational and not at its optimum capacity. The Effluent Treatment Plant was found operational and conforming to the discharge norms. The unit also manufactures PET bottles for packaging of its drinking water/mineral water but has not registered for Extended Producer Responsibility (EPR) certification with the Central Pollution Control Board/State Pollution Control Board, as applicable, which is a violation under Rules 13(2) of the Plastic Waste Management Rules, 2016 as amended 2018. Based on the observations, the Committee recommended: (1) the unit shall obtain an NOC from the Central Ground Water Authority for the abstraction of ground water, which expired on 28 September 2018; (2) the unit shall provide an Environmental Display Board at the main entrance gate instead of the ETP area and shall update the environmental data regularly; (3) the unit shall obtain EPR certification under the Plastic Waste Management Rules, 2016 as amended 2018 and shall renew the agreement with the plastic waste recycler for collection and recycling of plastic waste; (4) the unit shall install water meters at the borewells and maintain a logbook record; (5) the unit shall install an Online Continuous Emission Monitoring System (OCEMS) at the ETP and provide its connectivity to the Central Pollution Control Board server to ensure continuous and uninterrupted data supply as per the specific condition of the Consent to Operate issued by the Uttar Pradesh Pollution Control Board., The report is accompanied by a copy of the consent order dated 9 February 2020 issued by the Uttar Pradesh Pollution Control Board to PP‑1 under Section 25/26 of the Water Act, 1974, valid for the period 1 January 2020 to 31 December 2021. Similarly, a consent order dated 9 February 2020 issued by the Uttar Pradesh Pollution Control Board under Section 21/22 of the Air Act, 1981 to PP‑1, valid for the same period, is also appended to the report., With regard to disposal of hazardous waste, the Committee placed on record a copy of an agreement dated 5 February 2017 entered by PP‑1 with Uttar Pradesh Waste Management Project (a division of Ramky Enviro Engineers Ltd.) to provide service for transport, treatment, storage and disposal of hazardous waste to the PP‑1 unit., For collection and recycling of plastic waste, PP‑1 entered into an agreement with IFP Petro Products Pvt. Ltd., 16/2, C Industrial Area, Site IV, Sahibabad, Ghaziabad on 1 July 2020, with a tenure of one year valid up to 30 June 2021. Earlier PP‑1 had a similar agreement dated 1 July 2019 with GEM Enviro Management Pvt. Ltd., valid for twelve months., The NOC issued by the Central Ground Water Authority dated 28 September 2015 to PP‑1 shows that it was a renewal of an earlier NOC granted vide letter dated 5 July 2013. The 28 September 2015 NOC allowed PP‑1 to abstract 1,693 cubic metres per day (not exceeding 507,300 cubic metres per year) of ground water through three existing tube‑wells. PP‑1 was also required to implement ground water recharge measures of 204,042 cubic metres per year in consultation with the Regional Director, Central Ground Water Board, Northern Region, Lucknow., The report mentions the location of the PP‑1 unit as Bisrakh Block, but the parties agreed that this is a mistake and the PP‑1 unit is at Dadri Block., The Joint Committee inspection report for PP‑3 (page 93) shows that the inspection was made on 26 August 2020. The conclusions and recommendations are: the unit manufactures soft drink wherein ground water is the main raw material; the unit is located in Bisrakh Block of Gautam Buddha Nagar, which falls under the over‑exploited category as per the Ground Water Resource Assessment 2017 of the Central Ground Water Board; since January 2020, the unit has been extracting ground water without any NOC from the Central Ground Water Authority; during the visit the unit was found partially operational and not at its optimum capacity; the Effluent Treatment Plant has an EPR registration certificate issued by the Central Pollution Control Board vide letter dated 14 August 2020 under the Plastic Waste Management Rules, 2016 as amended 2018. The Committee recommended: (1) the unit shall obtain an NOC from the Central Ground Water Authority for the abstraction of ground water, which expired on 2 January 2020; (2) the unit shall remove the floating sludge from the secondary clarifier; (3) the unit shall renew the agreement with the plastic waste recycler for collection and recycling of plastic waste., The report includes an appendix containing a copy of the consent order dated 4 February 2019 issued to PP‑3 under Section 25/26 of the Water Act, 1974 by the Uttar Pradesh Pollution Control Board, valid for 1 January 2019 to 31 December 2020, and a consent order dated 4 February 2019 issued under Section 21/22 of the Air Act, 1981 valid for the same period. The Uttar Pradesh Pollution Control Board also issued an authorization letter dated 19 June 2018 under the provisions of the Hazardous and Other Wastes (Management and Transboundary Movement) Rules, 2016 for generation, collection, utilization, storage and disposal of hazardous or other wastes in its unit., PP‑3 was also issued a Registration Certificate for Brand Owner by the Central Pollution Control Board under Rule 13(2) of the Plastic Waste Management Rules, 2016 as amended, from time to time., PP‑3 entered into an agreement dated 18 July 2019 with GEM Enviro Management Private Limited for providing service of plastic waste collection and recycling. The agreement was valid for twelve months commencing from 1 August 2019., PP‑3 was also issued an NOC dated 31 January 2018 by the Central Ground Water Authority, permitting abstraction of 1,163 cubic metres per day for 261 days (not exceeding 303,543 cubic metres per year) of ground water through an existing tube‑well. It was required to implement ground water recharge measures of at least 608,000 cubic metres per year for augmenting ground water resources of the area within six months from the date of issue of the letter, i.e., 31 January 2018., Both PP‑1 and PP‑3 are classified as red‑category industries as per the Central Pollution Control Board categorization; PP‑2 is also in the same red category., The Joint Committee’s report in respect of PP‑1 and PP‑3, as well as the reply of the Central Ground Water Authority, was considered by the Tribunal on 2 December 2020. After noticing the conclusions and recommendations, the Tribunal, in an order dated 2 December 2020, stated: In view of the above, action by way of stopping the illegal activities and recovering compensation for the violation as per laid down norms needs to be expeditiously taken, following the process of law. Since the Central Ground Water Authority has not initiated any action, the Central Pollution Control Board and the State Pollution Control Board may take further action. The State Pollution Control Board will be the nodal agency for coordination and compliance. A factual and action‑taken report may be furnished to this Tribunal before the next date by e‑mail at judicial‑ngt@gov.in preferably in the form of searchable PDF/OCR Support PDF and not in the form of Image PDF., Pursuant to the above order, another report was submitted by the Joint Committee through the Regional Officer, Uttar Pradesh Pollution Control Board, Greater Noida, along with its letter dated 8 April 2021, after inspecting PP‑1 and PP‑3 units on 31 March 2021. Regarding extraction of ground water after expiry of the NOC granted by the Central Ground Water Authority, both PP‑1 and PP‑3 submitted applications for NOC renewal within time and before expiry of the NOC. The applications could not be processed due to the Tribunal order and procedural delay. In the meantime, the Uttar Pradesh Ground Water (Management and Regulation) Act, 2019 was promulgated. Both units thereafter applied for online registration of their borewells under the provisions of the Uttar Pradesh Ground Water (Management and Regulation) Act, 2019. The registration of applications was accorded by the District Ground Water Management Council. Both units then applied online for issue of NOC from the Uttar Pradesh Ground Water Department. Since the units are in a notified area, in compliance with the order dated 3 February 2021 of the Member Secretary, State Ground Water Management and Regulatory Authority, the applications were forwarded to the Uttar Pradesh Ground Water Department, Lucknow for approval of NOC. The Uttar Pradesh Ground Water Department has approved NOC to both units from the date of expiry of the last NOC up to five years onwards, though the actual NOC has not yet been issued to the units., The Committee recorded that the units have complied with all recommendations except obtaining an NOC from the Central Ground Water Authority for groundwater abstraction. It observed that the units applied for renewal of their NOC before expiry and that the Central Ground Water Authority forwarded the applications to the State Ground Water Department for further action. The Uttar Pradesh Pollution Control Board asked the Central Ground Water Authority and the Uttar Pradesh Ground Water Department for comments regarding the action‑taken report concerning withdrawal of groundwater without a valid NOC. The reply from the Uttar Pradesh Ground Water Department indicated that the units applied for renewal before expiry, the borewells have been registered, and NOC has been approved for five years from the last expiry date and shall be issued shortly with certain conditions and abstraction charges. The guideline issued by the Ministry of Jal Shakti, Government of India states that if the application for renewal is submitted in time and the Central Ground Water Authority or the respective State/UT Authority is unable to process the application in time, the NOC shall be deemed to be extended till the date of renewal. If the proponent fails to apply for renewal within three months from the date of expiry of the NOC, the proponent shall be liable to pay Environmental Compensation for the period starting from the expiry date until the NOC is renewed by the competent authority. Both units have applied to the Central Ground Water Authority before expiry of the last NOC and also applied to the Uttar Pradesh Ground Water Department/State Authority for registration of borewells and NOC for withdrawal of groundwater; the borewells have been registered, however the NOC is yet to be issued. Both units are abstracting groundwater without paying any abstraction fees or withdrawal charges. Therefore, both units may be levied groundwater abstraction charges calculated from the expiry date of their NOC by the Uttar Pradesh Ground Water Department as per over‑exploited area charges and NOC conditions may be fixed in accordance with the notified Ground Water Act and Rules., It is evident from the Joint Committee’s report that the Uttar Pradesh Pollution Control Board issued notices dated 21 December 2020 and 22 February 2021 to PP‑1 and PP‑2 respectively. Replies dated 9 February 2021 and 24 March 2021 were submitted by them and considered by the Committee. Similarly, the Uttar Pradesh Pollution Control Board issued a notice dated 21 December 2020 to PP‑3, which submitted replies dated 11 January 2021 and 13 March 2021., The Uttar Pradesh Pollution Control Board also sent letters dated 22 January 2021 and 22 February 2021 to the Central Ground Water Board, Lucknow, enquiring about the action taken in respect of PP‑1 and PP‑3. Letters dated 25 February 2021, 9 March 2021 and 26 March 2021 were issued by the Uttar Pradesh Pollution Control Board to the Uttar Pradesh Ground Water Department, Gautam Buddha Nagar, enquiring about the action‑taken report. Pursuant to these letters, the Uttar Pradesh Ground Water Department replied by letter dated 16 March 2021, stating that both units submitted their NOC renewal applications within time before expiry, but due to the Honourable National Green Tribunal order and procedural delay, the Ground Water Department could not process the applications in time and NOC could not be issued. After promulgation of the State Ground Water Act, 2019, both units applied online for registration of their borewells, which was accorded by the District Ground Water Council. After registration, the units applied online for issuance of NOC from the Uttar Pradesh Ground Water Department. Being in a notified area and in compliance with the order dated 3 February 2021 of the Member Secretary, State Ground Water Management & Regulatory Authority, the applications were forwarded to the Uttar Pradesh Ground Water Department, Lucknow for approval of NOC., The Uttar Pradesh Ground Water Department, Lucknow issued a letter dated 1 April 2021 to the District Magistrate, Gautam Buddha Nagar/Chairman, District Ground Water Management Council informing that it has approved NOC of both units from the date of expiry of the last NOC up to five years onwards., The matter was heard by the Tribunal on 1 July 2021, wherein the Uttar Pradesh Pollution Control Board report dated 8 April 2021 was also considered. The Uttar Pradesh Pollution Control Board stated that NOC for extraction of ground water stood granted retrospectively to the project proponents by the Uttar Pradesh Ground Water Department under the provisions of the Uttar Pradesh Ground Water (Management and Regulation) Act, 2019. The Tribunal found that the power to grant NOC with retrospective effect, when the regulatory authority under the Uttar Pradesh Ground Water (Management and Regulation) Act, 2019 was not constituted, and also against the directions issued under Section 5 of the Environmental Protection Act, 1986, could not have been exercised by the Uttar Pradesh Ground Water Department. Moreover, no contrary action inconsistent with guidelines issued by the Central Ground Water Authority could have been taken by State authorities and the alleged retrospective NOCs are prima facie again in conflict with the regulatory regime envisaged in the Supreme Court judgment in M. C. Mehta versus Union of India (1997) 11 SCC 312 and the Tribunal’s order dated 20 July 2020 in OA 176/2015., The learned counsels also brought to the Tribunal’s notice that revised guidelines were issued on 24 September 2020 by the Ministry of Jal Shakti, but the validity thereof is the subject of challenge in Appeal No. 45/2020 (Devidas Khatri versus Union of India & Others). The Tribunal, after considering the Joint Committee’s report, observed that statutory regulators are obliged to revise the regulatory regime so as to bring it in line with the sustainable development principle enshrined by the Supreme Court and the Tribunal in various judgments, and should take remedial action. However, no such action was taken by the regulators., Considering the above circumstances and all other aspects, the Tribunal found that the proponents need to be issued notices so that the Tribunal may have the benefit of their stand before adjudication of the issues raised, particularly since they are the likely affected parties., The issue of the validity of the notification dated 24 September 2020 was pending consideration in another matter; therefore, this application was directed to be listed along with other matters and notice to be issued to the concerned parties including the Uttar Pradesh Ground Water Authority, Central Pollution Control Board and the Ministry of Jal Shakti. Accordingly, an order was passed on 31 August 2021 issuing notices to the above parties., The matter was heard on 1 July 2021 in light of the further report of the State Pollution Control Board dated 8 April 2021 to the effect that NOC for extraction of ground water stands granted retrospectively to the project proponents by the Uttar Pradesh Ground Water Department. The applicant has pressed action for violations on the ground that such NOC is against the regulatory regime envisaged in the judgment of the Honourable Supreme Court in M. C. Mehta versus Union of India (1997) 11 SCC 312 and the Tribunal’s order dated 20 July 2020 in OA 176/2015. It is pointed out that the notification of the Ministry of Jal Shakti dated 24 September 2020 on the subject of ground water extraction is the subject matter of challenge before this Tribunal in OA 218/2020 (later converted to Appeal No. 45/2020). Thus, the project proponents are liable to be held accountable for illegal extraction of ground water and the authorities are required to revise the regulatory regime so as to be brought in line with the sustainable development principle, as laid down by the Supreme Court and this Tribunal in the said judgments. The Tribunal reserved order on 1 July 2021., On due consideration, the Tribunal found it appropriate to hear the matter on 8 November 2021 along with other connected matters. The registry of the Tribunal shall send notice of these proceedings by email to the concerned project proponents, Uttar Pradesh Ground Water Department, Central Pollution Control Board and the Ministry of Jal Shakti. The State Pollution Control Board may also serve such notice. The parties may file their response, if any, within one month. The State Pollution Control Board may also make available a paper book of the matter to them by email., Notices have been served and received by the project proponents as well as the authorities to whom notices were directed by the order dated 31 August 2021. Respondents 1 and 2 filed their reply dated 22 November 2021 and respondent 3 filed a separate reply dated 29 October 2021., Respondents 1 and 2, in general, denied the allegations made by the applicant in the Original Application. The photographs appended to the OA, said to have been taken on 14 March 2020, are disputed. It is also stated that the industrial unit at Ghaziabad (PP‑2) has been permanently closed for industrial operations from 9 August 2020; all industrial equipment including the Effluent Treatment Plant have been dismantled; and the premises have been converted into a corporate office with no industrial discharge taking place. While the unit was functioning at Ghaziabad, the installed ETP was sufficient to meet the requirement of treating polluted effluent. PP‑2 never discharged any untreated effluent into drain, which was verified by statutory authorities during various inspections. The photographs placed on record by the applicant appear to be of some other site and are falsely claimed as belonging to the premises of respondents 1 and 2. Respondents 1 and 2 belong to a company that has been working for the last 34 years maintaining the highest standards of professional and business ethics and functioning in conformity with environmental norms., Details of the industries: For PP‑2 (unit at Ghaziabad) – consent order dated 10 February 2020 under Section 25/26 of the Water Act, 1974 valid from 1 January 2020 to 31 December 2021; consent order dated 10 February 2020 under Section 21/22 of the Air Act, 1981 valid for the same period. For PP‑1 (unit at Greater Gautam Buddha Nagar) – consent order dated 9 February 2020 under Section 25/26 of the Water Act, 1974 valid from 1 January 2020 to 31 December 2021; consent order dated 9 February 2020 under Section 21/22 of the Air Act, 1981 valid for the same period; consent order dated 20 July 2021 under Section 25/26 of the Water Act, 1974 valid from 6 July 2021 to 31 December 2022; consent order dated 20 July 2021 under Section 21/22 of the Air Act, 1981 valid from 6 July 2021 to 31 December 2022.
id_481	1	The conditions of consent issued in respect of PP-2 show that it was allowed to discharge domestic effluent up to 25 kilolitres per day (KL/day) from a sewage treatment plant (STP) and industrial effluent up to 350 KL/day from an effluent treatment plant (ETP). In respect of PP-1, the permitted discharge for domestic effluent was 18 KL/day from an STP and 496 KL/day for industrial purpose from an ETP. In the renewal order, the discharge quantities remained unaltered., It is pleaded that PP-1 had an ETP with a capacity of 560 KL/day while the maximum discharge permitted was only 496 KL/day; therefore there was no occasion of discharge of untreated effluent by PP-1., Respondents 1 and 2 have admitted that the premises at Greater Noida were visited by a joint committee comprising the Central Pollution Control Board, Uttar Pradesh Pollution Control Board and Uttar Pradesh Ground Water Department on 26 August 2020 and made recommendations. The recommendations included directions to PP-1 to obtain a No Objection Certificate (NOC) from the Central Ground Water Authority for extraction of groundwater, which had expired on 28 September 2018; to install water meters at the source (bore wells) and maintain a log‑book record. PP-1 claimed to have complied by installing an environmental display board at the main entrance and ensuring that data is regularly displayed and updated daily. PP-1 is also handling its plastic waste in a proper manner having executed an agreement with M/s. GEM Enviro Management Private Limited dated 1 July 2019. Based on the joint committee recommendations, PP-1 applied for certification under the Pollution Water Management Rules, 2016 and the certificate was issued by the Central Pollution Control Board on 12 February 2021., Respondent 1 (PP-1) further stated that it had installed water meters on the pipelines of bore wells at the process section, which were operational at the time of inspection. Later, on the recommendations of the joint committee, water meters were installed on the bore wells and are being maintained diligently with entries in log books. PP-1 had installed an online continuous emission monitoring system at the ETP. These compliances were completed by March 2021 and a compliance letter was sent to the Regional Officer, Uttar Pradesh Pollution Control Board, Greater Noida on 24 March 2021. Another letter dated 9 October 2021 giving a reply with regard to compliance is also placed on record., With regard to the NOC from the Central Ground Water Authority, an online application for renewal of the NOC, which was due to expire on 28 September 2018, was submitted on 12 September 2018 and the hard copy was submitted on 13 September 2018. The application is still pending. A similar application on behalf of PP-2 was submitted on 22 September 2018. On 24 September 2018, the Ministry of Jal Shakti issued a notification superseding the earlier notification dated 12 December 2018, laying down guidelines to regulate and control groundwater abstraction in India. Paragraph 11(vi) of the guidelines provides that if an application for renewal is submitted in time and the competent authority is unable to process it in time, the NOC shall be deemed extended till the date of renewal of the NOC; therefore, PP-1 and PP-2 cannot be said to have extracted groundwater unauthorizedly. The joint committee inspection report dated 31 March 2021 mentions these facts and notes that subsequently an NOC was granted by the Uttar Pradesh Ground Water Department for five years. The Uttar Pradesh Ground Water Department issued NOC No. NOC040006 under Section 14 of the Uttar Pradesh Ground Water Act, 2019, valid from 28 September 2018 to 27 September 2023, and a copy of the certificate issued in respect of PP-1 has been placed on record as annexure R‑15., The said certificate permits abstraction of 75 cubic metres per hour of groundwater and the bore well is allowed to run for a maximum of eight hours per day. PP-1 has paid Rs 24,30,000 as groundwater abstraction charges to the Uttar Pradesh Ground Water Department before the issue of the NOC. Respondents 1 and 2 have also placed on record NOCs No. NOC044168 and NOC043702, registering sinking of new/existing wells for industrial bulk users of groundwater, issued under Section 14 of the Uttar Pradesh Ground Water Management Rules, 2019, collectively as annexure R‑15. Both documents show that PP-1 submitted applications to the Uttar Pradesh Ground Water Department on 9 February 2021 and 11 February 2021, respectively., Respondents 1 and 2 have claimed that water is critical to their business and also integral to community needs; therefore, PP-1 and PP-2 have a shared interest in the sustainability of water resources. They strive to use water judiciously and responsibly and have been organizing various workshops and seminars for spreading awareness regarding the preservation of water among the public., Respondent 3, Varun Beverages Ltd., was incorporated in 1995 and is presently the second largest franchisee owner and distributor of carbonated soft drinks and non‑carbonated beverages sold under trademarks owned by PepsiCo. The unit is located at Plot No. 2E, Ecotech III, Udyog Kendra, Greater Noida (Village Tusyana, Block Bisrakh), District Gautam Buddha, Uttar Pradesh. The company set up a state‑of‑the‑art, highly automated manufacturing unit in 2013 after obtaining requisite permissions and approvals from the concerned local authorities and has earned several certificates of recognition. With regard to environmental laws, a consent order under Sections 25/26 of the Water (Prevention and Control of Pollution) Act, 1974, was issued on 1 March 2021 for the period 1 January 2021 to 31 December 2022. The permitted effluent discharge details are: Domestic – 10 KL/day via a septic tank; Industrial – 568 KL/day via an effluent treatment plant. A recent consent order issued under Sections 21/22 of the Air (Prevention and Control of Pollution) Act, 1981, dated 2 March 2021, is valid for the same period. PP‑3 (respondent 3) is complying with all environmental norms and the compliance report submitted to the Uttar Pradesh Pollution Control Board on 19 April 2021 is filed as annexure R3/4. PP‑3 has also obtained authorization under the Hazardous Waste Management and Treatment Measures Rules, 2016, and the latest one issued on 19 June 2018 is valid up to 18 June 2023 (annexure R3/5, P/325)., Regarding groundwater extraction, respondent 3 has stated that it is abstracting groundwater from three bore wells installed at the site, for which an NOC was issued by the Central Ground Water Authority on 31 January 2018 (annexure R3/6, P/329), permitting abstraction of 1,163 cubic metres per day for 261 days but not exceeding 303,543 cubic metres per year. The validity period of the NOC was two years, i.e., 3 January 2018 to 2 January 2020. Respondent 3 also submitted a compliance report dated 17 November 2018 (annexure R3/9, P/335). It has complied with the condition of recharge measures; a report on page 352 shows that the rainwater harvesting system is capable of providing 13,833.26 cubic metres of water per year. Additionally, respondent 3 has adopted 13 ponds in nearby villages. The details of khasra numbers and area are: Chithera (3 ponds) – 0.696 ha; Bhola Rawal (31K) – 0.177 ha; Rajatpur (3 ponds) – 1.783 ha; Ajayabpur (1 pond) – 1.143 ha; Maycha (1 pond) – 4.11 ha; total area covered – 20.72 ha. The potential recharge of groundwater from the above ponds is estimated at 622,680 cubic metres per year., Respondent 3 submitted an online application dated 19 November 2019 for renewal of the NOC for groundwater extraction. Since no action was taken by the Central Ground Water Authority, respondent 3 sent a reminder on 21 July 2020. The Ministry of Jal Shakti issued a notification dated 24 September 2020 notifying guidelines to control and regulate groundwater abstraction in India, and paragraph 11(vi) thereof stated that an application for renewal submitted before expiry, if not processed in time, will result in deemed extension till renewal is granted. Around November 2020, the Central Ground Water Authority notified through its website that it had stopped processing applications for renewal of NOCs because the Uttar Pradesh Government had started its own online portal for such purposes. The Uttar Pradesh Ground Water Department portal became functional in January 2021 and published guidelines for processing applications under the Uttar Pradesh Ground Water Management Rules, 2019, on 2 March 2021. Respondent 3 thereafter submitted applications for registration of wells 1, 2 and 3 on 9 January 2021, 19 January 2021 and 19 January 2021, respectively, and applications for NOCs on 9 January 2021, 10 February 2021 and 10 February 2021, respectively. The Uttar Pradesh Ground Water Department issued registration certificates dated 31 March 2021 (page 419). Respondent 3 received a notice dated 21 December 2020 from the Uttar Pradesh Pollution Control Board seeking point‑wise compliance, which was responded to by respondent 3 via a letter dated 11 January 2021 stating that it had already applied for renewal and had removed floating sludge from the secondary clarifier. Another notice dated 22 February 2021 was issued by the Uttar Pradesh Pollution Control Board, stating that since no NOC for groundwater extraction had been received, extraction should be stopped immediately and PP‑3 should show cause why compensation may not be determined. PP‑3 submitted a reply dated 13 March 2021 stating that the application for NOC had already been submitted and was pending processing, and since renewal was applied for before expiry, it could not be said to have violated environmental norms by continuing abstraction of groundwater., The Director of the Uttar Pradesh Ground Water Department issued a letter dated 1 April 2021 addressed to the District Water Management Committee through its Chairman (District Magistrate, Gautam Buddha Nagar), supplying a list of about 40 applications recommending grant of renewal of NOCs, which included respondent 3 at serial numbers 26, 27 and 28. Groundwater abstraction charges/withdrawal charges were computed and NOCs No. NOC034614, NOC039693 and NOC035952 were issued. Respondent 3 also prepared a Water Audit Report (WAR) and Impact Assessment Report (IAR). The water audit shows that abstraction of groundwater has periodically reduced as follows: permitted quantity – 262,610 cubic metres per year; extraction in 2018 – 159,898 cubic metres per year; extraction in 2019 – 39 cubic metres per year. WAR also suggests nine additional water‑saving techniques which have been implemented by respondent 3. The IAR records conclusions: (1) Varun Beverages recharges the tune of 65,647.3 cubic metres of annually collected rainfall; (2) effectiveness of the recharge system is visible in the plant premises; (3) the result of the recharge is that the groundwater level is in a rising trend in and around the project location. The impact assessment report further states that present status and extraction of groundwater in the project premises would not affect the potential and depletion of water level in surrounding areas because the industrial area is not available within a 5 km buffer zone and rainwater harvesting measures have been taken for groundwater recharge., With regard to compliance of the recommendations made by the joint committee, respondent 3 stated that it has complied with those directions as detailed in paragraphs 17 to 21 of the reply. Thereafter, a paragraph‑wise reply reiterates the facts and denies the allegations made against respondent 3 by the applicant. Respondent 3 has also placed on record copies of challans dated 7 June 2021 depositing Rs 391,500, Rs 861,300 and Rs 365,400 towards groundwater extraction charges and copies of NOCs issued on 18 June 2021, collectively annexure R3/31, valid for the period 3 January 2020 to 2 January 2025., Thus, the substantial issue in the original application is that the units of PP‑1, PP‑2 and PP‑3 are situated in over‑exploited, notified or severely critical areas and therefore could not have been allowed to abstract groundwater; any permission granted by regulators is wholly illegal. The abstraction has contaminated groundwater and caused severe irreparable damage to the environment. Once the NOC issued by the Central Ground Water Authority expired, renewal could not have been allowed retroactively, and consequently the polluting parties are liable to pay environmental compensation for illegal groundwater abstraction. The respondent authorities, in justifying non‑imposition of compensation, have acted illegally. Continued operation of the polluting parties in groundwater extraction in over‑exploited or critical areas amounts to denial of potable drinking water to the inhabitants and denies them the fundamental right to water, which is necessary for the exercise of the right to life under Article 21 of the Constitution of India., Appeal No. 45/2020, Devidas Khatri vs. Union of India & Others (earlier OA No. 218/2020). Devidas Khatri filed an application under Sections 14, 15 and 18(1) of the National Green Tribunal Act, 2010, claiming that the notification dated 24 September 2020 violates the mandate of the Supreme Court whereby the Central Ground Water Authority was constituted under the Environmental Protection Act, 1986 and also does not comply with the directions issued by this Tribunal on 20 July 2020 in OA 176/2015. The appellant impleaded the Ministry of Environment, Forest and Climate Change; the Ministry of Jal Shakti; the Central Ground Water Authority through its Chairman as well as its Member Secretary as respondents. The appellant pleaded that the Central Ground Water Authority is permitting abstraction of groundwater in areas where groundwater has seriously depleted, by permitting constant exploitation by industries without any proper recharge mechanism. The substantial questions relating to the environment arising out of implementation of the Acts in Schedule I of the National Green Tribunal Act, 2010, are: (1) Whether the respondents are under an obligation to protect and improve the quality of the environment and prevent illegal, unsustainable and unscientific extraction of groundwater resources, in accordance with the laws and regulations laid down in the Acts specified in Schedule I of the National Green Tribunal Act, 2010? (2) Whether proper safeguards/steps have been undertaken by the concerned authorities as per the policy dated 24 September 2020 to recharge, control and prevent illegal and unsustainable extraction of groundwater by way of the guidelines of the Central Ground Water Authority published in Gazette Notification dated 24 September 2020? (3) Whether an effective recharge mechanism has been put in place to restore unabated and uncontrolled extraction of groundwater? (4) Whether, without any recharge mechanism for groundwater, any extraction and exploitation of groundwater may be allowed without undertaking any cumulative impact assessment study and carrying capacity study in the concerned region?, The Central Ground Water Authority was constituted by notification dated 14 January 1997 and its main objective was to regulate and control the development and management of groundwater resources in the country. However, steps taken by the Authority for conservation of groundwater were only cosmetic and on paper; no concrete steps were taken for conservation. The Authority laid down certain guidelines by notification dated 15 November 2012, which were substituted by guidelines published on 16 November 2015. The revised guidelines in 2013 were issued pursuant to the Tribunal's order dated 15 April 2015 in OA 204/2015, Krishan Kant Singh vs. M/s. Deoria Paper Ltd. Later, to facilitate various industries, the earlier policy was modified by another policy published on 12 December 2018. The said policy was considered by the Tribunal in OA 176/2015, wherein an order was passed on 3 January 2019 directing authorities not to give effect to the 2018 notification. The Tribunal directed the Ministry of Environment, Forest and Climate Change to constitute an Expert Committee and issue fresh guidelines; since the order was not complied, the Tribunal issued directions again on 20 July 2020. Without taking effective steps as directed by the Tribunal and without complying with the directions, almost similar guidelines were issued by notification dated 24 September 2020, showing that the Authority is adamant to implement its old policy of 2018. The 2020 notification permitted micro and small enterprises (MSME) drawing groundwater less than 10 cubic metres per day as well as bulk water supply; all private tankers are also allowed to abstract groundwater. The Authority has not calculated the carrying capacity of the area to date; with regard to extraction charges, the Tribunal had made adverse comments but the same has also not been given due regard. The respondents have failed to frame a proper and valid policy for groundwater recharge mechanism and to check depletion of groundwater level in the country; the policy is in violation of the Environmental Protection Act, 1986 as also the law laid down by the Supreme Court in M.C. Mehta and the observations and directions given by this Tribunal., The original application was taken up by the Tribunal on 9 October 2020 and after noticing the contentions in brief and the fact that the order in question was appealable under Section 16(g) of the National Green Tribunal Act, 2010, the Tribunal directed that this application be registered as an appeal under Section 16(g) and issued notices to the Ministry of Jal Shakti. The Central Pollution Control Board was also added as a party suo motu by the Tribunal, and notice was issued to the Central Pollution Control Board., The Central Pollution Control Board filed a response. It stated that the questions raised by the appellant were examined and comments were prepared. Further, the draft National Water Policy 2020 was also debated and comments were provided to the Ministry of Jal Shakti by letter dated 13 October 2020. Subsequently, the Model Ground Water (Sustainable Management) Bill 2020 was circulated by the Central Ground Water Authority to the Central Pollution Control Board, which was also reviewed and comments were submitted; the matter is now under active consideration. The short reply of the Central Pollution Control Board reads: The Honorable National Green Tribunal (Principal Bench) issued an order dated 9 October 2020 in the matter of OA No. 218/2020 (Devidas Khatri vs. Union of India & Others) and directed in paragraph 7 that there are arguable points raised in the appeal which will require reconsideration. The appeal is admitted. Issue notice to the Ministry of Jal Shakti. The Central Pollution Control Board may need to be heard in the matter though it has not been included in the respondents list. The Central Pollution Control Board is accordingly added as a party suo motu. Notice be issued to the Central Pollution Control Board also. The appellant may serve notices with a complete set of papers and file an affidavit of service within one week. The response may be filed within six weeks from today by email at judicialngt@gov.in. In compliance with the Honorable NGT order dated 9 October 2020, the guidelines notified by the Ministry of Jal Shakti on 24 September 2020 to regulate and control groundwater extraction in India were reviewed by the Central Pollution Control Board. Questions raised in the petition by the applicant relating to groundwater protection and conservation from points (1) to (5) were examined. A comparative analysis of the guidelines notified on 24 September 2020 and the questions raised by the applicant was done. Views/comments of the Central Pollution Control Board are prepared based on the comparative analysis. Detailed comments/views on the guidelines of 24 September 2020 are given at Annexure I. The Central Pollution Control Board has reviewed the Draft National Water Policy, 2020 circulated by the Department of Water Resources, Ministry of Jal Shakti. A presentation was given by the Central Pollution Control Board before the drafting committee through a video conference held on 30 September 2020 wherein relevant points were also debated. Comments on the draft National Water Policy, 2020 were provided to the Ministry of Jal Shakti by letter dated 13 October 2020. The Model Ground Water (Sustainable Management) Bill, 2020 circulated by the Central Ground Water Authority, Ministry of Jal Shakti to the Central Pollution Control Board was also reviewed and comments were provided on concerns related to groundwater use. The draft policy on safe reuse of used water is under review. The policy document was debated amongst stakeholder organisations on 11 November 2020 and is under the process of finalisation by the Ministry of Jal Shakti. The issue of groundwater is being addressed by the Union Government through the actions cited above. It is anticipated that the actions proposed will yield positive results and the goals set for sustainable management of groundwater will be met., The Ministry of Jal Shakti and the Central Ground Water Authority responded that water management plans prepared by all State Ground Water Authorities/Organizations for all over‑exploited, critical and semi‑critical assessment units are to be considered while granting NOCs to users. Since rainfall and type of aquifers vary widely across the country, a uniform implementable recharge mechanism is difficult to frame. However, the Government of India constituted a Committee that prepared a Master Plan for Artificial Recharge to Ground Water‑2013, which envisages construction of about 1.11 crore recharge structures in urban and rural areas. This plan is placed on the website of the Central Ground Water Board and circulated to State Governments and all members of Parliament. For implementation in states, the Central Ground Water Board has prepared a manual and subsequently a guide on artificial recharge to groundwater, providing guidelines on investigation techniques for site selection, planning and design of artificial recharge structures, economic evaluation and monitoring of recharge facilities. These are of immense use to states and union territories in planning and implementing recharge schemes for augmentation of groundwater. To check depleting water levels and augment water resources, the Central Ground Water Board has implemented demonstrative artificial recharge projects during the Fifth, Ninth, Tenth and Eleventh Five‑Year Plans, resulting in annual replenishment of groundwater resources of about 4.0, 45.0, 2.14 and 55.20 million cubic metres respectively. A Master Recharge Plan (2020) has also been finalised by the Central Ground Water Authority, envisaging construction of 1.41 crore recharge structures in urban and rural areas, to be implemented through various central and state government schemes. All safeguards for protection of the environment while carrying out groundwater activities have been taken into account in the new guidelines. The petitioner, through this application, is targeting industries but ignoring the fact that the livelihood of millions of workers depends on these industries and economic development needs to be balanced, especially during the COVID‑19 pandemic. The Supreme Court in Vellore Citizens Welfare Forum vs. Union of India (1996) held that sustainable development as a balancing concept between ecology and development has been accepted as part of customary international law. The principles of sustainable development, i.e., the precautionary principle and the polluter pays principle, have already been taken into consideration while framing the new guidelines. The obligation to protect and improve the quality of the environment is a collective responsibility of the State and the citizens. Violations, if any, under the enactments in Schedule I are to be monitored, checked and controlled by concerned statutory bodies such as pollution control boards, pollution control committees, district administration, civic/municipal bodies, concerned state government departments and central government departments. The policy of the Central Government to regulate groundwater development and management has been notified under the orders of this Tribunal. The policy notified in September 2020 is being challenged in October 2020 by the appellant, who indicates that he does not want any policy on groundwater to remain in force. New guidelines have been formulated after extensive deliberations and consultations with various stakeholders to provide effective regulation and sustainable management of groundwater. Effective recharge mechanisms with directions to industries, projects, government departments and citizens at large are in place. When compliance failure is reported or brought to the notice of public authorities and courts, corrective measures are being taken. The new guidelines also incorporate recommendations of the Committee constituted by the Tribunal in Shailesh Singh (supra) dated 11 September 2019. The guidelines dated 24 September 2020 were formulated by the Ministry of Jal Shakti with due regard to the Tribunal's orders dated 20 July 2020. The notification dated 12 December 2018 of the Central Ground Water Authority, the report of the Expert Committee filed by the Ministry of Environment, Forest and Climate Change on 18 July 2019 and the report dated 26 June 2019 of the Central Pollution Control Board were filed before the Tribunal. After a series of meetings and consultations with various stakeholders, the guidelines were re‑framed and notified with the approval of the competent authority for sustainable management of water resources in the country. The policy has been placed on the website for wider compliance. The new guidelines place high focus on reducing dependence on groundwater and promoting sustainable use of water. The guidelines provide that all new/existing industries, industries seeking expansion, infrastructure projects and mining projects abstracting groundwater, unless specifically exempted, will be required to seek NOC from the Central Ground Water Authority or the concerned State/UT Ground Water Authority as the case may be. Availability of groundwater resources shall be given due regard while considering applications for grant of NOC for commercial use to avoid over‑extraction. The duration of NOC for each type of user has been specified in the guidelines. For the agricultural sector, a participatory approach for sustainable groundwater management is encouraged. States/UTs are advised to review their free/subsidised electricity policy to farmers, bring suitable water pricing policy and work towards crop rotation, diversification and other initiatives to reduce over‑dependence on groundwater. The guidelines provide that for drinking and domestic use for residential apartments, group housing societies and government supply agencies in urban areas, NOC for new/existing wells shall be granted only where the local government water supply agency is unable to supply the requisite amount of water. NOC shall be granted subject to mandatory installation of sewage treatment plants by all new residential apartments/group housing societies where groundwater requirement exceeds 20 cubic metres per day; water from sewage treatment plants shall be utilised for toilet flushing, car washing, gardening, etc. Section 4 of the guidelines provides that no new major industries shall be granted NOC in over‑exploited assessment areas except as per the policy guidelines. All industries shall be required to adopt the latest water‑efficient technologies to reduce dependence on groundwater resources. NOC shall be granted only where local government water supply agencies are unable to supply the desired water. Injection of treated or untreated wastewater into aquifer systems is strictly prohibited. Expansion of existing industries involving increase in the quantum of groundwater abstraction in over‑exploited assessment units shall not be permitted. NOC shall not be granted to new packaged water industries in over‑exploited areas, even if they belong to the MSME category. Annexure III provides detailed measures to be adopted to ensure prevention of pollution in the plant premises of polluting industries/projects. For mining projects, the new guidelines provide that all existing as well as new mining projects will be required to obtain NOC for groundwater abstraction. It shall be mandatory for all mining industries to ensure that water obtained from de‑watering operations is properly treated and used for irrigation, dust suppression, mining processes, recharge downstream and for maintaining environmental flows in river systems, and to construct observation wells along the periphery of the premises. All mining units shall monitor water quality of mine seepage and mine discharge through NABL‑accredited or government‑approved laboratories and submit the reports at the time of self‑compliance. In the new guidelines, no NOC shall be granted for extraction of groundwater for water parks, theme parks and amusement parks in over‑exploited assessment units. New as well as existing infrastructure projects shall also be required to seek NOC for abstraction of groundwater. In over‑exploited assessment units, use of groundwater for construction activity shall be permitted only if no treated sewage water is available within a 10 km radius of the site. Section 6 of the new guidelines provides that all private tankers abstracting groundwater and using it for supply as bulk water suppliers will now mandatorily seek NOC for groundwater abstraction. The guidelines have been improved and the categories of consumers exempted from seeking NOC for groundwater extraction have been re‑framed to include: (i) individual domestic consumers in both rural and urban areas for drinking water and domestic uses; (ii) rural drinking water supply schemes; (iii) armed forces establishments and central armed police forces establishments in both rural and urban areas.
id_481	2	Micro and small enterprises drawing nominal ground water less than 10 cubic metres per day have been exempted to promote and motivate small businesses for boosting economic development of the country. Small quantity fixed (i.e., less than 10 kilolitres per day) will not affect overall ground water scenario in a particular area. The Central Government has also been emphasizing the need to encourage such businesses, especially during the ongoing Covid‑19 crisis., In pursuance of the recommendations by the Committee constituted by the Tribunal and to strengthen the institutional mechanism, various provisions have been incorporated in the new guidelines. In over‑exploited assessment units, a No Objection Certificate shall not be granted for ground water abstraction to any new industry. According to Sections 10 and 13, various functions have been assigned to authorities such as District Collectors, Deputy Commissioners and District Magistrates and the Central Ground Water Authority against illegal ground water withdrawal. These authorities are authorized to take enforcement measures like sealing of unauthorized ground water abstraction structures, disconnection of electricity, launching prosecution against violators of No Objection Certificate conditions and imposing environmental compensation. Technical officers of the Central Ground Water Authority, Central Ground Water Board and State ground water organisations are authorized to monitor and conduct periodic inspections with the approval of the Competent Authority. To further decentralise and strengthen the monitoring and compliance mechanism, officials of concerned Departments of Revenue and Industries of States/Union Territories shall be appointed as authorised officers in consultation with the State/Union Territory Governments. A copy of the No Objection Certificate issued by the Central Ground Water Authority in the No Objection Certificate Application Portal will be forwarded to the respective District Magistrate/District Collector. In case of any violation of the directions of the Central Ground Water Authority and non‑fulfilment of the conditions laid down in the No Objection Certificate, the authorised officers will file appropriate petitions or original applications under Sections 15 to 21 of the Environment Protection Act 1986 in the appropriate High Courts of India., Section 15 provides for environmental compensation in case of illegal abstraction of ground water. Extraction of ground water for commercial use by industries, infrastructure units and mining projects without a valid No Objection Certificate from the appropriate authority shall be considered illegal and such entities shall be liable to pay environmental compensation for the quantum of ground water so extracted. Moreover, under Section 16, stricter penalty provisions for non‑compliance of No Objection Certificate conditions have been incorporated in the revised guidelines., Provision for environment impact assessment as directed by the Tribunal has been incorporated in the new guidelines for all projects extracting or proposing to extract ground water in excess of 100 cubic metres per day in over‑exploited, critical and semi‑critical areas. Such project proponents shall mandatorily submit an Impact Assessment Report of existing or proposed ground water withdrawal on the ground water regime and also a socio‑economic impacts report prepared by accredited consultants. Mandatory submission of comprehensive reports for mining projects prepared by accredited consultants and Impact Assessment Reports for infrastructure projects where de‑watering is allowed is also included in the new guidelines., As directed by the Tribunal, a proposal for constitution of an Expert Appraisal Committee to evaluate Environment Impact Assessments of project activities on individual assessment units has been approved by the Ministry. No Objection Certificate applications shall be approved based on the recommendations of the Committee constituted under the Chairmanship of the Chairperson of the Central Ground Water Authority and other members of reputed organisations. Impact Assessment Reports in No Objection Certificate applications with regard to ground water withdrawal of more than 100 kilolitres per day in over‑exploited, critical and semi‑critical areas shall be put before the Committee for evaluation as per the guidelines. The Expert Committee may also review impact evaluations for extraction of ground water less than 100 kilolitres per day in over‑exploited areas on a case‑by‑case basis., According to the new guidelines, commercial entities extracting ground water shall be required to submit an online annual Water Audit Report which shall be published on the website to ensure transparency. It shall be mandatory for industries using more than 100 cubic metres per day of ground water to undertake an annual water audit through the Confederation of Indian Industry, the Federation of Indian Chambers of Commerce and Industry, the National Productivity Council or the PHD Chamber of Commerce and Industry for accurate information and submit the same within three months of completion. Such industries shall be required to reduce their ground water use by at least 20 % over the next three years through appropriate means. The guidelines provide for installation of telemetry by the users for online monitoring of ground water levels. Renewal applications shall not be approved without a valid Water Audit Report., Section 9 lays down compliance conditions for the grant of a No Objection Certificate and provides that proponents shall install rooftop rain water harvesting and recharge systems in the project area as per the prevailing building bye‑laws. Installation of digital water flow meters conforming to BIS/IS standards and equipped with telemetry systems in the abstraction structures shall be mandatory for all users seeking a No Objection Certificate. The users will have to get their flow meters calibrated on an annual basis., Section 14 provides for ground water level monitoring, according to which all project proponents drawing ground water more than 10 cubic metres per day have to mandatorily construct piezometers (observation wells) within their premises for monitoring ground water levels., Ground water extraction charges vary according to the type of industry and the criticality of the area in which it is located, and such charges are intended to be used by the State Implementing Agencies for restoration or augmentation of ground water and water conservation measures to ensure sustainability. The optimal requirement of ground water by users is taken into consideration. The intention is to ensure that users realise the economic value and extract only the required quantity, thereby preventing over‑extraction. Charges have been kept hefty to act as a deterrent, particularly in critical and over‑exploited assessment units. Existing industries, infrastructure units and mining projects which have installed artificial recharge structures in compliance with the conditions prescribed in the groundwater guidelines prevailing at the time of grant or renewal of the No Objection Certificate shall be eligible for a rebate of 50 % in the ground water abstraction or restoration charges, subject to satisfactory performance and verification. This provision promotes recharge of ground water and encourages project proponents to maintain their existing structures in good condition., According to the new guidelines, water management plans shall be prepared by all State Ground Water Authorities or organisations for all over‑exploited, critical and semi‑critical assessment units, starting with over‑exploited units. Water management plans shall be reviewed and updated periodically. These plans, data on water availability and scarcity and related policies shall be placed on the websites of the Central Ground Water Authority and the respective State Ground Water Authority. Availability of ground water is assessed periodically in the entire country in consultation with States and Union Territories. Data on water availability (Ground Water Resource Assessment‑2017) is available on the website. Assessment as on March 2020 is under progress and will be shared publicly once finalised., Detailed guidelines for abstraction of ground water in saline and partially saline assessment units have been framed separately with certain relaxations to promote sustainable use of saline ground water as an additional resource, since the salinity makes the water otherwise unusable. Natural recharge after use of saline ground water further helps in dilution of salinity., As per the latest Dynamic Ground Water Resource Assessment report of the Central Ground Water Board, depletion of ground water is largely due to the irrigation draft. Out of an estimated total annual ground water extraction of 248 billion cubic metres, the estimated irrigation draft is around 219 billion cubic metres. The estimated industrial draft is around 12 billion cubic metres, constituting approximately 5 % of the total draft, and the estimated drinking and domestic draft is around 17 billion cubic metres. Controlling extraction of ground water from industries alone may not affect the overall ground water scenario. The best course of action is participatory ground water management involving all stakeholders, as promoted by the Government. The guidelines advise States and Union Territories to review free or subsidised electricity policies for farmers, introduce suitable water pricing policies and promote crop rotation, diversification and other initiatives to reduce over‑dependence on ground water., Ground water usage in the agriculture sector is significant but is considered necessary to ensure food security and to promote public interest. Rain water, as nature’s gift, enables aquifers to recharge. Stored water resources in aquifers are intended for use during non‑monsoon days. The carrying capacity of aquifers varies based on rain water availability, hydro‑geological conditions and climatic factors. While a large share of ground water resources is utilised for food security, a smaller portion serves industrial and domestic needs. Hence, industries constitute a small percentage of ground water usage and, by focusing on water‑conservation efficiency, are allowed to extract ground water subject to checks against over‑extraction with provisions for penalties for violations of the new guidelines., Drinking water needs in the country are largely met through supplies by civic bodies. In a few cases where citizens are unable to obtain drinking water through the supply network, ground water is tapped to meet various needs. Even today ground water is considered a dependable source for drinking purposes due to rising pollution levels in surface water in some parts of the country. The Delhi Jal Board in the National Capital Territory is tapping ground water in the Palla area to meet drinking water needs of the people of Delhi, which serves as a classic example., India has been primarily an agrarian nation for several decades despite fluctuations in agricultural productivity. Global experience shows that countries with industrial development achieve higher GDP growth rates. Recognising that national prosperity lies in rapid industrial development, the focus shifted towards globalisation and economic liberalisation. Incentives are part of economic liberalisation and are intended to promote small and marginal industries for balanced regional development, to prevent concentration of wealth and to relieve small and micro industries from the burden of water investments, as water is a precious and priced commodity. These incentives were considered under the Central Ground Water Authority guidelines only for users in small quantities, and adverse effects are not noted to be significant when compared with the larger national interest., As observed by the Committee constituted in the matter of Shailesh Singh, the Central Ground Water Authority has appointed officers under Section 4 of the Environment Protection Act 1986. At the district level, concerned Deputy Commissioners, District Magistrates and District Collectors were appointed as authorised officers under Section 4, vide Public Notice No. 8/2017 dated 23‑10‑2017, and intimated the concerned States and Union Territories for checking violations, sealing illegal or unauthorised bore wells and launching prosecution against offenders. At the state or regional level, the Central Ground Water Authority has appointed Regional Directors and Heads of Offices of the Central Ground Water Board as authorised officers. These Regional Directors and Heads of Offices are further assisted by teams of scientists and officers in the regions for effective regulation in accordance with the provisions of the law. The Central Ground Water Authority has also engaged young professionals for assisting in secretariat functions. Currently, more than 100 employees are exclusively engaged in the regulation and management of ground water, including scrutiny of No Objection Certificate applications submitted by project proponents. The functions of the Central Ground Water Authority are discharged with responsibility and constant coordination with regional offices., Hence, a robust mechanism is in place and the Central Ground Water Authority is empowered by the Central Government to consider further appointments under Section 4 of the Environment Protection Act 1986 as and when necessary. In addition, State Ground Water Authorities are operational in several states under State or Union Territory enactments and are actively contributing towards the achievement of sustainable development and management of ground water resources. A proposal for the establishment of a separate Central Ground Water Authority, delinked from the Central Ground Water Board, and the creation of suitable posts is under active consideration of the Government., A web‑based online system, the No Objection Certificate Application Portal (NOCAP), is completely functional for receipt and processing of applications and issuance of No Objection Certificates, making the process less time‑consuming and more transparent. The NOCAP portal is in the public domain and data can be accessed by private persons. NOCAP helps in effective monitoring of processes, tracking of applications by users and facilitates better coordination between the twelve Regional Offices of the Central Ground Water Board in the States and the Central Ground Water Authority Headquarters in New Delhi., Respondents 2, 3 and 4 have further stated that the Central Ground Water Authority has issued directions under Section 5 of the Environment Protection Act 1986 through various public notices, details of which are as follows: No. T‑39011/6/2019 – Ground Water dated 21‑08‑2019. States and Union Territories have been advised from time to time to enact ground water legislations in similar lines to the Ground Water Model Bill circulated to them for sustainability of precious ground water resources. They have been advised to work towards improving water use efficiency, generating awareness, formulating water pricing policies, etc. In paragraph 32, reference is made to other schemes launched by the Government of India in respect to water, namely: Atal Bhujal Yojana, National Aquifer Mapping and Management Programme, Mission Water Conservation, Mahatma Gandhi National Rural Employment Guarantee Scheme, Pradhan Mantri Krishi Sinchayi Yojana, Integrated Watershed Management Programme, Command Area Development and Water Management, Deendayal Upadhyay Gram Jyoti Yojana, Mukhyamantri Jal Swavlamban Abhiyan in Rajasthan, Jalyukt Shivar in Maharashtra, Sujalam Sufalam Abhiyan in Gujarat, Mission Kakatiya in Telangana, Neeru Chettu in Andhra Pradesh, Jal Jeevan Hariyalli in Bihar, Jal hi Jeevan in Haryana., Learned counsel for the appellant urged that the 2020 guidelines do not conform to the directions issued by the Tribunal and, in substance, are a copy of the 2018 guidelines which were disapproved by the Tribunal. The Central Ground Water Authority has adopted a very soft attitude for permitting No Objection Certificates to industries even in over‑exploited, critical and semi‑critical areas without caring to consider the issue of availability of drinking water to people residing in such areas. Even water‑intensive units are allowed No Objection Certificates in these areas without regulating indiscriminate abstraction of ground water. The charges are very nominal and allow profiteering by industries through violations. There is no impact assessment, no study by any expert body, and abstraction of ground water in stressed areas has been permitted in the name of industrial development. The counsel reiterated all grounds taken in the appeal., Per contra, Shri Pradeep Mishra, learned counsel for the Uttar Pradesh Pollution Control Board, contended that the action of the respondents is strictly in accordance with the guidelines and statutory provisions dealing with the issue of abstraction of underground water and that whatever has been done is consistent with the law as it stands today; therefore, the application is liable to be dismissed. No other counsel advanced any argument on behalf of the statutory authorities or regulators, and the submissions made in the replies should be taken into consideration., In the backdrop of the above pleadings, reports, statutes and relevant provisions, the Tribunal identified several substantial environmental questions arising out of the implementation of the enactments specified in Schedule I: (i) Whether regulation of ground water in India is within the exclusive domain of the Central Ground Water Authority by virtue of the Environment Protection Act 1986 or, where provincial enactments have been made, the Central Ground Water Authority would lose its authority and be sub‑servient to provincial legislation? (ii) Whether the Environment Protection Act 1986 and the orders and directions issued thereunder shall regulate matters relating to ground water or provincial enactments dealing with ground water shall prevail? (iii) If the answer to (i) and (ii) is in favour of the Central Ground Water Authority and central law, whether regulation of ground water by the Central Ground Water Authority has been as per the directions of the Supreme Court in M.C. Mehta v. Union of India & Others (1997) or it has failed in its statutory functions to protect and preserve ground water and has aided further depletion causing environmental damage? (iv) Whether the directions, orders and guidelines, including the 2020 guidelines issued by the Central Ground Water Authority for regulation of ground water in India, are consistent with the provisions of the Environment Protection Act 1986 and orders of the Supreme Court and this Tribunal? (v) Whether No Objection Certificates issued by the Central Ground Water Authority or the Uttar Pradesh Ground Water Authority conformed to the statutory norms emanating from the Environment Protection Act 1986, judgments of the Supreme Court and various orders of the National Green Tribunal? (vi) Whether the petitioners illegally extracted ground water or flouted any condition of the No Objection Certificate and/or committed any other violation of environmental norms? (vii) Whether there is any damage to the environment and, if so, in what manner it has been caused and who is liable for such degradation? (viii) What remedial or punitive order would be appropriate in the present case, which may be passed by this Tribunal?, It is evident that abstraction of ground water in areas of extreme scarcity is the core issue in these cases. Before dealing with the issues formulated above, on merits, it is appropriate to have a glance at the concept of ground water since ancient times. Water is one of the five elements which constitute the human body and is needed for the sustenance of civilisation. Considering its importance, the interest of society in general and the common man's need for drinking water, domestic uses, etc., must be examined. In many areas, people find it difficult to obtain potable water due to scarcity. Crises of water are reported frequently in the media across cities. Simultaneously, commercial interests require water for economic activities. The scarcity of water is well known and is a global problem. While attempts have been made at national and international levels to make potable water available to the common man, there cannot be a complete denial of water for commercial and industrial activities, which are the backbone of development and the economy. A balance must be maintained, but when a situation arises where a choice must be made, saving lives will obviously be preferred., Water is essential for life on earth. It is available on the planet in three phases: solid, liquid and gas. Water ties together major parts of the earth’s climatic system in the form of air, clouds, oceans, lakes, vegetation, snowpack and glaciers. The continuous movement of water within the earth and atmosphere is known as the water cycle. In liquid and solid forms, water is present on the surface and beneath the surface as snowpack, glaciers, oceans, rivers, streams, waterfalls, lakes, ponds and wetlands. Beneath the surface, water percolates through sand and rocks and is available as ground water. Ground water is an integral part of the water cycle, contributing to surface water and helping maintain surface water levels in areas where large quantities of water evaporate, thereby preventing drought. Water influences the intensity of climate variability and extreme events such as droughts and floods., Water has a role as an intimate part of human existence, whether for personal, social, household, commercial or industrial needs. It is a fundamental and basic need of the life cycle for both the animal and plant kingdoms. Therefore, it is extremely important that water resources are protected for human uses and the ecosystem. Our forefathers, at a very early stage, recognised the importance of water and educated people to respect nature, giving it spiritual and religious stature. Mountains, rivers, waterfalls, streams, ponds, wells and trees were treated as divine objects and worshipped. The idea was that people would be obliged morally, socially and religiously to protect nature, including water sources, and to practice reasonable utilisation., In ancient India, knowledge of hydrology was well developed. Ancient literature reveals that hydrologic indicators such as physiographic features, termite mounds, soils, flora, fauna, rocks and minerals were used to detect the presence of ground water. The Vrhat Sanhita, chapter 54, provides a detailed description of variations in the water table, hot and cold springs, ground water utilisation through wells, construction methods of wells and requisite equipment. As early as 550 AD, Varāhamihira presented a simple method for obtaining potable water from a contaminated source. Efficient water use, lining of canals, construction of dams and tanks, bank protection methods and spillways were given due consideration in ancient India., The National Institute of Hydrology, Ministry of Water Resources, River Development & Ganga Rejuvenation, Jal Vigyan Bhawan, Roorkee, in a work published in December 2018, recognised that knowledge of hydrology was present in ancient India from pre‑Harappan times and has been discussed in depth in the Vedas, Puranas, Arthashastra, Ashtadhyayi, Brihat Samhita, Ramayana, Mahabharata, Meghamala, Mayurchitraka, Jain and Buddhist literature.
id_481	3	In the aforesaid work, ground water is the subject of discussion in chapter 6. It is stated that in Rigveda, Samaveda and Yajurveda, the concept of the hydrological cycle and water use through wells was present, which clearly implies use of ground water in chapter 54 of Vrhat Sanhita. Its author Varahamihira (AD 505‑587) dealt with ground water exploration and extraction with various surface features that are used as hydrologic indicators to locate sources from ground water at different depths in wells, from 2.29 metres to 171.45 metres. In verses 54.1 and 54.61‑62, chapter 54 of Vrhat Sanhita, two technical terms shira and shiravigyan have been used. The term shira implies arteries of water or streams. Shiravigyan exactly conveys the meaning of water table. Verse 54.2 says that the water which falls from the sky originally has the same colour and taste, but assumes different colour and taste after percolation. In a very scientific manner, ground water and its explanation were dealt with, keeping in mind the preservation of water and its availability for all times to come, without getting it polluted or contaminated by any external means or operations., The science of water in India is ancient but unfortunately forgotten in the last few centuries. The Indian sub‑continent was invaded and ruled by people from other areas having different concepts, convictions and religious culture. The ancient scientific knowledge went into dormancy. The invaders treated inhabitants in a very crude manner, destroyed the treasure of knowledge given in this subcontinent by great saints and rishis, and compelled common folk to believe that their cultural wealth was a myth. Huge collections of research and knowledge stored in educational institutes of repute were set on fire or damaged. Volumes of ancient knowledge were also taken away by later invaders and rulers. The subsequent unscientific, unmindful and irrational massive excavation, extraction and consumption, not only of surface water but also of ground water, in the name of development of civilization, has created a situation where in some parts of the country drinking water is not available or has become a serious scarcity., Availability of water in all areas is not uniform, whether it is surface water or ground water. Water covers about 71 % of the earth’s surface and amounts to about 333 million cubic miles (1.386 billion km³) on the planet. According to a United States Geological Survey Water Science School, taking data from Igor Shiklomanov’s chapter “World freshwater resources” in Peter H. Gleick (editor), 1992, the total global water available is 96.5 % in oceans, 0.9 % in other saline water and only 2.5 % fresh water. Of the 2.5 % fresh water, 68.7 % is in glaciers and ice caps, 30.1 % is ground water and only 1.2 % is surface or other fresh water. Of the 1.2 % surface/other fresh water, 69.0 % is ground ice and permafrost, 20.9 % lakes, 3.8 % soil moisture, 2.6 % swamps and marshes, 0.49 % rivers, 0.26 % living things and 3 % atmosphere. Fresh water is defined as water with a salinity of less than 1 % that of the ocean, that is below around 0.35 %., In other words, as a rough estimate, out of the total water supply of about 333 million cubic miles (1.386 billion km³), more than 97 % is saline. Only a small percentage, i.e., 2.5 % fresh water, is available, of which about 68 % is locked up in ice and glaciers. A very small amount is available as surface water for human uses, i.e., 1.2 % (approximately 22,300 cubic miles or 93,100 km³), which is about 0.007 % of total water available on earth. Despite this very small fragment of water being consumable by human beings, rivers remain the source of most of the water people use., The quantum of ground water, compared with surface water, is definitely much larger. However, compared with global availability of water, it is a very small fraction thereof. In the past there was no control, regulation or supervision in respect of extraction of ground water. On the contrary, a recognition of owners’ right to use ground water is found in Section 7 of the Indian Easement Act, 1882, wherein Illustration (g) provides that land owners have the right to collect and dispose of all water under the land within their own limits. Availability of water vis‑à‑vis population and activities was sufficient, so owners’ right on water was given recognition without any restriction or regulation. Habitation was village‑centric. It was twentieth‑century urbanisation that made a drastic change in the life of the common man, creating various scarcities, most important of which is water, including ground water., In India we have a persistent problem of acute and severe drought as well as floods in various parts of the country, if not every year then quite frequently. Some states experience both flood and drought almost every year. A gigantic growth of infrastructure and industrial development has substantially consumed not only surface water but also ground water. Almost at the end of the twentieth century it was realised that a systematic water regime was the only option to protect human existence, and the Government of India, though reluctantly, attempted to create common awareness. It sought cooperation of all the states when it prepared a Model Bill in 1970 and circulated it to all the states with a request for adoption. Although the initial response was not positive, subsequent amendments and re‑circulations were made in 1992, 1996 and 2005. Some provincial governments responded by making provincial enactments for regulation of ground water. These enactments may have the objective of protecting and preserving the water table but in effect the provisions identified areas where ground water level was depleted, declared such hard areas as notified areas, and thereafter introduced the concept of permission from a Ground Water Authority, allowed very leniently, without any scientific study, impact assessment or carrying capacity assessment. It was akin to importing the idea of licence‑raj in the field of consumption of water in notified areas. The provisions necessary for recharge, restoration and replenishment and their effective monitoring were lacking., The international community, particularly in the last about fifty years, realised the danger of water scarcity, so much so that it is sometimes said that a third world war will be fought for water. Consequently, steps were sought to mitigate, restore and rejuvenate water resources, but positive effect remains a mirage., In the context of environment, it has been held from time to time that a clean and healthy environment is part of the fundamental right to life conferred by Article 21 of the Constitution of India. In Subhash Kumar v. State of Bihar (1991) 1 SCC 598, the Supreme Court of India said: the right to live includes the right of enjoyment of pollution‑free water and air for full enjoyment of life. In Narmada Bachao Andolan v. Union of India (2000) 10 SCC 664, the Court said: Article 21 of the Constitution of India provides for the right to life and the right to live with human dignity. The right to a clean environment and, further, pollution‑free water has been protected under the broad rubric of the right to life guaranteed under Article 21., Reference is also made to Article 48A, inserted in Part IV (Directive Principles of State Policy) by the Forty‑second Amendment of the Constitution, effective from 3 January 1977, which reads: ‘Protection and improvement of environment and safeguarding of forests and wildlife: The State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country.’ Further, Part IV‑A comprises Article 51A, also inserted by the Forty‑second Amendment, which reads: ‘Fundamental duties: It shall be the duty of every citizen of India (a) to abide by the Constitution and respect its ideals and institutions, the national flag and the national anthem; (b) to cherish and follow the noble ideals which inspired our national struggle for freedom; (c) to uphold and protect the sovereignty, unity and integrity of India; (d) to defend the country and render national service when called upon to do so; (e) to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women; (f) to value and preserve the rich heritage of our composite culture; (g) to protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion for living creatures; (h) to develop scientific temper, humanism and the spirit of inquiry and reform; (i) to safeguard public property and to abjure violence; (j) to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement.’, Concern about pollution of rivers and streams, rendering water unsuitable for supporting aquatic and surface life, causing damage to irrigation and agriculture, and the untreated discharge of domestic and industrial effluents in rivers, led the Government of India to constitute a Committee in 1962 to prepare a draft enactment for prevention of water pollution. The report was forwarded to various state governments and considered by the Central Council of Local Self‑Government in September 1963. The Council resolved that a comprehensive law dealing with water pollution and control at the central and state level may be enacted by the central legislature. Since the subject matter related to entry 17 of List II of the Seventh Schedule of the Constitution, Parliament lacked legislative competence to make a law on the subject except as provided in Article 249 and Article 250, i.e., unless legislatures of two or more states passed a resolution authorising the central legislature. Consequently, provincial legislatures of Gujarat, Jammu and Kashmir, Kerala, Haryana and Mysore passed such resolutions. Thereafter, the Water (Prevention and Control of Pollution) Act, 1974 was prepared and passed by Parliament. It was also passed under Article 252(1) of the Constitution by provincial legislatures of Assam, Bihar, Gujarat, Haryana, Himachal Pradesh, Jammu and Kashmir, Karnataka, Kerala, Madhya Pradesh, Rajasthan, Tripura and West Bengal. Ultimately the Water Act 1974 came into force on 23 March 1974., At the first instance it was made applicable to states which had passed a resolution under Article 252(1) adopting the said Act. Section 1(3) said that it shall come into force at once in those states and shall also apply to any state which adopts the Act thereafter. In June 1972 a conference on the human environment was held in Stockholm at the instance of the United Nations, in which India also participated. In 1972 the Stockholm Convention showed global concern on a depleting environment and endeavoured to protect and preserve it by taking appropriate steps. Decisions were taken to preserve natural resources. In furtherance of that decision and to give effect to the international resolution passed at the United Nations, the central legislature enacted the Air (Prevention and Control of Pollution) Act, 1981, which came into force on 16 May 1981. Subsequently it was realised that existing laws focused on specific types of pollution or specific categories of hazardous substances and that major areas of environmental hazards were not covered. Several gaps existed, needing a comprehensive statute for protection and improvement of the environment. This resulted in the enactment of the Environment Protection Act, 1986, which came into force on 19 November 1986., The Stockholm declaration also led to the amendment of the Constitution and insertion of Article 48A in the Fundamental Duties chapter, establishing that it is a fundamental human right to live in an unpolluted environment and a fundamental duty of every individual to maintain purity of the environment. The issue of environment assumed such importance that the Supreme Court of India in M.C. Mehta v. Union of India, AIR 1992 SC 382, directed the University Grants Commission to prescribe a course on environment., Since statutes for protection of the environment were enacted to implement decisions reached at the Stockholm conference, they are referable to Article 253, which confers legislative competence upon the central legislature irrespective of the subject in the list of legislation, under Schedule VII. Article 253 reads: ‘Legislation for giving effect to international agreements: Notwithstanding anything in the foregoing provisions of this Chapter, Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body.’ An enactment referable to Article 253 is further referable to entry 13 of List I of Schedule VII, which says: ‘Participation in international conferences, associations and other bodies and implementing of decisions made thereat.’, There was no specific penal legislation dealing with the matter of environment in India. In the Indian Penal Code, 1860, Section 268 defines public nuisance and abatement of public nuisance is covered by Sections 133 to 144. Sections 269 to 278 make provisions whereby a person guilty of violation of any of the above provisions would be liable to prosecution and punishment., The University Grants Commission of India, in February 1997, launched a symposium on the development of environmental studies in Indian universities, organised in collaboration with other organisations. The consensus was that ecology and environmental issues should form part of the courses of study at all levels. The Government of India, however, treated environmental violations with more seriousness and in 2012 brought an amendment to the Prevention of Money Laundering Act, 2002 by incorporating environmental laws, i.e., the Biological Diversity Act, 2002; the Water Act, 1974; the Air Act, 1981; and the Environment Protection Act, 1986, in Part A of the Schedule of the Prevention of Money Laundering Act, 2002., Provincial enactments for regulation of ground water: Earlier the only available legislation was the Indian Easement Act, 1882, which conferred certain rights upon the owner of a property to use water (ground water) with ownership rights. There was no regulation governing abstraction of ground water. The Government of India prepared a Model Bill in 1970 for ground water regulation and circulated it to states for adoption. This version was revised in 1992, 1996 and 2005 but there was no substantial progress., With the awareness of protection of environment and international resolutions passed at the United Nations, three enactments were made in India – the Water Act, 1974; the Air Act, 1981; and the Environment Protection Act, 1986 – but specifically the problem of exploitation of ground water was not dealt with. Lead was taken by some state legislatures, and in brief we refer to these provincial enactments to complete our stock of statutory provisions available in India to regulate ground water., The Andhra Pradesh Ground Water (Regulation for Drinking Water Purposes) Act, 1996 received assent of the Governor on 5 February 1996. Section 1(3) provides that it shall come into force on such date and in such local area of the state as the state government may, by notification, appoint, and different dates may be appointed for different local areas. Section 2(4) defines ground water as water existing in an aquifer below the surface at any particular location of the local area regardless of the geological structure, whether stationary or moving, and includes all ground water reservoirs. Section 2(6) defines over‑exploited watershed as a watershed where the estimated annual ground water extraction is more than eighty‑five percent of the estimated average annual ground water recharge, calculated in the prescribed manner, and declared as such under section 6. Section 2(12) defines water scarcity area as an area declared as such by the appropriate authority under section 4, and section 2(13) defines watershed as an area confined within the topographic water divide line, as identified and notified by the Ground Water Department from time to time having regard to the purposes of this Act. Section 3 imposes restriction upon sinking of any well for any purpose in the vicinity of a public drinking water source within a distance of two hundred metres if it is a source with hand pump or open well, and within a distance of two hundred and fifty metres if the source is used with a power‑driven pump. Sub‑section 2 directs that any person desiring to sink a well must seek permission of the appropriate authority and pay the prescribed fee. Section 4 confers power upon the appropriate authority, on the advice of the technical officer, having regard to the quantum and pattern of rainfall and any other relevant factor, to declare a water scarcity area if public drinking water sources in any district are likely to be adversely affected. Such declaration is for a period not exceeding one year. Sub‑section 2 of section 4 empowers the appropriate authority to regulate extraction of water from any well by restricting or prohibiting extraction in the area declared as water scarcity area. Sub‑section 5 empowers the appropriate authority to declare a watershed as over‑exploited watershed on the advice of the technical officer. When an over‑exploited watershed is declared, sub‑section 2 imposes restriction upon any person for sinking a well within the said area without permission of the appropriate authority. Sub‑section 6 empowers the appropriate authority to prohibit extraction of water from existing wells in the area of over‑exploited watershed if found to be adversely affecting any public drinking water source, having regard to the quantum and pattern of rainfall and other relevant factors. The provisions for penalty and compensation are also made, and a procedure for passing orders adverse to any person, with remedy of appeal, is provided., The Bihar Groundwater (Regulation and Control of Development and Management) Act, 2006 was published in the Bihar Gazette (Extraordinary) dated 29 January 2007. Section 1(3) states that it shall come into force on such date as the state government may appoint by notification in the Official Gazette. Section 2(b) defines artificial recharge to ground water as the process by which a ground water reservoir is augmented at a rate exceeding that under natural conditions of replenishment. Section 2(f) defines ground water as the water which exists below the ground surface in the zone of saturation and can be extracted through wells or any other means or emerges as springs and base flows in streams and rivers. The Act provides for the establishment of the Bihar State Ground Water Authority by the state government by publication of a notification in the Official Gazette. Section 3 contemplates advice from the Authority, after consulting expert bodies including the Central Ground Water Authority, if it is necessary to control and regulate extraction or use of ground water in any form in any area, to the state government, to declare such area a notified area for the purpose of the Act. When an area is notified, a permit is required for extraction and use of ground water, as provided under section 6., In the National Capital Territory of Delhi, the Department of Environment issued an order dated 18 May 2010, purported to be a direction under section 5 of the Environment Protection Act, 1986, observing that continued extraction of ground water has led to severe depletion of ground water resources, has serious long‑term environmental implications and may result in drying up of ground water resources, which may also affect water quality. The Central Ground Water Authority, by notification in March 2006, notified East New Delhi, North‑East, North‑West and West districts of Delhi as over‑exploited areas, needing regulation and restriction of ground water extraction structures in those districts. The directions issued by the Lieutenant Governor of the National Capital Territory of Delhi state that in the whole of Delhi, no person shall draw ground water through bore well or tube well (new as well as existing) for domestic, commercial, agricultural or industrial uses without prior permission of the competent authority, i.e., the Delhi Jal Board or the New Delhi Municipal Council, as the case may be. The procedure for regulation of the above directions is given, and detailed guidelines as to the factors to be considered for grant of prior permission are not mentioned except that in certain cases the provision for rain water harvesting system shall be made., The Goa Ground Water Regulation Act, 2002 provides for the concept of declaration of a scheduled area having regard to the potential availability of ground water and other relevant factors, and imposes restriction on existing wells or new wells in the scheduled area., The Kerala Ground Water (Control and Regulation) Act, 2002 (Act 19 of 2002) was enacted for conservation of ground water and regulation of its extraction. It provides for the constitution of a State Ground Water Authority and the declaration of an area as a notified area where the government is satisfied that it is in public interest to regulate extraction or use of ground water. In a notified area, any person desiring to use ground water must seek a permit from the appropriate authority., The Karnataka Ground Water (Regulation and Control of Development and Management) Act, 2011 was enacted in the state of Karnataka. Pursuant to the Government of India, Ministry of Water Resources’ circulation of a model bill for regulation and control of development and management of ground water in 1992 and 1996, the Karnataka Ground Water (Regulation for Protection of Sources of Drinking Water) Act, 1999 (Karnataka Act 44 of 2003) was passed in 2003 and later substituted by the 2011 Act to control indiscriminate exploitation of ground water, especially in notified areas. The Act received assent of the Governor on 5 April 2011., The Lakshadweep Ground Water (Development and Control) Regulation, 2001, published in the Lakshadweep Gazette (Extraordinary) dated 14 September 2001, was made for regulation of ground water. It contemplated a Ground Water Authority and the declaration of any island as a notified island to control and regulate extraction or use of ground water., The Maharashtra Groundwater (Development and Management) Act, 2009, published in the Maharashtra Government Gazette (Extraordinary) dated 3 December 2013, was enacted to ensure and protect drinking water resources and regulate exploitation of ground water in the state of Maharashtra. It contemplates the constitution of the Maharashtra Water Resources Regulatory Authority and empowers the state government, on the recommendation of the authority, to declare any area as a notified area where it finds, in public interest, that extraction or use of ground water in a watershed or aquifer area should be regulated., The Pondicherry Ground Water (Control and Regulation) Act, 2002 (Act No. 2 of 2013) was enacted to regulate and control development of ground water and matters connected therewith., The Tamil Nadu Municipal Laws and the Chennai Metropolitan Area Groundwater (Regulation) Amendment Act, 2014 (Act No. 23 of 2014) was enacted to amend the Tamil Nadu District Municipalities Act, 1920, inserting provisions for a permit for sinking any well in any area of a third‑grade municipality, town panchayat or municipality. It also makes similar amendments in some metropolitan city enactments, namely the Madurai City Municipal Corporation Act, 1971; the Coimbatore City Municipal Corporation Act, 1981; and the Chennai Metropolitan Area Groundwater (Regulation) Act, 1987., The West Bengal Ground Water Resources (Management, Control and Regulation) Act, 2005 (Act XVIII of 2005), published in the Kolkata Gazette (Extraordinary) dated 31 August 2005, was enacted to manage, control and regulate indiscriminate extraction of ground water. It contemplates a state‑level authority, the West Bengal State Level Groundwater Resources Development Authority, as well as authorities at district and corporation levels. The powers and duties of the authority include taking into consideration various aspects of managing groundwater resources in West Bengal, its districts and corporations., Other enactments operating for control and regulation of ground water include: (i) Assam Ground Water Control and Regulation Act, 2012; (ii) Gujarat Irrigation and Drainage Act, 2013; (iii) Himachal Pradesh Ground Water (Regulation and Control of Development and Management) Act, 2005; (iv) Madhya Pradesh Peya Jal Parirakshan Adhiniyam, 1986; (v) Punjab Preservation of Subsoil Water Act, 2009; (vi) Rajasthan Soil and Water Conservation Act, 1964; (vii) Uttarakhand Ground Water (Regulation and Control of Development and Management) Act, 2016; (viii) Water Resources (Regulation and Control of Development and Management) Act, 2010 in Jammu and Kashmir; (ix) Union Territory of Chandigarh Water Supply Byelaws, 2011 (Amendment 2018); (x) Haryana Water Resources (Conservation, Regulation and Management) Authority Act, 2020 published in the Gazette of Haryana dated 7 December 2020 (Extraordinary)., The Uttar Pradesh Ground Water (Management and Regulation) Act, 2019 was published in the Uttar Pradesh Gazette (Extraordinary) dated 7 August 2019 and came into force on 2 October 2019 by notification dated 11 September 2019 issued under section 1(3) of the Act. The Act defines aquifer, bulk user, commercial user, ground water, infrastructural user, notified area, pollution, rainwater harvesting and urban area in sections 2(b), 2(e), 2(g), 2(q), 2(s), 2(u), 2(w), 2(x) and 2(aa) respectively. An aquifer is an underground layer of geological formation, group of formations or part of a formation comprising fractured rocks, sand, gravel and similar sediments that is sufficiently porous, permeable and saturated with water and that transmits or yields a significant quantity of water to a well or spring. A bulk user means a person or group of persons including any establishment such as hotels, lodges, private residential buildings, housing colonies, resorts, private hospitals, nursing homes, business complexes, malls or water parks, which extracts and uses ground water for its operational water needs. A commercial user means a person or group of persons including any institution, agency or establishment which extracts and uses ground water for purposes that directly or indirectly benefit its business or trade to make financial gain or profit. Ground water means the water occurring in its natural state below the ground surface in the zone of saturation and that can be extracted through wells or any other means or emerges as springs and base flows in streams and rivers. An infrastructural user means a person or group of persons including a firm or company which extracts and uses ground water for carrying out projects directly related to infrastructural development. A notified area means an area notified as such under section 9, which includes over‑exploited, critical blocks and stressed urban areas. Pollution means such contamination of ground water or surface water or alteration of the physical, chemical or biological properties of water or discharge of any sewage, plastic, thermocol or trade effluent or any other liquid, gaseous or solid substance into ground water, whether directly or indirectly, as may create a nuisance or render such ground water harmful or injurious to public health or safety, or to domestic, commercial, industrial, agricultural or other legitimate uses, or to the life and health of animals, plants or aquatic organisms. Rainwater harvesting means the technique or system of collection and storage of rainwater at micro‑watershed scale, including roof‑top harvesting, for storage or for recharge of ground water. Urban areas means the areas notified by a development authority, municipality or regulatory body, excluding lands classified for agricultural use in the master plan of a development authority or municipality or a regulated area. Under section 7 of the Act, the Uttar Pradesh State Ground Water Management and Regulatory Authority was constituted by notification dated 13 November 2019, published in the Uttar Pradesh Gazette (Extraordinary) on the same date.
id_481	4	By another Notification dated 02.01.2020, published in Uttar Pradesh Gazette (Extraordinary) of the same date, the Governor, in exercise of powers under Section 6(1) of the Uttar Pradesh Ground Water Management and Regulation Act 2019, directed the Uttar Pradesh State Ground Water Management and Regulatory Authority to constitute a District Ground Water Management Committee (hereinafter referred to as DGWMC) for each district of the State, consisting of a Chairman and Members, in accordance with the provisions of the said Section. Thereafter, by Notification dated 25.05.2020, published in Uttar Pradesh Gazette (Extraordinary), in exercise of powers under Section 49, the State framed the Uttar Pradesh Ground Water (Management and Regulation) Rules 2020 (hereinafter referred to as Uttar Pradesh Ground Water Management and Regulation Rules 2020). In exercise of powers under Section 9(1) of the Uttar Pradesh Ground Water Management and Regulation Act 2019, Notification dated 17.06.2020 was published, notifying rural and urban areas of the State of Uttar Pradesh, mentioned in the schedule, as Notified areas for taking up appropriate measures for overall management and regulation of ground water with effect from 02.10.2020. The rural areas of Uttar Pradesh, in respect of Gautam Buddha Nagar, included Blocks Dankaur, Bisrakh and Jewar. In part B, urban areas of Uttar Pradesh are mentioned which included NOIDA and Greater NOIDA in respect of district Gautam Buddha Nagar. Vide Notification dated 03.07.2020, published in Uttar Pradesh Gazette (Extraordinary), the Governor, in exercise of powers under Section 3 of the Uttar Pradesh Ground Water Management and Regulation Act 2019, directed the District Ground Water Management Committee to constitute a Gram Panchayat Ground Water Sub Committee (hereinafter referred to as GPGWSC) for each Gram Panchayat in each district., Under the scheme of the Uttar Pradesh Ground Water Management and Regulation Act 2019, Section 3 contemplates the constitution of a Gram Panchayat Ground Water Sub Committee in every Gram Panchayat, being the lowest public unit in rural areas within a block, to protect and manage ground water resources. Its functions include collection of information from all resources, preparation of a Gram Panchayat Ground Water security plan and carrying out such other functions as may be prescribed., In urban areas, Section 5 of the Uttar Pradesh Ground Water Management and Regulation Act 2019 contemplates the constitution of a Municipal Water Management Committee (hereinafter referred to as MWMC) for managing water in an integrated manner. Its functions include working in coordination with water‑related institutions within the respective municipality; determining the sources of water supply (surface water and ground water) and integrating them; preparing an overall municipal ground water security plan; registering all wells within notified and non‑notified areas other than those of existing commercial, industrial, infrastructural and bulk users; monitoring implementation of the municipal ground water security plan; and carrying out such other functions as may be prescribed., Section 6 of the Uttar Pradesh Ground Water Management and Regulation Act 2019 contemplates the constitution of a District Ground Water Management Committee as an overall unit for management of ground water resources at district level. Its functions include consolidation of Block Panchayat and Municipal Ground Water Security Plans into a District Level Ground Water Security Plan, based on a macro‑watershed approach and as per prescribed guidelines; implementation of the District Ground Water Security Plan; monitoring implementation of the District Ground Water Security Plan; conducting water awareness programmes; registering all existing commercial, industrial, infrastructural and bulk users in notified and non‑notified areas and granting authorization certificates/NOCs for ground water abstraction in non‑notified areas and registration of drilling agencies; carrying out such other functions as may be prescribed or assigned by the Uttar Pradesh State Ground Water Management and Regulatory Authority and coordinating with the Water Pollution Ground Water Sub‑Committee, Block Panchayat Ground Water Management Committee and Municipal Water Management Committee as well as the State Ground Water Management and Regulatory Authority., Section 7 empowers the State Government to constitute the Uttar Pradesh State Ground Water Management and Regulatory Authority, which was constituted by Notification dated 13.11.2019., Chapter III comprises a single Section, Section 8, and lays down the duties of the Ground Water Department. It states that the Department shall develop a mechanism to coordinate with the appropriate bodies, namely the Municipal Ground Water Management Committee and the Block Panchayat Ground Water Management Committee for rural areas, and the District Ground Water Management Committee for urban areas. They shall work as the Technical Secretariat for the State Ground Water Management and Regulatory Authority. Sub‑section (3) requires the Ground Water Department to identify and delineate areas such as over‑exploited and critical blocks, categorized as per the latest Ground Water Resource Estimation carried out by the Ground Water Department and the Central Ground Water Board, in consultation with the State Ground Water Management and Regulatory Authority. It shall also identify and delineate stressed municipal/urban areas where the decline of ground water levels is significant, i.e., more than 20 cm per year recorded during the last five years, for taking up appropriate measures for overall management and regulation of ground water in such areas. The areas so identified shall be designated as Notified areas for the purpose of regulation through Notification., Section 9 contemplates the identification and delineation of Notified areas for management and regulation of ground water resources. (1) Where the State Ground Water Management and Regulatory Authority, after consultation with appropriate authorities (based on inputs from the Ground Water Department), is of the opinion that it is necessary or expedient in the public interest to manage and regulate ground water for various purposes in any area and to enforce rain water harvesting/ground water recharge and to implement various appropriate water‑conservation, water‑saving and water‑efficient practices in over‑exploited/critical blocks and stressed urban areas (as identified and delineated by the Ground Water Department) where ground water levels have depleted to critical or alarming levels, it shall advise the State Government, in such manner as may be prescribed, to declare by notification such areas as Notified Areas for the purposes of this Act with effect from the date specified in the notification. Provided that (a) the date specified in the notification shall not be earlier than three months from the date of publication of the notification; (b) every notification in Hindi as well as in English, in addition to its publication in the Gazette, shall be published in not less than three daily regional newspapers with wide circulation in that region and also be served in such other manner as may be prescribed. (2) The procedure for demarcation and issuance of notification of the areas referred to in sub‑section (1) shall be as may be prescribed. (3) The notification issued under sub‑section (1) shall be reviewed periodically under the new Ground Water Assessment Report and, according to the findings of the report, shall be amended as may be prescribed., Section 10 deals with the registration of existing commercial, industrial, infrastructural and bulk users of ground water in Notified Areas. (1) Registration of existing commercial, industrial, infrastructural and bulk users of ground water: Every existing well for a commercial, industrial, infrastructural or bulk user located in Notified Areas (both urban and rural) shall apply to the respective District Ground Water Management Committee for grant of a certificate of registration. The procedure, time limit, forms, fee, etc., and other provisions for the grant of the registration certificate shall be as may be prescribed. Provided that (a) where any existing commercial user or bulk user is found extracting ground water without registration, the person or group of persons or agency shall be liable to be punished under Chapter VIII; (b) where a registered well becomes defunct, the fact shall immediately be brought to the notice of the respective District Ground Water Management Committee by the user of ground water; (c) where any such user of ground water, having a certificate of registration, wishes to carry out any modification or alteration in a registered well, the user shall obtain clearance for the same from the State Ground Water Management and Regulatory Authority in such manner as may be prescribed. (2) Every existing and future user of ground water, other than those mentioned in sub‑section (1), including domestic and agricultural users of ground water, shall register online or directly with the respective Block Panchayat Ground Water Management Committee or Municipal Water Management Committee for ground water usage. The web portal for online registration shall be notified by the respective committee., Section 11 deals with similar registration of existing commercial, industrial, infrastructural and bulk users of ground water in non‑notified areas. (1) Every well (existing or to be sunk) for commercial, industrial, infrastructural or bulk use of ground water in non‑notified areas shall apply to the respective District Ground Water Management Committee for grant of a certificate of registration. The procedure, time limit, forms, fee, etc., and other provisions for the grant of the registration certificate shall be as may be prescribed. Provided that (a) if any commercial, industrial, infrastructural or bulk user of ground water is found extracting ground water without registration, the person or group of persons or agency shall be liable to be punished under Chapter VIII; (b) if a registered well becomes defunct, this fact shall immediately be brought to the notice of the respective District Ground Water Management Committee by the user of ground water; (c) if any such user of ground water, having a certificate of registration, wishes to carry out any modification or alteration in a registered well, the user shall obtain clearance for the same from the respective District Ground Water Management Committee in such manner as may be prescribed. (2) Every existing and future user of ground water, other than those mentioned in sub‑section (1), including domestic or agricultural users of ground water, shall register online or directly with the respective Block Panchayat Ground Water Management Committee or Municipal Water Management Committee for ground water usage. The web portal for online registration shall be notified by the respective committee., Section 12 imposes restrictions on new well constructions in Notified areas. (1) No person, group of persons, institution, agency or establishment shall construct or sink any new well for commercial, industrial, infrastructural or bulk use, including construction of borings or tube‑wells under Government schemes within the Notified areas, except Government schemes for drinking water supplies and tree plantations. Anyone contravening this sub‑section shall be liable for punishment under Chapter VIII. The ban shall continue until the area is de‑notified by the State Government on the advice of the Uttar Pradesh State Ground Water Management and Regulatory Authority on the basis of a new Ground Water Resource Estimation Report or a significant improvement in the declining trend of urban ground water levels after seeking approval from the State Government. (2) Extraction, sale and supply of raw, unprocessed or untreated ground water in Notified Areas by any person, class of persons, institution, agency or establishment for the purpose of commercial or bulk uses shall not be allowed and such an act shall be punishable under Chapter VIII., Section 15 empowers the State Ground Water Management and Regulatory Authority, in consultation with the Ground Water Department, to fix ground water abstraction limits for existing commercial, industrial, infrastructural or bulk users of ground water while issuing registration for wells in Notified as well as non‑notified areas, on such terms and conditions as may be prescribed., Section 24 deals with the demarcation and protection of ground water quality‑sensitive zones for the purpose of prevention and control of ground water pollution in such areas and to identify safe quality zones for potable water supplies. Sub‑section (2) provides that the areas demarcated in sub‑section (1) shall be declared as Ground Water Quality Sensitive Zones by a notification issued by the State Government., Section 28 imposes a ban on direct recharging from open areas into aquifers. (1) In the process of artificial recharge to ground water from rain water (except from rooftop) falling on open land, ground, roads (paved or unpaved) or agricultural farms, direct recharging into the aquifers through recharge wells, bore wells, recharge shafts, injection wells, etc., shall not be allowed. (2) Any person who contravenes the provision of sub‑section (1) shall be liable to be punished under sub‑section (2) of Section 39., Section 34 imposes an obligation on the appropriate authorities to work for the revival and rejuvenation of rivers, ponds, wells, etc., in every village. The authority shall develop and execute efficient plans to conserve such rivers, ponds and wells., Section 35 imposes a duty upon the appropriate authority to undertake impact assessment of both social and environmental aspects of activities to be implemented in the area of its jurisdiction in accordance with the provisions of the Uttar Pradesh Ground Water Management and Regulation Act 2019. Sub‑section 2 provides that the impact assessment process shall include short‑term and cumulative impact assessment in the following fields: (a) impact on the right to water for life; (b) impact on drinking water sources; (c) impact on the quality and quantity of ground water; (d) impact on agricultural production; (e) impact on the ecosystem, including rivers and water bodies; (f) impact on land use., Section 39 in Chapter VIII provides offences and penalties, and by virtue of Section 49, an offence punishable under Section 39(1)(b)(i) is compoundable. The District Magistrate of each district in the State of Uttar Pradesh is to act as the District Ground Water Grievance Redressal Officer, vide Section 43(1)., In the Uttar Pradesh Ground Water Management and Regulation Rules 2020, Chapter III provides a procedure for registration of wells in Notified and non‑notified areas, and Rule 6 reads as follows: (1) Any existing commercial, industrial, infrastructural or bulk user who has sunk a well for extracting or using ground water in a notified or non‑notified area before the date of coming into force of the Act, or any future commercial, industrial, infrastructural or bulk user in a non‑notified area, shall make, in Form 1(A), an application referred to in sub‑section (1) of Section 10 or sub‑section (1) of Section 11 of the Act, within ninety days from the date of coming into force of the Act, to the District Ground Water Management Committee; (2) Any existing commercial, industrial, infrastructural or bulk user who has sunk a well for extracting or using ground water in a notified or non‑notified area before the date of coming into force of the Act and has a valid No‑Objection Certificate issued by either the Central Ground Water Authority or the Ground Water Department, Uttar Pradesh, shall make, in Form 1(B), an application referred to in sub‑section (1) of Section 10 or sub‑section (1) of Section 11 of the Act, within ninety days from the date of coming into force of the Act, to the District Ground Water Management Committee; (3) Every existing user of ground water, other than those mentioned in sub‑clause (1) of Rule 6, including domestic and agriculture users who have sunk a well or boring on their premises or agricultural land holdings, shall make, in Form 1(C), an application referred to in sub‑section (2) of Section 10 or sub‑section (2) of Section 11 of the Act, within six months from the date of coming into force of these rules, to the Block Panchayat Ground Water Management Committee or Municipal Water Management Committee, as the case may be; (4) Every future user of ground water, other than those mentioned in sub‑clause (1) of Rule 6, including domestic and agriculture users who desire to sink a well or boring on their premises or agricultural land holdings, shall make, in Form 1(D), an application referred to in sub‑section (2) of Section 10 or sub‑section (2) of Section 11 of the Act to the Block Panchayat Ground Water Management Committee or Municipal Water Management Committee, as the case may be, prior to sinking such well, provided that a user who has sunk more than one well for extracting or using ground water in the area shall be required to submit a separate application form for each well. (5) Form 1 shall be downloaded free of cost from the online web portal. (6) Improper filling of the form and failure to annex all necessary documents specified in Form 1 shall render the application liable to be rejected. (7) All applications as mentioned in the above sub‑clauses shall be submitted online through the web portal., Rule 13 states that any future or existing user, under Rule 6(1), who does not have an NOC from the Central Ground Water Authority or the Ground Water Department, Uttar Pradesh, shall make, in Form 8(A), an application to the District Ground Water Management Committee for the issue of an Authorization/NOC. Rule 14 deals with similar users who have an NOC issued by the Central Ground Water Authority or the Ground Water Department before the date of commencement of the Uttar Pradesh Ground Water Management and Regulation Act 2019 and wish to continue extraction of ground water; they shall make an application in Form 8(B). Rule 14(2) provides that a user having a pre‑existing right of ground water shall apply for renewal of the NOC after one year from the date of commencement of the Uttar Pradesh Ground Water Management and Regulation Act 2019 or on expiry of the validity of the existing NOC, whichever is earlier. Rule 15 empowers the District Ground Water Management Committee to grant or reject an Authorization/NOC when an application is submitted under Rule 13. However, when an application is submitted under Rule 14, the District Ground Water Management Committee shall forward the same to the Ground Water Department for technical comments., Chapter V comprises Rules 18 and 19 and deals with the identification and demarcation of Notified areas. Rule 18: Identification and demarcation of areas to be declared as Notified Areas. (1) Rural areas: For the purpose of demarcation of Notified Areas, over‑exploited and critical blocks shall be considered. The Ground Water Department shall identify and prepare a district‑wise list of blocks categorized as over‑exploited and critical, based on the latest ground water resource assessment report. (2) Urban areas: In the urban sector, stressed areas where ground water levels have depleted to critical or alarming levels shall be considered for declaring such areas as Notified Areas. The Ground Water Department shall identify and delineate those urban areas as stressed where ground water levels have recorded a significant decline of more than 20 cm per year during the last five years. (3) The Ground Water Department shall submit the list of over‑exploited and critical blocks and the stressed urban areas to the State Ground Water Management and Regulatory Authority for notifying the said areas, as provided in the Act. Rule 19: Issuance of Notification. (1) The State Ground Water Management and Regulatory Authority shall conduct necessary consultations on the inputs provided by the Ground Water Department related to over‑exploited and critical blocks and the stressed urban areas identified by the Department on the basis of analysis of ground water depletion. (2) The Authority shall thereafter advise the State Government to declare, by notification, such areas as Notified Areas for the purpose of implementing the different provisions of the Act. Based on the recommendation of the Ground Water Department, the Authority shall also advise the State Government to discontinue or redesign government schemes that are directly dependent on ground water extraction. (3) The State Government shall duly consider the recommendation and advice of the Authority for declaration of such areas as Notified Areas by notification in the Gazette. (4) The notification referred to in sub‑rule (3) shall be uploaded on the websites of all concerned departments and shall also be published in two widely circulated newspapers in the area., Chapter VI contains a solitary provision, Rule 6, which deals with fixing the limit of abstraction of ground water for commercial, industrial, infrastructural or bulk users. (1) For fixing ground water abstraction limits for all existing commercial, industrial, infrastructural or bulk users of ground water, the Ground Water Department, in consultation with stakeholders, shall submit a proposal to the State Ground Water Management and Regulatory Authority within six months from the date of commencement of these rules. (2) Based on the proposal submitted by the Ground Water Department, the State Ground Water Management and Regulatory Authority shall fix ground water abstraction limits for all commercial, industrial, infrastructural or bulk users of ground water. (3) The ground water abstraction limits fixed under sub‑rule (2) shall be recorded in the registration or authorization certificate/No‑Objection Certificate for wells of existing commercial, industrial, infrastructural or bulk users of ground water in Notified as well as non‑notified areas, and for all new commercial, industrial, infrastructural or bulk users of ground water in non‑notified areas, as the case may be, for the purpose of Section 15., Demarcation and declaration of Ground Water Quality Sensitive Zones are governed by Chapter VII, Rule 21. (1) To collect, evaluate and analyze ground water quality data and related information for generating an overview of the problem, the Ground Water Department shall hold technical consultations with expert bodies such as the Central Ground Water Board, Uttar Pradesh Jal Nigam, Central and State Pollution Control Boards, Indian Institute of Toxicological Research, National Institute of Hydrology, Indian Institutes of Technology and other institutions that have conducted area‑specific ground water quality studies, to obtain existing data, reports and information on ground water quality for both rural and urban segments of Uttar Pradesh. (2) Based on the evaluation, analysis and mapping of such data, the Ground Water Department shall develop a comprehensive quality database for the entire state. Subsequently, the department shall identify areas affected by poor ground water quality along with the risk of pollution hazards on drinking and irrigation water supplies. Such areas shall be demarcated and mapped as Ground Water Quality Sensitive Zones. (3) The department shall prepare a detailed district‑wise list of such zones with their GPS locations. (4) The complete information on ground water quality for the entire state shall be submitted to the State Ground Water Management and Regulatory Authority for onward action, with the objective of ensuring protection of ground water quality in the delineated zones through appropriate measures for prevention and control of pollution and identification of safe quality areas for potable water supplies. (5) The State Ground Water Management and Regulatory Authority shall take immediate action and issue directions to concerned departments to change or redesign their existing policies or schemes to ensure protection of ground water quality in the delineated zones. All concerned departments shall have to change or redesign their existing policies or schemes in those zones. (6) After issuance of directions in sub‑rule (5), if the District Ground Water Management Committee finds that any particular scheme of any department is responsible for pollution of ground water in that district, the Committee shall immediately take action in consonance with the provisions of the Act and shall submit a case to the State Ground Water Management and Regulatory Authority., Rule 22 requires the issuance of a notification to declare the identified area as a Ground Water Quality Sensitive Zone for the purpose of the Uttar Pradesh Ground Water Management and Regulation Act 2019. The notification shall be published in the Gazette, placed as a public notice by publication in three daily regional newspapers, and uploaded on the website. Further procedures for fixing standards of treated wastewater and installation of treatment plants are omitted at this stage., Rain water harvesting is governed by Chapter IX., The Uttar Pradesh Ground Water Management and Regulation Act 2019, read with the Uttar Pradesh Ground Water Management and Regulation Rules 2019, shows that different authorities must conduct studies in respect of ground water following the procedure laid down therein, and the competent authority may then issue an NOC, permission or clearance specifying the requisite conditions and data, including the quantity of permissible abstraction of ground water., History of the Central Ground Water Authority (CGWA), its origin and relevant provisions relating to its powers and duties: The issue of depletion of ground water first attracted the attention of the Supreme Court of India in M.C. Mehta vs. Union of India & Others (1997). On 20.03.1996, the daily newspaper Indian Express published a news item dated 18.03.1996 under the caption 'Falling Groundwater Level Threatens City'. The Court took judicial notice on 20.03.1996 and required the Central Ground Water Board and the Delhi Pollution Control Committee to respond. On 03.04.1996, the Court issued notices to the Municipal Corporation of Delhi and the Delhi Waterworks and Sewerage Disposal Undertaking. Dr. P.C. Chaturvedi, Director of the Central Ground Water Board, filed an affidavit stating that since 1962 water levels in the country have been declining. During the years 1971 to 1983, the fall in water level in the National Capital Territory was 4 to 8 metres, and a further fall of more than 8 metres occurred between 1983 and 1985. One of the reasons cited for the decline was enhanced pumpage. Consequently, the Supreme Court issued notice to the Government of India through the Secretary, Ministry of Water Resources, and the Government of the National Capital Territory of Delhi. The factual position regarding the fall of water levels was admitted in the affidavits filed by various authorities before the Supreme Court. By order dated 04.09.1996, the Supreme Court requested the Director of the National Environmental Engineering Research Institute (NEERI) to examine the matter at the institute level, by experts in the field, and submit a report. NEERI was also required to submit suggestions and recommendations for checking further decline of underground water levels. NEERI submitted a report dated 23.09.1996 titled 'Water Resources Management in India, Present Status and Solution Paradigm'., An affidavit dated 24.10.1996 was filed on behalf of the Ministry of Water Resources by the Additional Secretary, commenting on the NEERI report and indicating an overall declining water level picture in the country, as well as schemes and activities undertaken by the Government of India through various departments to monitor ground water. It was pointed out that, in order to arrest the depleting trend and avoid indiscriminate withdrawal of ground water, the Government of India had circulated a Model Bill to States and Union Territories in 1970 to help them formulate suitable legislation on the lines of the Model Bill to regulate and control development of ground water in the respective areas. The affidavit stated that in more than 120 blocks, i.e., 231 blocks in 6 Mandals and 12 Talukas, the level of ground water is over‑exploited. Noticing these facts, the Supreme Court accepted one of NEERI's suggestions regarding the constitution of an authority under Section 3(3) of the Environmental Protection Act 1986, and passed an order on 05.12.1996, overruling the objection raised by the Ministry of Water Resources, Government of India, that water being a State subject would preclude the constitution of an authority under Section 3(3) of the Environmental Protection Act 1986. The Court held that the Environmental Protection Act 1986 is made by Parliament under Entry 13 of List I, Schedule 7, read with Article 253 of the Constitution of India, and shall have overriding effect. There was already an organization, the Central Ground Water Board, having offices across the country; hence the Supreme Court directed that the Central Government may consider issuing a notification constituting the Board itself as an authority under Section 3(3) of the Environmental Protection Act 1986. It also observed that the said authority would have all statutory powers under Section 3(3) of the Environmental Protection Act 1986 and would be in a position to have effective control over the entire country. The Supreme Court also stated that any institution or department constituted by a State Government can function independently in its own field with the cooperation and guidance of the organization set up by the Central Ground Water Board., On 14.01.1997, the Ministry of Environment and Forests (hereinafter referred to as MoEF) issued a notification, in exercise of the power conferred by Section 3(3) of the Environmental Protection Act 1986, constituting the Central Ground Water Board as an authority, i.e., the Central Ground Water Authority (CGWA), for the purpose of regulation and control of ground water management and development, effective from the date of publication of the notification in the official Gazette of India., Paragraph 1 of the 1997 notification stated that the Central Ground Water Authority would consist of the following: (i) Chairman, Central Ground Water Board (Chairperson); (ii) Member (Exploratory Drilling and Materials Management), Central Ground Water Board; (iii) Member (Sustainable Management and Liaison), Central Ground Water Board; (iv) Member (Survey, Assessment and Monitoring), Central Ground Water Board; (v) An officer not below the rank of Joint Secretary to the Government of India, to be appointed by the Central Government as a member., Paragraph 2 of the notification dated 14.01.1997 provided the powers and functions of the Central Ground Water Authority, stating: (i) exercise of powers under Section 5 of the Environment (Protection) Act, 1986 for issuing directions and taking measures in respect of all matters referred to in Sub‑section (2) of Section 3 of that Act; (ii) resort to the penal provisions contained in Sections 15 to 21 of that Act; (iii) regulation of indiscriminate boring and withdrawal of ground water in the country and issuance of necessary regulatory directions to preserve and protect ground water.
id_481	5	The jurisdiction of the said Authority was declared to be the whole of India, vide paragraph 3, 94. Supreme Court of India in M.C. Mehta vs. Union of India & Others (1997) also said that the Authority, i.e., Central Ground Water Authority (CGWA) can resort to penal provisions contained in Sections 15 to 21 of the Environment (Protection) Act, 1986. It also observed that the main object for constitution of the Authority being the urgent need for regulating indiscriminate boring and withdrawal of underground water in the country, the Authority so constituted shall apply its mind to this urgent aspect of the matter and issue necessary regulatory directions with a view to preserve and protect underground water., It was initially constituted for one year as provided in paragraph 1 of Notification dated 14-01-1997. It was amended by Notification dated 13-01-1998, published in the Gazette of India (Extraordinary) of the same date, and the term was extended to five years. Another amendment was brought by Notification dated 05-01-1999, published in the Gazette of India (Extraordinary) dated 08-01-1999, thereby making CGWA a six-person Authority by adding a Regional Director or an officer of equivalent rank as Member Secretary. A major amendment vide Notification dated 06-11-2000, published in Gazette of India (Extraordinary) dated 16-11-2000, deleted the period of CGWA, making it an Authority without any limitation of period, and changed its composition to a ten-member Committee including a Chairman, with provision to have special invitees as and when required., The new composition of CGWA was as follows: Chairman, Central Ground Water Board (CGWB); Member (Survey, Assessment and Monitoring), CGWB; Member (Exploration Drilling and Materials Management), CGWB; Member (Sustainable Management and Liaison), CGWB; Member (Training and Technology Transfer), CGWB; Joint Secretary (Administration), Ministry of Water Resources; Joint Secretary and Financial Adviser, Ministry of Water Resources; Joint Secretary, Ministry of Environment, Forests and Climate Change; Chief Engineer, Irrigation Management Organization (Water, Planning and Projects), Central Water Commission; Director/General Manager (Exploration), Oil and Natural Gas Corporation Ltd., The Notification further authorized CGWA to invite, from time to time, the following as special invitees: Joint Secretary (Soil and Water Conservation), Department of Agriculture and Cooperation; Joint Secretary (Water Supply), Ministry of Urban Development; Joint Secretary (Department of Drinking Water Supply), Ministry of Rural Development; Director, National Institute of Hydrology, Roorkee; Director, National Geophysical Research Institute, Hyderabad., The powers and functions of CGWA described by Notification dated 14-01-1997 were also amended. Clause (iii) and (iv) were substituted with: (iii) to regulate and control, management and development of ground water in the country and to issue necessary regulatory directions for this purpose; (iv) exercise of powers under Section 4 of the Environment (Protection) Act, 1986, for appointment of officers., CGWA was conferred with powers to issue directions under Section 5 and also to exercise powers on the matters referred to in Section 3(2) of the Environment (Protection) Act, 1986. Section 3(2) provides that measures may include coordination of actions by State Governments, officers and other authorities, planning and execution of a nationwide programme for prevention, control and abatement of environmental pollution, laying down standards for quality of environment, emission or discharge standards, restriction of areas for certain industries, procedures and safeguards for prevention of accidents, handling of hazardous substances, examination of manufacturing processes, investigations and research, inspection of premises and giving directions, establishment of environmental laboratories, collection and dissemination of information, preparation of manuals, and other matters as the Central Government deems necessary., Section 3(3) allows the Central Government, if it considers it necessary or expedient, by order published in the Official Gazette, to constitute an authority or authorities for exercising and performing powers and functions, including the power to issue directions under Section 5, with supervision and control of the Central Government., Section 5 confers power to give directions, which was also conferred upon CGWA by the Central Government in its notification under Section 3(3). Section 5 reads: Notwithstanding anything contained in any other law but subject to the provisions of this Act, the Central Government may, in the exercise of its powers and performance of its functions under this Act, issue directions in writing to any person, officer or any authority and such person, officer or authority shall be bound to comply with such directions. Explanation – for the avoidance of doubts, the power to issue directions includes the power to direct (a) the closure, prohibition or regulation of any industry, operation or process; or (b) stoppage or regulation of the supply of electricity or water or any other service., Section 5 has an overriding effect over any other law, but directions issued under Section 5 must be within the compass of the Environment (Protection) Act, 1986 and cannot travel beyond. Sub-section 2 of Section 3, read with sub-section 1, shows that the power to take such measures was conferred with the objective of protecting and improving quality of environment and preventing, controlling and abating environmental pollution, subject to the provisions of the Act. Section 24 of the Act declares that, subject to sub-section 2, provisions of the Act and the rules or orders made therein shall have effect notwithstanding anything inconsistent contained in any enactment other than the Act., Therefore, provisions of the Environment (Protection) Act, 1986 and the rules or orders issued under it shall prevail over any other enactment except the Act itself. The only exception is with regard to offences and punishment: where an act constitutes an offence punishable under the Act and also under any other Act, the offender shall be punished under the other Act and not under the Environment (Protection) Act, 1986., Section 25 of the Act confers power upon the Central Government to frame rules and Section 26 provides procedure, which does not include directions or orders taken by virtue of Section 3(2) or Section 5. Hence directions issued under Section 5 or orders issued on matters referable to Section 3(2) are statutory orders. The Environment (Protection) Act, 1986 is referable to Entry 13, List I, Schedule VII of the Constitution read with Article 253, having been enacted pursuant to international conferences and resolutions; therefore it prevails over provincial legislation. All provincial enactments relating to ground water must subserve the guidelines issued by CGWA, which are statutory orders and shall prevail over provincial legislation., The limitation upon CGWA is that the guidelines, while subject to the provisions of the Environment (Protection) Act, 1986, must also conform to the mandate that they be for the purpose of protecting and improving quality of the environment and preventing, controlling and abating environmental pollution., Now we shall consider the issues formulated above on merits. Issues (i) and (ii) can be considered together., Supreme Court of India in its order dated 10-12-1996 in M.C. Mehta vs. Union of India & Others (1997), paragraph 12, said that the main object for constitution of the Central Ground Water Board, as an Authority, is the urgent need for regulating indiscriminate boring and withdrawal of underground water in the country. The Court further stated that the Authority, i.e., CGWA, shall apply its mind to this urgent aspect and issue necessary regulatory directions to preserve and protect underground water, and that this aspect may be taken up by the Authority on an urgent basis., The Court also noted that some state legislations regulate water resources development, but underground water was being exploited nationwide without an effective regulatory regime. It directed that an Authority under the Environment (Protection) Act, 1986 be constituted with powers necessary to deal with indiscriminate abstraction of ground water causing depletion of ground water levels, dwindling surface water resources, deterioration of ground and surface water quality and haphazard land use., In the same case, in an earlier order dated 05-12-1996, the Court rejected the contention that water is a State subject and that the Central Government has no role. The Court held that the Act, being made by Parliament under Entry 13, List I, read with Article 253, has an overriding effect., In S. Jagannath vs. Union of India & Others (1997) 2 SCC 87, Supreme Court held that the Environment Protection Act, 1986, enacted under Entry 13 of List I, Schedule VII, has overriding effect over State enactments, and that the Coastal Regulation Zone notification issued under the Act shall prevail over State laws., In Mantri Techzone Pvt. Ltd. vs. Forward Foundation & Others (2019) 18 SCC 494, the Court reiterated that a Central legislation enacted under Entry 13 of Schedule VII, List I, has overriding effect over State legislations, and that tribunals may specify buffer zones around lakes and water bodies even if contrary to State zoning regulations., Recently, in Civil Appeal No. 6932 of 2015, The Director General (Road Development), National Highways Authority of India vs. Aam Aadmi Lokmanch & Others, the view taken in Mantri Techzone was referred to and followed., Therefore, whenever a matter relates to the environment and is governed by legislation enacted by Parliament under Entry 13, List I, Schedule VII, that legislation prevails over State laws, even if the subject appears in List II. State legislatures may legislate only on aspects not covered by the Central enactment., We are of the view that on the subject of regulation of ground water, the provisions of the Environment (Protection) Act, 1986, the orders issued by the Central Government under Section 3(3), and the directions issued by CGWA under Section 5 and/or Section 3(2) shall hold field, and Provincial legislation cannot impede or deprive CGWA of its function to protect, preserve and sustain ground water in the country., Questions (iii) and (iv) are overlapping, hence both are being considered together., Although CGWA was constituted in January 1997, little activity is recorded for about two years. In 1999 CGWA issued Guidelines for granting No Objection Certificates (NOC) for withdrawal of ground water by industries/projects effective 01-01-1999. The Guidelines required industries seeking NOC to submit an application in the prescribed proforma to the Office of the Regional Director, CGWB of the concerned State or Member Secretary, CGWA, New Delhi, along with a referral letter from statutory organisations such as State Pollution Control Boards, Ministry of Environment, Forests and Climate Change, Bureau of Indian Standards, etc., and detailed designs for rain water harvesting where applicable., The Guidelines 1999 provided that for over-exploited blocks, clearance to industries in critical/over-critical areas would be considered case-by-case, and in severely over-exploited areas lacking deeper aquifers, clearances may be denied. For critical blocks, permits would be considered subject to implementation of rain water harvesting/ground water recharge matching the proposed draft. For semi-critical blocks, permits would be considered subject to implementation of rain water harvesting/ground water recharge., A new set of Guidelines was issued effective 20-10-2009, titled Guidelines for evaluation of proposals/requests for ground water abstraction for drinking and domestic purposes in notified areas and industry/infrastructure project proposals in non-notified areas. The Guidelines recognised high-intensive development of ground water leading to over-exploitation, long-term decline in water levels and deterioration of quality. Up to 2004, out of 5,723 assessed units, 839 were over-exploited, 226 critical and 550 semi-critical. CGWA had notified only 43 areas for regulation, limiting its action to those notified areas., The Guidelines 2009 allowed NOC for construction of tube wells or replacement of defunct wells for drinking and domestic purposes to: (i) Government departments entrusted with water supply; (ii) Other government organisations if the water supply department is not providing water; (iii) Schools, institutions and universities; (iv) Hospitals; (v) Embassies; (vi) State Bhawans; (vii) Individual households., The pre-conditions for grant of NOC to categories (i) to (vi) in notified areas were: (1) Maximum tube-well diameter restricted to 100 mm and pump capacity not to exceed 1 HP, except for government water supply agencies; (2) Concurrent with tube-well construction, the owner must install a rain water harvesting structure within 45 days and obtain verification; (3) Water from the tube-well to be used only for drinking and domestic purposes; (4) Details of drilling, rock formations, depth, diameter, pipe type, yield and water quality to be furnished to the nodal agency within 15 days of completion; (5) Permission valid for two months from date of issue, except for government agencies., For individual households in notified areas, the Guidelines imposed: (1) Only one tube-well allowed; if an existing well is non-functional it must be converted to a recharge well or properly sealed; (2) The applicant must inform the authorized office or Advisory Committee ten days in advance with details of the drilling agency; (3) Maximum diameter 100 mm and pump capacity not to exceed 4 HP; (4) Concurrent installation of rain water harvesting system; (5) Water to be used exclusively for drinking and domestic purposes; (6) All drilling details to be kept for record and provided at inspection; (7) Violation will attract legal action under Section 15 of the Environment (Protection) Act, 1986., The Guidelines state that permission will not be accorded for construction of tube wells for agriculture, industrial, commercial, horticulture or construction purposes in notified areas., In non-notified areas, the Guidelines laid down twelve criteria for evaluating proposals for ground water abstraction for industrial/infrastructure projects: purpose of use, area of ground water against availability, availability of shallow and deeper aquifers, criteria for recycling and reuse of effluents, adoption of water conservation measures, installation of water meters, scope of rain water harvesting and recharge potential, land use, ground water draft, saline aquifers and mining areas., The evaluation chart classified proposals by development stage (safe, semi-critical, critical, over-exploited) and prescribed recycling, water audit, and recharge requirements, with withdrawal percentages varying from mandatory recycling in safe areas to up to 60 % of proposed recharge in over-exploited areas, and a maximum withdrawal limit of 1,500 m³ per day per unit in over-exploited zones., For infrastructure projects in non-notified areas, runoff from the entire project area must be utilized for artificial recharge. In residential townships, water use other than drinking/domestic shall not exceed 25 % of total requirement, and the State Government must consider ground water availability while sanctioning projects, with proponents submitting a status report from water supplying agencies., For industrial projects in non-notified areas, in over-exploited and critical areas with deeper aquifers, withdrawal may be permitted subject to: (a) extraction only from deeper aquifers; (b) implementation of recharge measures for shallow/deeper aquifers within the lease/industry area; (c) recommendation of the concerned Regional Directorate on feasibility., Ground water abstraction by mining industries intersecting the water table may be permitted provided the mine water is put to gainful use (e.g., supply to adjacent areas, dust suppression, industrial processes, artificial recharge) and piezometers are installed for monitoring, with records maintained and made available to the regulating agency., Abstraction of saline ground water by industries must be accompanied by due care in effluent disposal to protect water bodies and shallow aquifers, a detailed report on effluent handling, and mandatory large-scale recharge to improve ground water quality., Industries are exempted from obtaining NOC from CGWA if their ground water requirement is up to 25 m³ per day in over-exploited areas, up to 50 m³ per day in critical areas, and up to 100 m³ per day in semi-critical areas, with verification vested in State Pollution Control Boards and mandatory rain water harvesting. Industries in safe areas must obtain NOC if abstraction exceeds 1,000 m³ per day in hard rock areas or 2,000 m³ per day in alluvial areas, except for those using water as a raw material such as packaged drinking water industries, distilleries and breweries., For monitoring implementation of Guidelines 2009, CGWA made State Pollution Control Boards responsible.
id_481	6	Further, a Committee was constituted at District level for evaluation of industry/infrastructure project proposals seeking ground water clearances, comprising of: District Collector - Chairman; Hydrogeologist, Central Ground Water Board of concerned District - Member; Representative from Industry - Member; Representative from Pollution Control Board - Member; Additional member to be adopted if required., The aforesaid Guidelines show that all substantially highly affected areas, facing scarcity of ground water, already placed in the category of over‑exploited and critical, were not managed/regulated on a mere pretext that the Central Ground Water Authority has notified only 43 areas and, therefore, the Central Ground Water Authority without any reason, in an unwarranted and unauthorized manner, defied directions of the Supreme Court issued in M.C. Mehta vs. Union of India & Others (1997), by restricting its activity of regulation to only 43 notified areas for protection of ground water. This approach of the Central Ground Water Authority was not consistent with the directions given by the Supreme Court in M.C. Mehta vs. Union of India & Others (1997). Unfortunately, the Central Ground Water Authority assumed the role of a mere licensing authority, permitting abstraction of ground water by industrial and other establishments, and failed to withstand the expectations and objective with which it was constituted. It restricted its statutory duties on its own, ignoring the mandate of the Supreme Court requiring it to take immediate steps to protect depletion of ground water where its level had gone down to alarming level, irrespective of whether it is notified or not, in the entire country., Vide instruction No. 26‑1/CGWA/D1/09/744 dated 08‑10‑2009, the Central Ground Water Authority issued directions to the Heads of Central Road Research Institute, National Highway Authority of India, Central Public Works Department, State Public Works Department, Indian Railways, Sports Authority of India, Board of Control for Cricket in India, Airport Authority of India, Ministry of Civil Aviation, Ministry of Sports and Youth Affairs to take up rain water harvesting and adopt artificial recharge of ground water to augment ground water resources and to save it from further depletion., In furtherance of the above, the Central Ground Water Authority said: The Director, Central Road Research Institute; Chairman, National Highway Authority of India; Director General, Central Public Works Department; Heads of the State Public Works Department (whether called Secretary, Principal Secretary or by any other name); Chairman, Railway Board; Head of Sports Authority of India; Chairman, Airport Authority of India; Director General, Ministry of Civil Aviation; Heads of Ministry of Youth Affairs and Sports shall ensure taking up rain water harvesting and adoption of artificial recharge to ground water in the country by their respective organisations/departments within a period of 365 days from the date of receipt of this direction, to augment ground water resources and to save it from further depletion., The above authorities shall obtain site‑specific designs and other technical guidance from the Regional Director/Officer‑in‑Charge of the Central Ground Water Board or the Ground Water Department of the State/Union Territory. The Regional Director/Officer‑in‑Charge shall, upon request, extend all necessary technical assistance and design input. The authorities mentioned shall intimate the action taken report to the Central Ground Water Authority within a period of 90 days of completion of rain water harvesting/recharge structure., Another direction was issued vide instruction No. 26‑1/CGWA/D1/09/743/783 dated 08‑10‑2009, directing all residential group housing societies, institutions, schools, hotels and industrial establishments falling in the over‑exploited and critical areas as specified in the Schedule to adopt rooftop rain water harvesting systems in their premises. They were directed to complete the systems by May 2010., The Central Ground Water Authority issued a new set of Guidelines namely Criteria for Evaluation of Proposals/Requests for Ground Water Abstraction (hereinafter referred to as Guidelines 2012) which came into force on 15‑11‑2012., Guidelines 2012 laid down different parameters for notified areas and non‑notified areas. Chapter A, titled Notified Areas, said that permission to abstract ground water through any energized means will not be accorded for any purpose other than drinking water. Paragraph II provided that a No‑Objection Certificate (NOC) can be accorded for construction of ground water abstraction structures or replacement of existing defunct wells for drinking purpose only to: a) Government department/Agency/Undertaking entrusted with the water supply; b) Other Government organisations, State Government Guest Houses, Registered Housing societies; c) Schools, educational and State/Central Government recognised research institutions/universities; d) Hospitals., It further stated that NOC for items (b) to (d) will be considered only if the Water Supplying Department is not providing adequate water in the area/premises. Pre‑conditions for grant of NOC for abstraction of ground water to categories (a) to (d) are as follows: Maximum diameter of the groundwater abstraction structures should be restricted to 150 mm (6 inches) only and capacity of the pump should not exceed 1 HP. In case of Government water supply agencies, housing societies, tube well size/diameter and HP of prime mover can be more depending on the ground water availability and requirement., Concurrent with the construction of groundwater abstraction structures, the organization shall undertake artificial recharge to groundwater through rain water harvesting structure in the premises within 45 days of issuance of NOC and will confirm to the Authorized Officer for verification. Installation of a water meter in the abstraction structure is mandatory and confirmation of water meter installation shall be given to the Authorized Officer with intimation to the concerned Regional office of the Central Ground Water Board immediately after construction. The daily water meter reading should be maintained and a quarterly report submitted to the Authorized Officer., The water from the groundwater abstraction structures will be used for drinking and domestic purposes only. All details of the drilling such as rock formations encountered, depth and diameter of the constructed groundwater abstraction structures, type of pipes used, yield of bore well/tube well, fracture zones encountered, and ground water quality etc., have to be furnished to the nodal agency authorized by the district administration head within 15 days of completion of the construction. The permission for construction of groundwater abstraction structure would be valid for a period of six months from the date of issue of NOC. The NOC issued would be non‑transferable., Individual households could also be accorded NOC for drinking purposes. Conditions are: Permission is granted only where public water supply system does not exist and is valid only till such time public water supply is provided. In that case, the abstraction structure shall be exclusively utilized for artificial recharge to groundwater or sealed. A certificate from the water supply agency regarding non‑availability of government water supply to the area/individual is to be submitted by the applicant. The premises should have only one groundwater abstraction structure (either existing or new) to meet the drinking and domestic requirements. No tube‑well/bore‑well will be constructed if any working tube‑well already exists. If the existing well has become non‑functional and is to be replaced, it should be converted into a recharge well, if possible, or properly sealed and no water be pumped from it. An undertaking as per Annexure‑II is to be submitted by the individual., The person(s) intending to construct a new tube‑well shall seek permission from the Authorized Officer/Advisory Committee at least 30 days in advance along with the name and address of the drilling agency which will undertake construction of the tube‑well. The maximum diameter of the tube‑well should be restricted to 110 mm (4 inches) only and the capacity of the pump should not exceed 1 HP. In case of deep water level the capacity/diameter of the structure will be decided by the Authority based on site‑specific recommendations. Concurrent with the construction of groundwater abstraction structure, the owner shall undertake artificial recharge to groundwater through rain water harvesting in the premises. The water from the tube‑well/bore‑well will be used exclusively for drinking and domestic purposes only within the premises. All details of the drilling such as rock formations encountered, depth and diameter of the constructed tube‑well, fracture zones encountered, type of pipes used, yield of bore well/tube well and ground water quality shall be kept for record and provided at the time of inspection. Any violation of the above conditions will attract legal action under section 15 of the Environment (Protection) Act. If the notified area is subsequently de‑notified, conditions pertaining to non‑notified areas shall be followed., Guidelines 2012 said that if a notified area is subsequently de‑notified, conditions pertaining to non‑notified areas shall be followed., Chapter B of Guidelines 2012 dealt with non‑notified areas. It stated that NOC for groundwater withdrawal will be considered for industries/infrastructure projects which are either new or under expansion as per the criteria given in Paragraphs I to VI. The criteria are summarised as follows: Industries shall recycle/reuse water; withdrawal permitted as a percentage of proposed recharge; safe category requires mandatory recycling and reuse of water and NOC is required if groundwater abstraction exceeds 100 m³/day; semi‑critical, major and medium industries shall recycle and reuse at least 50 % of wastewater and withdrawal may be permitted subject to undertaking of recharge measures, not to exceed 200 % of the recharged quantity; critical major and medium industries should fully recycle and reuse wastewater and withdrawal may be permitted subject to recharge, not to exceed 100 % of the recharged quantity; over‑exploited (except industries falling under category B‑VI) have no exemption from obtaining NOC; over‑exploited industries may withdraw up to 50 % of the recharged quantity., Infrastructure projects (SEZ, group housing projects, residential townships, hospitals, educational institutions, roads, bridges, technology parks, malls, multiplexes, etc.) shall utilise runoff from the entire project area for artificial recharge to groundwater unless risk of contamination exists or the area is water‑logged. The runoff shall also be used for harvesting/storage. The quantum of groundwater for usage other than drinking/domestic shall not exceed 25 % of total groundwater abstraction in housing projects/residential townships. Proponents are to submit a status report stating the quantum of water required and the quantity that would be provided by the Government Water Supplying agency, supported by a letter from the agency., In areas where specific depth zones are notified, permission to withdraw groundwater can be considered based on site‑specific recommendations of the Regional Directorate of the Central Ground Water Board from the depth zones not covered by the notification., Mining and dewatering projects may be permitted subject to conditions: the dewatered water must be put to gainful use (e.g., water supply, agriculture, dust suppression, artificial recharge); piezometers for monitoring groundwater level must be installed within the premises and peripheral areas and records maintained; special care must be taken in coastal areas to prevent seawater ingress; detailed and continuous study on the groundwater regime, including modelling, must be carried out and results submitted periodically to the Regional Directorate of the Central Ground Water Board., Industries or infrastructure projects desirous of utilizing saline groundwater would be permitted to extract saline groundwater provided due care is taken in disposal of effluents so as to protect water bodies and aquifers from pollution. Proposals must include a detailed project report elucidating the mechanism of handling effluent water and its various uses. Large‑scale recharge mechanisms should be adopted wherever feasible to improve groundwater conditions., Industries using groundwater as raw material or water‑intensive industries such as packaged drinking water, mineral water, distilleries, breweries, soft drink manufacturing, textiles, paper and pulp, etc., shall not be granted NOC for groundwater withdrawal from over‑exploited areas. In safe, semi‑critical and critical areas NOC for groundwater withdrawal is mandatory, but withdrawal limits are: safe – up to 200 % of groundwater recharge; semi‑critical – up to 100 % of groundwater recharge; critical – up to 50 % of groundwater recharge; over‑exploited – no permission., Further conditions are: sale and supply of raw/unprocessed/untreated groundwater by unauthorized agencies for commercial use is not permitted; non‑compliance with conditions in the NOC may be a reason for cancellation or non‑renewal of the NOC; where State Ground Water Authority exists, groundwater regulation shall be done by it and the State Ground Water Authority shall send a quarterly progress report to the Central Ground Water Authority; in case of delay in executing a project for bona‑fide reasons, the applicant may apply to the Central Ground Water Authority for extension; no application for NOC shall be entertained without proper referral letters from the statutory authority (Central or State Government departments and agencies); the referral letter shall contain verification of the quantum of water for the industry/project with detailed breakup of groundwater consumption, recycle and reuse of wastewater; the CRZA rules and regulations shall be applicable wherever in vogue; no permission is required for withdrawal of groundwater through non‑energized means; mandatory clause on rain water harvesting may be relaxed in water‑logged or shallow water level (<5 m below ground level during pre‑monsoon) areas; relaxation in the quantity of groundwater withdrawal in over‑exploited areas, and/or quantity of recharge being affected by the firm can be permitted by the Central Ground Water Authority if it feels absolutely necessary in national interest; artificial recharge proposals are required to be vetted by any competent authority of State or Centre; treated water shall not be used for recharge to groundwater as it may contain heavy metals and other toxic elements; treated water shall be fully used by the proponent or any other agency that can utilize it without contaminating the underlying aquifer or water bodies; NOC issued is non‑transferable., Guidelines 2012 show that a study of state‑wise resources as on 31‑03‑2009 was available, showing that out of 5,842 assessment units (blocks, mandals, talukas, districts), 802 were over‑exploited, 169 critical, 523 semi‑critical, 4,277 safe and 71 saline. Annual replenishable groundwater resources were estimated as 431 billion cubic metres, net ground water availability was 396 bcm and overall stage of groundwater development of the country was 61 %., Guidelines 2012 further stated that the Central Ground Water Authority has notified 82 areas for the purpose of regulation of groundwater development. The District Administrative Head (i.e., Divisional Commissioner or District Magistrate in case of Administrative Block or Taluka or Head of Municipality in case of municipal area of notified area) was appointed as Authorized Officer by the Central Ground Water Authority under Section 4 of the Environment (Protection) Act, 1986. All issues pertaining to grant of NOC for groundwater withdrawal, checking violations, sealing of groundwater abstraction structures, launching prosecution against offenders, attending to complaints etc., were to be addressed by Authorized Officers. In a notified area, permission to abstract groundwater through any energized means will not be accorded for any purpose other than drinking water. NOC was open for sanction for drinking purposes only to the limited categories of Government departments entrusted with water supply, other Government organisations and educational institutions – private or governmental including research institutions/universities and also hospitals where water supply is not available from Government or semi‑government water supply departments. In non‑notified areas, directions for grant of NOC for withdrawal of groundwater to new and under‑expansion industries and infrastructure projects with certain conditions were mentioned in Guidelines 2012., The Central Ground Water Authority, in respect of over‑exploited and critical areas, assumed jurisdiction in a restricted manner by confining it to the 82 areas it had notified, though the Ground Water Resource Estimates of 2009 identified 802 over‑exploited areas, 169 critical and 523 semi‑critical. This restricted regulation was clearly in defiance of the Supreme Court directions in M.C. Mehta vs. Union of India & Others (1997)., OA No. 59/2012, Vikrant Kumar Tongad vs. Union of India & Others, was filed before the National Green Tribunal raising grievance that there is under‑regulated, large‑scale dewatering of areas particularly in NOIDA and Greater NOIDA by various construction companies, excessive use of groundwater and non‑compliance with notifications and guidelines issued under the Environment (Protection) Act, 1986, causing depletion of groundwater level in district Gautam Buddha Nagar, Uttar Pradesh. The applicant requested the Tribunal to direct authorities to make a proper assessment of depletion in groundwater level, stop dewatering activity in violation of guidelines, regulate groundwater extraction for commercial, industrial, residential and other purposes, stop illegal water packaging units, assess their impact on groundwater, implement regulations related to groundwater harvesting and take penal action against defaulting industries, infrastructure units and establishments etc., The State of Uttar Pradesh contested the matter by filing a reply dated 06‑02‑2013 wherein it admitted depletion of groundwater level in NOIDA and Greater NOIDA at certain places, but pleaded its compulsion on the ground of fulfillment of daily requirement of urban and rural populace. It also highlighted efforts taken by the State for conservation of groundwater resources, including: an Executive Committee under the Chairmanship of the Chief Secretary constituted in 2004 to review rain water harvesting and groundwater recharge programmes; mandatory rooftop rain water harvesting for individual plots of 300 square metres or more and for existing as well as new government and semi‑government buildings; allocation of 5 % of total area for ponds/water bodies in housing schemes/plans of 20 acres or more, with maximum pond depth of 3 metres; limitation of pucca construction in parks to 5 % of total area and use of permeable or semi‑permeable/perforated material for pavements; requirement of geological and hydrological surveys for new schemes; compulsory installation of piezometers for monitoring groundwater level and quality in all industrial units; public awareness programmes; assignment of the State Ground Water Department to regularly monitor groundwater level in urban and rural areas and to conduct block‑wise groundwater resource estimation; issuance of various Government orders (12‑04‑2001, 01‑07‑2008, 19‑06‑2009 and 05‑08‑2010) emphasizing rain water harvesting., A separate reply was filed by the Central Ground Water Authority dated 12‑02‑2013, wherein it referred to Guidelines 2012 and reiterated that the state‑wise assessment of groundwater resources as on 31‑03‑2009 revealed 802 over‑exploited units but only 162 units were notified, making extraction of groundwater impermissible for any purpose other than drinking water. Regarding Gautam Buddha Nagar, it pointed out that four blocks – Bisrakh, Dadri, Dankaur and Jewar – were considered. As per the estimation on 31‑03‑2004, all four blocks were in the safe category; as per the estimation on 31‑03‑2009, Bisrakh and Dankaur entered the semi‑critical category and Jewar shifted to over‑exploited. Only Dadri remained safe though groundwater development increased from 25.98 % (as on 31‑03‑2004) to 73.03 % (as on 31‑03‑2009). The Central Ground Water Authority did not explain why, despite identification of a large number of over‑exploited units, only a fraction were notified, and continued to ignore the Supreme Court mandate in M.C. Mehta vs. Union of India & Others (1997)., The application filed by Vikrant Kumar Tongad was admitted on 21‑11‑2012 and an interim order was passed on 11‑01‑2013 granting injunction against abstraction of groundwater by builders in NOIDA and Greater NOIDA., While the matter was pending, the Central Ground Water Authority issued an additional Guideline/criteria which came into force on 05‑04‑2013, permitting abstraction of saline groundwater in notified areas subject to certain conditions., OA No. 108/2013, Legal Aid National Green Tribunal Bar Association vs. National Capital Territory of Delhi & Others, was filed under Section 18(1) read with Sections 14, 15 and 17 of the National Green Tribunal Act, 2010, raising grievance concerning illegal abstraction of groundwater in the State of Delhi resulting in abnormal fall in groundwater level. It referred to a notification dated 12‑07‑2010 published in the Delhi Gazette (9‑15 July 2010) issued by the Lieutenant Governor of the National Capital Territory of Delhi, under Section 5 of the Environment (Protection) Act, 1986, stating that no person shall draw groundwater through bore well or tube well (new or existing) without permission for domestic, commercial, agricultural or industrial uses. The applicant sought relief directing authorities to implement relevant provisions for effective management and regulation of groundwater and rain water harvesting., The Tribunal took up the matter on 23‑04‑2013 and issued notices to the respondents. The respondents, including Delhi Jal Board, stated that there were 106 tube wells operating with permission and 205 functioning unauthorizedly and illegally. The Tribunal found that illegal operators were not paying any charges to the authorities, creating an incentive for illegal and unauthorized use of groundwater leading to depletion and water scarcity in Delhi. Consequently, a Committee was constituted to collect complete data of legal and illegal tube wells in the National Capital Territory of Delhi, to take potential action against illegally operating tube wells/bore wells, recommend measures to prevent fall of groundwater level and suggest methods for encouraging rain water harvesting and recharging groundwater in Delhi., A similar grievance was made in OA No. 179/2013, Raj Hans Bansal vs. Ministry of Water Resources & Others in respect of the National Capital Territory of Delhi. Notices were issued on 23‑08‑2013 and the matter was clubbed with OA No. 108/2013 by order dated 19‑11‑2013., During the pendency of the above matters, Guidelines 2012 underwent a minor amendment by Central Ground Water Authority Notification dated 06‑08‑2014 stating that Guidelines/Criteria thereafter will follow the report on groundwater resources estimation as on March 2011 for evaluation of project proposals of industries/infrastructures/mining seeking groundwater extraction., Neither the above Guidelines resulted in any improvement to the constant depletion of groundwater nor did the Central Ground Water Authority make any serious attempt for betterment of the situation. The water level continued to deplete., Complaints about ineffective, inadequate and improper regulatory measures adopted or omissions on the part of the Central Ground Water Authority, and indiscriminate extraction of groundwater continuously across the country, were brought before the Tribunal in several other matters. One such matter is OA No. 176/2015 wherein grievance was that a large number of hotels in the State of Uttar Pradesh were drawing groundwater for commercial purposes without permission/sanction from the Central Ground Water Authority and other authorities including UP Pollution Control Board and Central Pollution Control Board; and that the Central Ground Water Authority was not taking action against them though their illegal withdrawal was causing harm to environment, groundwater level and global warming. Notices were issued on 26‑05‑2015. It was found that three hotels – Hotel Holiday Regency, Moradabad; Hotel Clark Awadh, Lucknow; and Hotel Country Inn, Sahibabad – were extracting groundwater without permission, while Hotel Sunshine Park, Ghaziabad claimed to have a separate water connection from Ghaziabad Nagar Nigam. Hotel Radisson Blu, Kaushambi reported having both sources of water i.e., groundwater and water supply from Nagar Nigam. Extraction was not with the permission of the Central Ground Water Authority though after filing of the application, some hotels moved application and subsequently got permission., The Central Ground Water Authority, in response, relied on Guidelines 2012 and took the stand that it is regulating only notified areas where abstraction of groundwater is permissible only for drinking water but in non‑notified areas the permission can be granted subject to conditions mentioned in Guidelines., Thereafter, the Central Ground Water Authority issued another set of Guidelines (a draft at that stage) namely Guidelines/Criteria for evaluation of proposals/request for ground water abstraction (hereinafter referred to as Guidelines 2015), giving effect from 16‑11‑2015, claiming that the same have been framed as per the Tribunal’s direction for further improvement of groundwater regulatory processes. Objections/suggestions/comments were invited till 15‑01‑2016. Guidelines 2015 show that the latest assessment of state‑wise groundwater resources was available to the Central Ground Water Authority as on 31‑03‑2011, according to which, out of 6,607 assessment units, 1,071 were over‑exploited, 217 critical, 697 semi‑critical, 4,580 safe and 92 saline. Annual replenishable groundwater resource was estimated as 433 billion cubic metres, net groundwater availability as 398 bcm. Overall stage of groundwater development of the country was 62 %. Guidelines 2015 also show that till that time the Central Ground Water Authority had notified only 162 areas for the purpose of regulation of groundwater development. Guidelines 2015 sought to supersede all earlier Guidelines w.e.f. 16‑11‑2015. In respect of notified areas, it provided that permission to abstract groundwater through any energized means will not be accorded for any purpose other than drinking water.
id_481	7	The Central Ground Water Authority (CGWA) followed a very flexible stand in non‑notified areas, as it had earlier, but with certain conditions. It provided that a No Objection Certificate (NOC) for ground‑water withdrawal would be considered for industries, infrastructure and mining projects, as per the categorisation of the areas i.e. safe, semi‑critical, critical and over‑exploited. It also said that industries using water as a raw material or water‑intensive industries shall not be granted an NOC for ground‑water withdrawal in over‑exploited areas., The ineffectiveness and casual approach of the CGWA was brought to the notice of the National Green Tribunal, with a further complaint that ground‑water level in the entire country is continuously depleting. In Original Application No. 176/2015, the Tribunal pointed out that by order dated 15‑04‑2015 in Original Application No. 204/2014, Krishan Kant Singh v. M/s. Deoria Paper Ltd., the Tribunal directed that it shall be obligatory upon the CGWA to ensure that any person operating a tube well or any means to abstract ground water should obtain its permission and operate the same subject to law in force, whether it is an existing unit or still to be established. In compliance thereof, the Guidelines 2015 were published, inviting objections., The matter of Vikrant Kumar Tongad came up for consideration on 26‑07‑2018. During the course of arguments, it was brought to the notice of the Tribunal that water is depleting in certain areas regularly as per the study of the CGWA and, therefore, a rational policy has to be adopted so as to make water available to meet the needs of society while preserving water for future generations by preventing wastage based on the principle of sustainable development. It was also noticed that the problem of depletion of ground water was not limited to Delhi or the National Capital Region but needed to be considered for the entire country, with effective enforcement of regulatory measures PAN India, particularly in respect of semi‑critical, critical and over‑exploited areas. The Draft Guidelines 2015 were also referred. The Tribunal did not find effective regulatory measures either on the part of the CGWA or the concerned Ministry, hence directed an expert from the Ministry of Water Resources to remain present on the next date with the latest updates., Paragraphs 15 to 18 of the order dated 26‑07‑2018 in Vikrant Kumar Tongad read as follows: Certain affidavits have been filed regarding the inference about the extent of extraction of ground water. In its compliance report dated 31‑05‑2018, the Senior Town Planners, Department of Country Town and Planning, State of Haryana suggested a formula for tentative calculation of water consumption for constructions, broadly 0.75 kilolitre per square metre to 1 kilolitre per square metre. The actual requirement was found to be 2 kilolitres per square metre for buildings up to 20 stories; if the number of storeys is more, the use of water per square metre was higher. On that basis, the following factors for water consumption (in litres per square metre of built‑up area) were suggested: (1) Buildings up to 5 stories – 750 litres; (2) Buildings 5 to 10 stories – 1000 litres; (3) Buildings 10 to 20 stories – 1500 litres; (4) Buildings above 20 stories – 2000 litres., When the matter was taken up for hearing, learned counsel for the parties submitted that the concern for ground‑water depletion is not limited to Delhi or the National Capital Region. The Tribunal may, instead of limiting the issue to the NCR region, consider various aspects of the issue comprehensively, including the existing mechanism for regulation of ground‑water extraction as well as recharge of ground water., On the one hand there is the need for water, which is a basic necessity; on the other hand there is the compulsion of restricting its use in view of the fact that the availability of water is inadequate and the level of water is depleting in certain areas as per the study of the CGWA. The policy has to be rational, meeting the basic need of everyone and at the same time preserving water for future generations by preventing wastage based on the principle of sustainable development. Incidental to such policy is the issue of punitive measures and recovery of damages for those who have extracted ground water in the past and continue to do unauthorised or illegal extraction, leading to alarming depletion. Further questions will be steps to be taken to tap all relevant sources, especially rain‑water harvesting, preserving water bodies, etc., The Tribunal’s attention was drawn to the guidelines for the criteria for evaluation of proposals for extraction of ground water effective from 16‑11‑2015. These guidelines provide for notified and non‑notified areas depending upon the availability of water and criteria adopted for permitting extraction where there is water scarcity. Learned counsel for the applicant submitted that further guidelines have been prepared, though they may be at the draft stage. For this purpose, the Tribunal directed an expert from the Ministry of Water Resources to remain present on the next date with the latest updates., In Original Application No. 176/2015, the Tribunal on 28‑08‑2018, taking note of complaints of inaction of the CGWA and ineffective regulation of extraction of ground water in critical areas, observed: \We are disappointed at the apathy shown by the CGWA. On the one hand the CGWA has classified over‑exploited, critical and semi‑critical areas for regulation; on the other hand it has refused to regulate such areas on the specious plea that it is only concerned with the notified area. Being the Central Authority for the whole country under the binding mandate of the order of the Hon'ble Supreme Court of India, such apathy can hardly be appreciated and such pleas are against the concept of rule of law.\, Consequently, by order dated 28‑08‑2018, the Tribunal directed the Ministry of Water Resources, in consultation with the Ministry of Environment, Forests and Climate Change and the Ministry of Agriculture, to forthwith review the existing mechanism so as to ensure effective steps for conserving ground water, at least in areas which are over‑exploited, critical and semi‑critical. The Tribunal further said that the policy framework should include a monitoring mechanism with provision for coercive measures, consistent with the directions of the Supreme Court of India in M.C. Mehta v. Union of India & Others (1997); the policy must also provide for recovery of damages for illegal drawal of ground water, and damages should include penalty as well as environmental compensation., On 29‑08‑2018, the matter of Vikrant Kumar Tongad came up before the Tribunal when it expressed its displeasure at the non‑finalisation of the Guidelines, despite the order of the Supreme Court passed as early as 1996 in M.C. Mehta v. Union of India & Others (1997). Pursuant to that, the CGWA was constituted by the Government of India by Notification dated 14‑01‑1997. Referring to all its earlier orders passed in Vikrant Kumar Tongad and also in other cases that came up before the Tribunal later, namely Original Application No. 176/2015, Original Application No. 484/2015, Shailesh Singh v. Hotel the Oberoi Amarvilas & Others (order dated 28‑08‑2018), it was observed that the CGWA has failed to perform its duty of coming out with a clear rational policy for conserving ground water despite Supreme Court orders in M.C. Mehta v. Union of India & Others (1997). The Tribunal also referred to its orders in Original Application No. 108/2013, Original Application No. 179/2013 and Appeal No. 67/2015, Apex Chambers of Commerce and Industries of N.C.T. of Delhi & Others v. Government of NCT Delhi & Others, which pertained to the Delhi Jal Board, wherein the Board’s stand was that for commercial packaging or supply, permission to abstract ground water would not be granted. Hence the Tribunal by order dated 10‑07‑2018 prohibited such abstraction., In another matter taken up on the same date, i.e., 29‑08‑2018, Original Application No. 411/2018, M/s. A‑One Mineral Water Industry v. Central Ground Water Authority & Others, the Tribunal deprecated and disapproved the approach and working of the CGWA, including its Chairman and Administrator, and required the Secretary, Ministry of Environment, Forests and Climate Change to look into the matter and report before the Tribunal., Several matters, namely Original Application No. 59/2012, Original Application No. 108/2013, Original Application No. 179/2013, Original Application No. 176/2015, Original Application No. 484/2015, Original Application No. 327/2018, Shailesh Singh v. Panchsheel Buildtech Pvt. Ltd. & Others, Original Application No. 115/2017, Shailesh Singh v. Central Ground Water Board & Others, Original Application No. 411/2018 and Appeal No. 67/2015, came up on 22‑10‑2018 when no progress was shown by the authorities before the Tribunal, despite categorical orders passed earlier. Deprecating, the Tribunal observed that the authorities were comfortably sleeping over the matter, and in spite of pendency, no concrete steps were shown to have been taken by them. The matter was adjourned to 12‑11‑2018, directing the Secretary, Water Resources, Government of India to remain personally present to show cause why action for defiance and non‑compliance of the Tribunal’s order should not be taken., All these matters led by Original Application No. 59/2012 came up before the Tribunal on 12‑11‑2018. In its order, the Tribunal noticed that even in over‑exploited, critical and semi‑critical areas, with or without permission, underground water continued to be extracted on the specious plea that though critical, the area was not notified and thus not regulated. Before the Tribunal, the CGWA sought to disown its responsibility stating that water is a subject matter of the State and therefore Central bodies have a limited role. Similar defence taken before the Supreme Court of India by the Government of India was already negated in M.C. Mehta v. Union of India & Others (1997), yet the CGWA repeated the same. This was deprecated by the Tribunal. Various observations made by the Tribunal, demonstrating failure of the CGWA in functioning as per directions and observations of the Supreme Court of India, are set out in paragraphs 3 to 8:, Paragraph 3: As a result of the survey of the geographical areas in the country, over‑exploited, critical and semi‑critical areas have been declared. The CGWA had issued 2012 guidelines and thereafter prepared draft guidelines on 16‑11‑2015 which have been pending finalisation for the last three years. The Tribunal noticed that even in over‑exploited, critical and semi‑critical areas, with or without permission, underground water continues to be extracted on the specious plea that the area was not declared notified and is thus not regulated. The CGWA has also sought to disown its responsibility by saying that the matter is a State subject., Paragraph 4: The Tribunal has passed several orders prohibiting extraction of underground water for commercial purposes with or without permission. The condition of requiring recharge of the underground water, which does not actually happen, and on that basis permitting drawal of underground water for commercial purposes has been held to be unjustified., Paragraph 5: Underground water has been found to be extracted for building construction, bottling plants, swimming pools, threatening availability of the underground water in over‑exploited, critical and semi‑critical areas, especially in the absence of adequate steps for rain‑water harvesting for recharge of the underground water., Paragraph 6: The plea that industries are allowed to draw underground water against charges is ridiculous and beyond comprehension in over‑exploited, critical and semi‑critical areas. It is against the precautionary principle, sustainable development as well as inter‑generational equity principle. While drawal of underground water for drinking purposes where no other source exists may be understood, for any other purpose, especially industrial, such drawal cannot be allowed with or without payment in such areas. The Tribunal has also noted that drawal of ground water in the catchment areas of rivers may affect e‑flow of the rivers, which in turn affects aquatic life and river water quality., Paragraph 7: The Tribunal appreciates the difficulties of agriculturists but the option of providing alternatives such as use of treated sewage water or switching to less water‑consuming crops needs to be considered. Equally significant is the need for checking contamination of underground water by entities discharging untreated effluents into the earth or water bodies. Comprehensive planning and execution thereof on the subject with utmost priority is necessary and the absence thereof has led to emergency situations in certain areas., Paragraph 8: In several orders, the Tribunal has noted the apathy of the authorities in the last six years in neglecting the subject in breach of the trust reposed in such authorities. It was this concern that led to earlier observations and direction to require the presence of the Secretary, Department of Water Resources in person. No information was available about steps taken in compliance of earlier directions, including action for illegal activities of the CGWA, except a statement that the Authority is ill‑equipped. The presence of the Secretary today and an affidavit filed before the Tribunal on 16‑10‑2018 indicating that a policy framework has been evolved and reframing of policy guidelines are under consideration for reference to the Ministry of Law were noted., Thereafter, the CGWA came up with a new set of Guidelines, vide Notification S.O. 6140 (E) dated 12‑12‑2018, published in the Gazette of India (Extraordinary) of the same date, titled \Guidelines to Regulate and Control Ground Water Extraction in India\. They were given effect from 01‑06‑2019 (hereinafter referred to as Guidelines 2018)., Paragraph 2 of the Guidelines states that these Guidelines shall supersede all earlier guidelines issued by the CGWA and will have PAN India applicability., Paragraph 2.1 lists the categories of users exempted from obtaining an NOC for ground water abstraction: (i) all users drawing or proposing to draw ground water through non‑energised means (bucket & rope, hand pump, motor etc.); (ii) individual households drawing or proposing to draw ground water from a single dug well, borewell or tube well through a delivery pipe of up to 1 inch diameter; (iii) agricultural users; (iv) Armed Forces establishments during operational deployment or mobilisation in forward locations. The following categories shall be granted exemption from the requirement of an NOC for ground water withdrawal, subject to submission of particulars as per the proforma (Annexure III): strategic and operational infrastructure projects for Armed Forces, defence establishments and paramilitary forces establishments, and government water supply agencies in safe and semi‑critical areas. The agencies mentioned shall install digital water flow meters to monitor monthly ground water abstraction, construct observation wells (piezometers) equipped with Digital Water Level Recorders (DWLR) for regular monitoring if the proposed extraction is greater than 10 m³/day, and monitor water quality once a year during April/May. Ground water samples shall be analysed at an NABL‑accredited laboratory and data submitted to the concerned Regional Office of the Central Ground Water Board via the web portal., Paragraph 2.2 deals with drinking and domestic use. A request for an NOC shall be considered only where the water supply department or agency concerned is unable to supply an adequate amount of water in the area. For granting an NOC for ground water withdrawal for drinking and domestic purposes, two broad categories are identified: (a) individual households/connections and (b) infrastructure projects, industries, mining projects, water supply agencies and others., Paragraph 2.2.1 sets out conditions for individual households. Households drawing or proposing to draw ground water through more than one functional borewell/tube well/dug well, or through a delivery pipe of more than 1 inch diameter from a single abstraction structure, shall be required to seek an NOC. The NOC shall be granted subject to: proof of ownership; absence or inadequacy of public water supply; an affidavit on non‑judicial stamp paper of Rs 10 confirming non‑availability of public water supply; validity for five years or until public water supply is provided, whichever is earlier; installation of a digital water flow meter and submission of data through the web portal; sealing of defunct wells as per Annexure V; implementation of rooftop rain‑water harvesting as per building bye‑laws (no recharge in areas prone to water‑logging); payment of Water Conservation Fee as per Sub‑section 2.6; and voiding of the NOC in case of change in land use or water use., Paragraph 2.2.2 sets out conditions for infrastructure projects, industries, mining projects and public water supply agencies requiring water only for drinking and domestic use. An indicative list of such projects is given in Annexure VI. The NOC shall be granted based on: (i) approval documents such as Terms of Reference, Consent to Establish, Consent to Operate or licence issued by statutory bodies (MoEF&CC, State Level Expert Appraisal Committee, State Level Environment Impact Assessment Authority, State Pollution Control Board, Urban/Rural Development Authority, Department of Industries or any other authority mandated by the Central/State Government); (ii) details of water requirement computed as per the National Building Code, 2016, taking into account recycling/reuse of treated water; (iii) an affidavit on non‑judicial stamp paper of Rs 10 confirming non‑availability of public water supply for users requiring up to 10 m³/day; (iv) a certificate of non‑availability of water from the government water supply agency for projects requiring more than 10 m³/day; (v) water quality data from an NABL‑accredited laboratory. Use of recycled or treated wastewater for flushing, green belts etc. shall be mandatory for new projects requiring more than 12.5 m³/day. Additional conditions include installation of digital water flow meters, sealing of defunct wells, rooftop rain‑water harvesting where groundwater level is deeper than 5 m below ground level, payment of Water Conservation Fee, installation of DWLRs with telemetry for larger projects, submission of monthly water level and quality data through the web portal, and a validity of five years or until public water supply is provided., Annexure VI lists the infrastructure projects governed by paragraph 2.2.2, including residential apartments, residential townships, office buildings, schools, colleges, universities, industrial areas (drinking use), special economic zones (drinking use), metro stations, railway stations, bus depots, airports, seaports, highway infrastructure, fire stations, warehouses, business plazas, malls and multiplexes, hospitals, nursing homes, water parks, theme parks, amusement parks, resorts, hotels, restaurants, food plazas, holiday homes, guest houses, banquet halls, IT complexes, logistics and cargo facilities, clubs and trade centres., Paragraph 2.3 deals with industrial, mining and infrastructure projects. All such projects, whether existing, new or under expansion and drawing or proposing to draw ground water through energized means, shall need to obtain an NOC for ground water withdrawal from the Central Ground Water Authority., Paragraph 2.3.1 sets out conditions for industries. An NOC shall be granted only where government agencies are not able to supply the desired quantity of water. The application shall be accompanied by: (i) approval documents such as Terms of Reference, Consent to Establish, licence issued by statutory bodies (MoEF&CC, State Pollution Control Board, State Level Expert Appraisal Committee, State Level Environment Impact Assessment Authority, Bureau of Indian Standards, Food Safety and Standards Authority of India, Department of Industries or any other authority mandated by the Central/State Government); (ii) a valid Consent to Operate issued by the Industry Department or Pollution Control Board; (iii) a certificate regarding non/partial availability of fresh water or treated wastewater from the concerned government agency where groundwater requirement exceeds 10 m³/day; (iv) an affidavit on non‑judicial stamp paper of Rs 10 confirming non‑availability of water supply for requirements up to 10 m³/day; (v) water quality data from an NABL‑accredited laboratory. A hydrogeological report prepared by an NABET‑accredited consultant shall be mandatory for users drawing 2000 m³/day or more in safe assessment units, 1500 m³/day or more in semi‑critical and critical units, and 1000 m³/day or more in over‑exploited units. Installation of digital water flow meters (conforming to BIS standards) shall be mandatory, with data submitted through the web portal within 30 days of grant of the NOC. Monthly meter readings shall be recorded and submitted. Industries shall minimise the use of fresh groundwater through recycling and reuse of wastewater. Industries drawing 500 m³/day or more in safe and semi‑critical units, and 200 m³/day or more in critical and over‑exploited units, shall undertake a water audit (Annexure IX) through CII/FICCI/NPC‑certified auditors and submit the report within three months of completion; the first audit shall be done within a year of grant of the NOC, with subsequent audits every three years for safe/semi‑critical units and every two years for critical/over‑exploited units. Construction of observation wells (piezometers) for monthly groundwater level monitoring shall be mandatory for industries drawing more than 10 m³/day. Industries drawing 50 to less than 500 m³/day in safe and semi‑critical units, and 20 to less than 200 m³/day in critical and over‑exploited units, shall install Digital Water Level Recorders (DWLR) in the observation well for continuous monitoring, with data retrieved and submitted through the web portal. For larger projects (500 m³/day or more in safe and semi‑critical units, 200 m³/day or more in critical and over‑exploited units), DWLRs with telemetry shall be installed, with the data server maintained by the instrument supplier and access provided to the CGWA. All industries shall monitor groundwater quality from the abstraction structures, collecting samples during April/May each year and analysing them at NABL‑accredited laboratories for basic parameters, heavy metals, pesticides and organic compounds, and uploading the data to the CGWA web portal. Industries shall implement rooftop rain‑water harvesting within six months of grant of the NOC, except in areas prone to water‑logging (water level within 5 m below ground level). Industries shall deposit a Water Conservation Fee based on the quantum of extraction as applicable (see Sub‑section 2.6).
id_481	8	Industries which are not able to implement roof top rain water harvesting due to likely threat of pollution or any other valid reason shall be required to pay additional Water Conservation Fee to compensate for the quantum of water that could have been recharged by the unit. No Objection Certificate shall be valid for a period of 3 years in safe and semi critical areas and 2 years in critical and overexploited areas. The applicant shall apply for renewal of No Objection Certificate at least 90 days prior to expiry of its validity. Industries which are likely to cause ground water pollution e.g. tanning, slaughter houses, dye, chemical/petrochemical, coal washeries, other hazardous units etc. (as per Central Pollution Control Board list) need to undertake necessary measures to ensure prevention of ground water pollution (Annexure X). Recharge/injection of treated/untreated waste water within/outside the plant premises is strictly prohibited. Existing industries, which have already obtained No Objection Certificate and have implemented recharge measures as specified in the No Objection Certificate, shall be exempted from paying Water Conservation Fee. However, if the industry is going for expansion, Water Conservation Fee will have to be paid for the additional quantum of ground water withdrawal as per applicable rates. Existing industries, which have obtained No Objection Certificate and adopted pond(s) but have not been able to implement the specified volume of recharge due to various reasons, shall have an option to de‑adopt pond(s) and pay Water Conservation Fee within six months of the effectiveness of these guidelines. If at the time of renewal it is observed that the industry has not been able to comply with the recharge condition specified in the No Objection Certificate, the industry shall have to pay Water Conservation Fee in addition to the penalty as specified in the Environment (Protection) Act, 1986. Wherever feasible, requirement of water for greenbelt (horticulture) shall be met from recycled/treated waste water. If an existing well becomes defunct within the validity period of No Objection Certificate, the proponent shall construct a replacement well under intimation to the Central Ground Water Authority through the web portal. The defunct well shall be properly sealed (Annexure V). In case of change of ownership, new owner of the industry will have to apply for necessary changes in the No Objection Certificate with documentary proof within 45 days of taking over possession of the premises., Mining projects. All existing as well as new mining projects need to obtain No Objection Certificate for mine dewatering and/or ground water withdrawal through wells, if any, from Central Ground Water Authority. No Objection Certificate for abstraction of ground water shall be granted subject to the following conditions: Application for No Objection Certificate shall be accompanied by the following documents: (i) Approval from statutory bodies viz. Ministry of Environment, Forests and Climate Change or State Pollution Control Board or State Level Expert Appraisal Committee or State Level Environment Impact Assessment Authority; (ii) Certified mine lease map; (iii) Document showing ownership/lease of land; (iv) Mining plan approved by the concerned government agency/department; (v) Comprehensive report prepared by National Accreditation Board for Education and Training accredited consultant on ground water conditions in both core and buffer zones of the mine, depth‑wise and year‑wise mine seepage calculations, impact assessment of mining and dewatering, details of recycling, reuse and recharge, reduction of pumping with use of technology for mining and water management to minimise and mitigate the adverse impact on ground water, based on local conditions (format given in Annexure II). The water available from de‑watering operations shall be put to gainful use such as water supply, irrigation, dust suppression, mining process etc. Installation of digital water flow meter (conforming to Bureau of Indian Standards standard) in the abstraction structures shall be mandatory and intimation of the same shall be communicated to the Central Ground Water Authority through the web portal. Water flow meter reading shall be digitally recorded and submitted to the Central Ground Water Authority through the web portal. The proponent shall have to pay Water Conservation Fee based on quantum of ground water extraction as applicable. Construction of observation wells (piezometers) within the premises along the periphery, for monthly ground water level monitoring, shall be mandatory for mines drawing or proposing to draw more than 10 m³/day of ground water. Depth and aquifer zone tapped in the piezometer shall be commensurate with that of pumping well(s). The number of observation wells shall be specified in the No Objection Certificate. Detailed guidelines for construction of piezometers are given in Annexure IV. Monthly water level data shall be submitted to the Central Ground Water Authority through the web portal. Proponents drawing or proposing to draw ground water from 50 to less than 500 m³/day in safe and semi critical assessment units and those drawing or proposing to draw 20 to less than 200 m³/day of ground water in critical and over‑exploited assessment units shall install digital water level recorder in the observation wells for continuous monitoring of ground water levels. Depth to water levels shall be monitored at 12‑hour intervals and the digital water level recorder data shall be retrieved and submitted to the Central Ground Water Authority through the web portal. Proponents drawing or proposing to extract ground water to the tune of 500 m³/day or more in safe and semi critical areas and 200 m³/day or more in critical and over‑exploited areas would be required to install digital water level recorder with telemetry in the observation well for continuous monitoring of ground water levels. The server will be maintained by the supplier of the instrument and access shall be provided to Central Ground Water Authority. It shall be the responsibility of the proponent to provide User ID and password to Central Ground Water Authority. In addition, the proponent shall monitor ground water levels by establishing key wells in the core and buffer zones as specified. All mining units shall monitor quality of ground water from the abstraction structures. Water samples from bore wells/tube wells/dug wells shall be collected during April/May every year and analysed by NABL accredited laboratories for basic parameters (cations and anions), heavy metals, pesticides/organic compounds etc. Water quality data shall be made available to the Central Ground Water Authority through the web portal. The No Objection Certificate shall be valid for a period of 2 years from the date of issue. The proponent shall apply for renewal of No Objection Certificate at least 90 days prior to expiry of its validity., Infrastructure projects requiring dewatering or use of ground water for construction. New infrastructure projects or residential buildings may require dewatering during construction activity and/or use ground water for construction. In both cases, applicants shall seek No Objection Certificate from Central Ground Water Authority before commencement of work. The No Objection Certificate will be granted subject to the following conditions: Application for No Objection Certificate shall be accompanied by the following documents: (i) Approval letter from statutory bodies viz. Ministry of Environment, Forests and Climate Change or State Pollution Control Board or State Level Expert Appraisal Committee or State Level Environment Impact Assessment Authority or Urban/Rural/Area Development Authority; (ii) In cases where dewatering of more than 100 m³/day is required, hydrogeological report prepared by National Accreditation Board for Education and Training accredited consultant on the ground water situation in the area giving detailed plan of pumping, proposed usage of pumped water and comprehensive impact assessment of the same on the ground water regime, highlighting environmental risks and proposed management strategies; (iii) An affidavit on non‑judicial stamp paper of Rs 10 regarding non‑availability of water from any other source for construction in safe and semi critical areas; (iv) Certificate from the government agency regarding non‑availability of treated sewage water for construction within 10 km radius of the site in critical and over‑exploited areas. The proponent shall be required to adopt roof top rain water harvesting in the project premises after completion of building construction. Recharge measures shall not be implemented in areas prone to water logging (water level within 5 metres below ground level). The proponent will have to pay Water Conservation Fee based on quantum of ground water extraction as applicable. The proponent shall carry out regular monitoring as mentioned below: Parameter to be monitored – Frequency – Submission to the Central Ground Water Authority: Dewatering discharge rate (using a digital water flow meter) – Continuous – Through the web portal; Water levels in the surrounding area by constructing observation wells (piezometers) in consultation with the concerned Regional Office of Central Ground Water Board – Fortnightly – Through the web portal. Monitoring records and results should be retained by the proponent for up to two years, for inspection or reporting as required by Central Ground Water Authority. No Objection Certificate shall be valid for the specific period as per the detailed proposal submitted by the project proponent., Paragraph 2.4 deals with agriculture sector and says that it shall be exempted from obtaining No Objection Certificate for ground water withdrawal but places responsibility upon concerned State Governments to undertake sustainability of ground water source. Paragraph 2.5 deals with the abstraction of saline/contaminated ground water. It is said that abstraction of saline/contaminated ground water for use by industries, dewatering by infrastructure or mining projects including those located in over‑exploited areas would be encouraged. The list of such assessment units having saline ground water at all depths as per the latest assessment of dynamic ground water resources will be made available by the Authority in the web‑based application system. Packaged drinking water units shall be encouraged to be set up in quality‑affected areas. All precautions must be taken for protection of environment, especially fresh water aquifers in and around the area. Other conditions for granting No Objection Certificate would be the same as mentioned in Section 2.3 for industries and infrastructure projects, respectively., Paragraph 2.6 provides provisions for Water Conservation Fee (hereinafter referred to as Water Conservation Fee), in compliance of Tribunal's order dated 13 July 2017 in OA No. 200/2014 dealing with Ganga matter, wherein it was observed that all users must be required to pay for ground water extraction. The rates of Water Conservation Fee were determined by Central Ground Water Authority after considering factors namely: (i) Cost of implementation of rainwater harvesting/artificial recharge structures by industries, infrastructure units, mines which have been mandated to implement the same as per No Objection Certificates granted earlier; and (ii) charges being levied by various State Governments for use of surface water by industries., On 18 December 2018, leading cases OA No. 176/2015, OA No. 59/2012, OA No. 108/2013, OA No. 179/2013, OA No. 484/2015, OA No. 327/2018, OA No. 115/2017, OA No. 411/2018, OA No. 613/2017, Mohd. Javed Asghar vs. M/s Upper Ganges Sugar and Industries Ltd. (Distillery Unit) & Others, OA No. 614/2017, Mohd. Javed Asghar vs. State of Uttar Pradesh & Others and Appeal No. 67/2015 came up before the Tribunal. After hearing, order was uploaded on 3 January 2019. The Tribunal noted the massive abstraction of ground water and failure of statutory body like Central Ground Water Authority in effective regulation, consistent depletion of ground water level worsening the condition, and examined Guidelines 2018. In paragraphs 22 to 27 of the order dated 3 January 2019, the Tribunal said: It is clear that rather than laying down stricter norms for extraction of ground water for commercial purposes and putting in place a robust institutional mechanism for surveillance and monitoring, extraction of ground water has been liberalised adding to the crisis, unmindful of the ground situation and likely impact on environment. No data has been furnished to justify the policy reversal by way of uncontrolled liberalised drawal of groundwater in over‑exploited, critical and semi‑critical (OCS) areas. The provisions of the impugned notification show that drawal of ground water has been, for all practical purposes, made unregulated in all areas, including the OCS areas. The so‑called regulation is illusory. The conditions are incapable of meaningful monitoring, as shown by past experience. The Water Conservation Fee virtually gives licence to harness ground water to any extent even in OCS areas. There is no institutional mechanism to monitor removal and replenishment of ground water. Delegation provision is virtual abdication of authority. There is no check on injection of pollutants in the ground water in the impugned notification. There is no provision with regard to check on water quality and its remediation, if there is contamination. The Tribunal is satisfied that the Notification dated 12 December 2018, tested on the Precautionary Principle, Sustainable Development and Inter‑generational Equity Principles, is unsustainable in law and, instead of conservation of ground water which is necessary for providing access to drinking water in OCS areas as well as other environmental needs, it will result in fast depletion of ground water and damage to water bodies and will be destructive of the fundamental right to life under Article 21 of the Constitution of India., Consequently, the Tribunal directed that the impugned Notification may not be given effect in view of serious shortcomings so that an appropriate mechanism can be introduced consistent with the needs of environment. The Tribunal directed the Ministry of Environment, Forests and Climate Change to constitute an Expert Committee including representatives from Indian Institute of Technology Delhi, Indian Institute of Technology Roorkee, Indian Institute of Management Ahmedabad, Central Pollution Control Board, National Institution for Transforming India and any other concerned agency or department to examine the issue of appropriate policy for conservation of ground water with a robust institutional mechanism for surveillance and monitoring, with a view to enhance access to ground water for drinking purposes in over‑exploited, critical and semi‑critical areas by way of appropriate replenishment practices which can be properly accounted and measured, as well as to sustain floodplains of rivers in terms of flow and other water bodies. The Tribunal also directed the Ministry of Environment, Forests and Climate Change and the Ministry of Water Resources to finalise the issue inter‑se, with regard to ground water reserve and its quality. The Committee was to be constituted in two weeks and report was to be given by the Committee in two months. The Committee was also required to indicate projection of its impact study in the light of projected data for the next 50 years (in phased manner with action plan for each decade). Thereafter, the concerned Ministry was to issue fresh guidelines and submit report to the Tribunal on or before 30 April 2019., In paragraph 32, the Tribunal directed the Central Pollution Control Board to constitute a mechanism to deal with individual cases of violations of norms, as existed prior to Notification of 12 December 2018, to determine the environmental compensation to be recovered or other coercive measures to be taken, including prosecution, for past illegal extraction of ground water, as per law. All matters relating to illegal extraction of ground water by individuals are disposed of with these directions. The Tribunal noted that all individual matters relating to extraction of ground water illegally stood disposed of. However, when the matters were next listed on 7 May 2019, the Tribunal found that the Ministry of Environment, Forests and Climate Change had failed to perform its duty and directions issued by the Tribunal on 3 January 2019 were not complied. The Committee, which was required to be constituted within two weeks, was actually constituted only on 29 March 2019. The Tribunal deprecated it and said: We do not appreciate such attitude of Government departments when under a statutory enactment, violation of orders of this Tribunal is a criminal offence. The Committee has not acted promptly and no significant progress has been brought to our notice. Lack of sensitivity to serious issues of environment such as fast depleting ground water is a matter of concern., The Tribunal directed the Committee to submit report positively by 30 June 2019, failing which the Joint Secretary concerned of the Ministry of Environment, Forests and Climate Change was directed to remain present to explain why action was not taken for violation of the Tribunal's orders. Further, a report dated 30 April 2019 submitted by the Central Pollution Control Board via e‑mail was also considered wherein it had taken the stand that assessment of environmental compensation for illegal extraction of ground water has been done. This report was not accepted by the Tribunal, giving the following reasons: (i) The over‑exploited, critical and semi‑critical areas which need regulation for conservation of ground water cannot be further treated separately as notified or non‑notified. Conservation of ground water in the said areas is of equal necessity. Depletion of ground water in the said areas affects the sub‑terranean flow and results in contamination of ground water and also poses a potential danger for drying up of important natural resource in violation of the principle of inter‑generational equity; (ii) The compensation to be recovered for illegal extraction has to be deterrent especially when it is for commercial or industrial purpose and linked to the quantum of ground water extracted and the period for which such extraction takes place; (iii) Scenario analysis with robust scientific logic is required for all the classes considered in comparable terms which has not been done in the present report. The Central Pollution Board was directed to submit a fresh report on or before 30 June 2019., Referring to ground water development on the basis of Guidelines 2015 for existing industries, infrastructure in the said mining projects, the Tribunal said that it did not find any safeguards suggested to address the concern earlier expressed against depleting ground water. It further held: The mandate of Central Ground Water Authority is not exploitation of ground water in depleted areas but to conserve it. Any policy which results in further depletion obviously cannot be permitted in over‑exploited, critical and semi‑critical areas. Central Ground Water Authority is free to lay down and follow stringent norms to ensure that there is no depletion of ground water in over‑exploited, critical and semi‑critical areas and that depleted water level is improved and replenished. Any policy has to be in that direction and not in reverse direction as is unfortunately being attempted by Central Ground Water Authority, as noticed in earlier orders., The Tribunal also observed that the Ministry of Environment, Forests and Climate Change must come up with an appropriate policy. Strangely, the Ministry of Environment, Forests and Climate Change took the plea that Central Ground Water Authority had not cooperated, which caused delay. This stand was denied by Central Ground Water Authority. In this situation, the Tribunal observed that the fact remains that failure is on the part of both. Entrusted with the responsibility of protecting ground water, Central Ground Water Authority and all other authorities must cooperate and collaborate in the exercise to come out with a policy which must result in checking further depletion of ground water and enhance replenishment. The Tribunal directed concerned Secretaries to monitor compliance of directions, having regard to the importance of the issue., Mistakenly, the Registry failed to notice that individual matters were already disposed of by order dated 3 January 2019, and thus should not have been listed on 7 May 2019, except the matter relating to status of compliance of directions of the Supreme Court in National Green Tribunal, to check depletion of ground water level in the country. This mistake occurred on 23 August 2019 also., In the meantime, pursuant to orders dated 3 January 2019 and 7 May 2019, the Ministry of Environment, Forests and Climate Change filed affidavit on 18 July 2019. Report of Central Pollution Control Board dated 26 June 2019 was also filed. Both were taken into consideration on 23 August 2019 and order of the Tribunal was uploaded on 11 September 2019., The listing of disposed matters was noticed by the Tribunal in the order dated 11 September 2019, hence it was clarified that all the above matters be treated as disposed of and shall be dealt with by the concerned regulatory authority in accordance with law. The relevant extract of order dated 11 September 2019 passed in OA No. 59/2012 (MA No. 34/2016 & MA No. 190/2016), OA No. 108/2013, OA No. 179/2013, Appeal No. 67/2015 with MA No. 107/2019, OA No. 176/2015, OA No. 484/2015, OA No. 327/2018, OA No. 115/2017, OA No. 411/2018, OA No. 613/2017 and OA No. 614/2017 reads as under: These matters involve the issue of conservation of ground water. Vide order dated 3 January 2019 in OA No. 176/2015, the Tribunal directed as follows: The Central Pollution Control Board may constitute a mechanism to deal with individual cases of violations of norms, as existed prior to Notification of 12 December 2018, to determine the environmental compensation to be recovered or other coercive measures to be taken, including prosecution, for past illegal extraction of ground water, as per law. All matters relating to illegal extraction of ground water by individuals are disposed of with these directions. In view of the above, the matters having been disposed of were wrongly listed on 7 May 2019 and on 23 August 2019. They shall be treated and disposed of and may be dealt with by the concerned regulatory authorities in accordance with law. The report of Central Pollution Control Board dated 26 June 2019 may be following on the subject of assessment of recovery of compensation for illegal drawal of ground water apart from prosecution and stoppage of illegal drawal of ground water in accordance with law., A separate order in OA No. 176/2015 (MA No. 133/2015) was uploaded on the issue of conservation of ground water. Considering the said issue, the Tribunal found that the report was deficient on the issue of prevention or depletion of ground water and the same was not addressed at all. No effective enforcement mechanism of conditions, subject to which ground water extraction may be allowed in over‑exploited, critical and semi‑critical areas, was provided. Mere condition of recharge without clear strategy of enforcement was not found appropriate and adequate safeguard for permitting extraction of ground water. The report left many issues for being considered. Some aspects of the report were considered in paragraphs 20 and 21 of the order dated 11 September 2019 passed in OA No. 176/2015, which read as under: The report of the Central Pollution Board dated 26 June 2019 deals with methodology for assessing environmental compensation, formula for environmental compensation for illegal extraction of ground water, environmental compensation rate for drinking and domestic use, for institutional activity, commercial complexes, townships etc., environmental compensation rate for packaged drinking water units, for mining, infrastructure and dewatering projects, for industrial units, deterrent factors to compensate losses and environmental damage and deterrent factor. Formula for Environmental Compensation for illegal extraction of ground water is as follows: Environmental Compensation for Ground Water = Water consumption per day × Environmental Compensation rate for illegal extraction of ground water × No. of Days × Deterrent Factor, where water consumption is in m³/day and the rate is in rupees per cubic metre. All other details can be seen from the report which is available on the website of the Central Pollution Board., The committee gave the following recommendations: 1. In case of fixation of liability, it always lies with the current owner of the premises where illegal extraction of groundwater is taking place. 2. Violation duration may be assumed as at least one year in case where no evidence for period of installation of borewell could be established. 3. For illegal industrial ground water abstraction, where metering system is not available, water consumption may be estimated as per consent conditions imposed by State Pollution Control Board/ Pollution Control Committee. 4. Water intensive industries should only be permitted in safe, semi‑critical and critical area, and should not be allowed to establish new industries in over‑exploited area. 5. Water in over‑exploited area should be permitted only for drinking purposes and industries established in this area without prior consent or No Objection Certificate from Central Ground Water Authority or another concerned department must be closed down with immediate effect. No expansion in existing industrial activity should be permitted, irrespective of additional water demand arises or not. 6. Present categorisation of area (over‑exploited, critical and semi‑critical), as per Central Ground Water Authority shall be considered for calculation of environmental compensation, regardless of the area category when the period of violation started. 7. In case of all existing cases having more than 5000 kLD ground water demand, permission may be given only after examining scientific assessment of water availability and assessing inter‑generational equity by Central Ground Water Authority. 8. The industrial units should be directed to adopt state‑of‑the‑art technologies, use of surface water, treated waste water and reduce specific water consumption, thereby ground water demand is reduced by 10 % over three years’ period. The industries also be encouraged to create facilities for storage of excess storm water and adequate measures such as groundwater recharge as well as restoration of lakes/ponds in the vicinity of the industry. 9. In addition, all repeated violations will attract environmental compensation at 1.25 times the previous environmental compensation. 10. Authorities assigned for levy environmental compensation and taking penal action are listed below: (a) To seal the illegal borewell/tube well to stop extraction of water and further closure of project – District Magistrate; (b) To levy Environmental Compensation for illegal extraction of ground water as per prescribed method – District Magistrate; (c) To levy environmental compensation on industries involved in illegal abstraction of ground water, as per the method prescribed in the report of Central Pollution Board – CPCB/SPCB/PCC; (d) Prosecution of violator – Central Ground Water Authority under Environment (Protection) Act, 1986 or Water (Prevention and Control of Pollution) Act, 1974., The Tribunal then constituted another Committee comprising of Joint Secretary, Ministry of Environment, Forests and Climate Change, concerned Joint Secretary, Ministry of Water Resources, Central Ground Water Board, National Institute of Hydrology, Roorkee, National Remote Sensing Center, Hyderabad and Central Pollution Board to go into the following questions: (a) Steps required to be taken for preventing depletion of ground water; (b) Robust monitoring mechanism to ensure that no ground water is unauthorisedly extracted, including review of manning and functioning of Central Ground Water Authority; (c) Robust mechanism to monitor conditions laid down for grant of permission for extraction of ground water; (d) Recommendations in the report of the Central Pollution Board dated 26 June 2019 referred to above., The Tribunal, however, accepted the report of Central Pollution Board with regard to compensation as an interim arrangement and directed that the same may be acted upon by regulatory authorities and compensation be recovered from violators, for the period of violation, which may be assessed on a case‑by‑case basis. Further, the Tribunal said that the report of Central Pollution Board that water‑intensive industries can be allowed even in semi‑critical and critical area without any further safeguards may not be acted upon, till further orders., The association of Industrial Manufacturers, Ghaziabad filed I.A. No. 640/2019 in OA No. 176/2015, seeking review of order dated 11 September 2019 on the ground that the order has caused prejudice to them, hence needs reconsideration. This I.A. was considered on 10 October 2019 and rejecting the same, the Tribunal said: Since the over‑exploited, critical and semi‑critical areas have been found to be seriously affected by over‑drawl of ground water, regulation of such drawl for commercial purposes cannot be dispensed with for any industry even in industrial area. Availability of water for drinking is a first priority. The Precautionary principle, Sustainable Development principle and Inter‑generational equity are part of life and in absence of replenishment of ground water, unregulated drawl thereof cannot be held to be a right of any commercial entity. Shortage of availability of water for commercial purposes cannot be remedied by drawl of groundwater in over‑exploited, critically exploited and semi‑critical exploited (OCS) areas. Water is certainly a scarce resource and the industry has to put up with such scarcity. It is for the industry and the concerned authorities to find out alternative ways and means for sustenance of the industries instead of permitting indiscriminate drawl of groundwater in such areas till situation improves. Alternative means may be shifting to areas where water is not scarce or to processes where water is not required. As already noted, groundwater is depleting in such areas and measures are required to check such depletion. If industries continue to draw ground water without No Objection Certificate from Central Ground Water Authority as per current guidelines and orders of this Tribunal in OCS areas, the industries will have to face legal consequence of such illegal action., As per directions contained in order dated 11 September 2019, report submitted on 16 March 2020 was placed before the Tribunal along with OA No. 176/2015 on 13 July 2020. It was brought to the notice of the Tribunal that illegal extraction of ground water is neither being effectively checked nor there is any recovery of compensation from defaulters. An article published in Times of India dated 6 June 2017 stated that four crore litres of water was being illegally extracted in Gurgaon daily. Similar complaints of huge quantity of ground water extraction by tanker mafias were reported in National Capital Territory of Delhi which require constant action by regulatory authorities and robust mechanism for effective review. A news item was published in daily newspaper Tribune on 15 July 2020 under the title \Decline in water table caused crack in Mahendragarh Field: Experts\.
id_481	9	Drying of main rivers including the Ganga due to depletion of ground water, water bodies running dry at an alarming rate and extraction of ground water resulting in a fall of the water table beyond the level of replenishment, and various studies and articles published in different reputable magazines were considered by the National Green Tribunal in its order dated 20 July 2020., In respect of the State of Uttar Pradesh, particularly the district of Gautam Buddha Nagar, the National Green Tribunal considered a complaint of rapid depletion of ground water due to large‑scale extraction by various commercial entities, including hotels in Ghaziabad, Moradabad and Agra. Referring to earlier orders, including the order dated 3 January 2019, the Tribunal observed that preparation of guidelines without studying impact assessment would be contrary to the principle of sustainable development. The vulnerable features, on account of which the 2018 Guidelines were criticised and regulatory authorities were directed not to give effect to them, were noted in paragraph 15 of the judgment dated 20 July 2020 as follows:, 15. In its order of 3 January 2019, the National Green Tribunal disapproved the notification, holding that ultimately it is the result of all the measures, shown by the data on the ground, which has to be the basis of any policy and not merely the laying down of measures. It was observed that the notification granted exemptions in Over‑Exploited, Critical and Semi‑critical (OCS) areas without regard to the impact on ground water or a roadmap for controlling the falling ground level. Doing so without impact assessment was against sustainable development. Some further vulnerable features of the notification were noted as follows:, Exemption of individual households to draw ground water from a single dug well, bore well or tube well through a delivery pipe of up to 1 inch diameter and certain other categories, even if there is an existing supply of drinking water. Beyond this exemption, ground water withdrawal can be permitted on the basis of a No Objection Certificate where water supply is not adequate, subject to certain conditions. Infrastructural projects, including water supply agencies, could be allowed to obtain a No Objection Certificate; these industries are listed in Annexure 187. Guidelines must show an application of mind as to how the policy adopted by regulatory authorities would prevent extraction of water beyond the desired level in OCS areas., The National Green Tribunal also noted its order dated 7 May 2019, considering the Central Pollution Control Board report dated 30 April 2019, with regard to the compensation regime, which was found unsatisfactory. The CPCB was directed to give a fresh report observing that compensation to be recovered for illegal extraction must be deterrent, especially when it is for commercial or industrial purpose, and should be linked to the quantum of ground water extraction and the period for which such extraction takes place. It was also observed that scenario analysis with robust scientific logic is required for all the classes considered in comparable terms., The Tribunal considered an affidavit dated 16 March 2020 filed by the Central Ground Water Authority for the Ministry of Jal Shakti and pointed out that the committee report annexed to the affidavit remains entirely unsatisfactory. The observations made in paragraph 24 of the judgment dated 20 July 2020 are:, 24. The matter is being taken up in continuation of the order dated 11 September 2019. We have heard Shri Vikramjit Banerjee, Additional Solicitor General appearing for the Ministry of Jal Shakti and the Central Ground Water Authority. We have considered the CGWA affidavit dated 16 March 2020 filed for the Ministry of Jal Shakti which annexes the report of the committee purporting to be in compliance with the Tribunal order dated 11 September 2019. The situation continues to be entirely unsatisfactory. Several issues in the report are the same which were rejected in the order dated 3 January 2019. The Ministry of Jal Shakti appears to be avoiding its constitutional obligation of complying with the judgment of the Supreme Court of India and repeated directions of this Tribunal. Surprisingly and regretfully, a wholly untenable prayer is made that the Tribunal should review its earlier orders, which have attained finality, never having been challenged. It is thus clear that there is no intent or effort to comply with the said orders. The report is not in compliance with this Tribunal’s orders but rather largely violates the spirit of the mandate., 188. Several issues in the report were the same as already rejected by the National Green Tribunal in its order dated 3 January 2019. The Ministry of Jal Shakti was found avoiding its constitutional obligation of complying with the judgment of the Supreme Court and repeated directions of the Tribunal. Observing that the report was not in compliance with the Tribunal’s earlier orders, rather violating their spirit, the Tribunal gave its reasons in paragraphs 25 to 30 as follows:, 25. The CGWA affidavit states that the restriction on extraction of ground water in OCS areas is likely to have an adverse impact on industrial production, employment opportunities and GDP of some states. It seeks vacation of the Tribunal order dated 3 January 2019, so as to issue No Objection Certificates for ground water extraction as per the proposed guidelines or as per the 2015 guidelines., 26. As mentioned earlier, the report practically reiterates the regime earlier brought out on 12 December 2018, which was rejected by the Tribunal on 3 January 2019 as being against sustainable development and the mandate of law laid down by the Supreme Court of India. We do not find it necessary to reproduce the report in full but refer to and comment upon the main aspects thereof. The report states, contrary to the Supreme Court judgment, that water being a State subject, initiatives on water management including conservation and water harvesting are primarily the responsibility of the States, with the Government of India providing technical and financial assistance. However, the report also mentions that the Central Ground Water Authority is vested with the regulation, control, management and development of ground water in the country and has issued guidelines, including the 2015 and 2018 guidelines. For the same reasons for which the notification dated 12 December 2018 was found unacceptable, the proposed recommendations liberalising ground water extraction across the board to certain categories without any impact assessment and effective checks are against law. Exemptions for infrastructure projects, micro, small and medium enterprises or other industries or commercial purposes except drinking water, where supply is not otherwise available in water‑stressed areas, will be against sustainable development and the public trust doctrine unless individual impact assessment is conducted and permitting such extraction is found viable. There has to be a listing of priorities within limited resources and unlimited demands, and impact assessment of such activity; the policy of permitting extraction has to be based on carrying capacity reflected in water levels. No roadmap has been provided on how the new regime will check and neutralise falling ground water levels. There is neither a claim that in the last 24 years of regulation by the CGWA ground water levels have improved, nor any projection for future improvement. Data compiled by Niti Aayog in its 2018 composite water index report is clear evidence of over‑exploitation at several locations. Moreover, the CGWA itself has surveyed and identified 1,868 out of 6,585 assessment units as OCS areas. Its failure lies in not having an effective regulatory regime and adequate implementation of conditions for drawal of ground water for commercial purposes, as shown by falling levels and reports of mafias engaged in illegal drawal in OCS areas without effective check. Further liberalisation will defeat the purpose of having the CGWA and be contrary to the public trust doctrine. Effective steps for protecting ground water in OCS areas against purely commercial considerations are critical. The report observes that ground water is a replenishable resource and aquifer zones from which ground water is extracted get replenished annually from rainfall and other sources. It therefore suggests that extraction by various users, including industry and agriculture, be allowed in safe, semi‑critical and critical areas to create space in the aquifers for replenishment, while in over‑exploited areas extraction exceeds recharge. The Committee was of the view that it may not be appropriate to club semi‑critical and critical with over‑exploited assessment units, provided necessary measures to compensate the ground water withdrawal are ensured and at no point does extraction exceed 100 % of recharge. However, the statement that withdrawal to the extent of replenishment must be done to avoid wastage of rain water is contradicted by continually falling ground water levels in OCS areas. There is no question of wastage of rain water where water level is falling; withdrawal has to be reduced not only to the extent of replenishment but to enhance ground water to safe and sustainable levels. Replenishment and raising of water level are both important in OCS areas. Falling groundwater levels dry up water bodies and reduce river flow. The Central Pollution Control Board website acknowledges 351 river stretches as polluted for reasons including non‑availability of flow, which affects aquatic life, wildlife, the food chain and the entire ecosystem. The report states, under the heading ‘Action being taken for preventing depletion of groundwater and recharge’, that the focus is to create a balanced approach with emphasis on demand‑side management and practical regulation that does not impede development. The Committee was also apprised that water being a State subject, initiatives on water management including conservation of ground water are primarily the responsibility of the States, with the Central Government supplementing through technical and financial assistance. There is a clear contradiction in mentioning a need for a balanced approach on the one hand and emphasis on demand‑side management on the other; such an approach is against the mandate of sustainable development, including the precautionary principle, inter‑generational equity and the public trust doctrine. The report’s recommendation that extraction of ground water by existing industries need not be checked as it may obstruct growth is an argument against the principle of sustainable development. No absolute right exists for existing industries to continue drawing ground water without regard to depleting levels, as held even in 2015. Such extraction cannot be at the cost of the environment and must respect intra‑ and inter‑generational, precautionary and sustainable development principles. Development and growth must be undertaken but not without preserving sustainable ground water levels. The recommendation for a robust monitoring mechanism by restructuring the CGWA, strengthening manpower up to the district level, may be looked into by the concerned authorities and action taken for implementation to ensure an effective regulatory mechanism as per the mandate of law. Our observations are the same with regard to a robust mechanism to monitor conditions laid down for grant of permission for extraction of ground water. The recommendation on quantum of compensation and action against violators is contrary to CPCB recommendations for closing down industries in over‑exploited areas for illegal extraction and cannot be accepted. The present proposal is against stringent action against violators committing criminal offence which cannot be appreciated. To regulate and control ground water extraction in India, the overriding principle of carrying capacity has to apply to every category of commercial use of ground water, including industrial use, mining projects and infrastructure projects. Compensation for unlawful ground water extraction must be based on restitution and deterrence. The water rates in the report for various categories including packaged water, beverages and mining infrastructure projects in OCS areas must be of a deterrent nature because ground water extraction for such purposes is not permissible beyond carrying capacity. The proposed rates do not meet such test. Thus, unregulated drawal of water being a criminal offence under the law, compensation may be recovered as per the CPCB report dated 26 June 2019 until any further appropriate mechanism is prepared. The 2015 CGWA guidelines and the Ministry of Environment, Forest and Climate Change report itself provide that ground water extraction for commercial purposes was impermissible in OCS areas. Instead of moving in that direction, the present proposal moves in the reverse direction which is not permissible., 27. In terms of the Tribunal’s previous orders (dated 3 January 2019, paragraphs 29 and 31, and dated 11 September 2019, paragraph 24), the core issues that are required to be considered are: (a) Whether a robust institutional monitoring mechanism has been evolved to define assessment‑unit‑wise carrying capacity and accordingly set target replenishment levels and plans for permissible levels of extraction in OCS areas; to assign individual target replenishment levels as a condition for granting extraction permits and to audit such replenishment by those extracting ground water; to monitor real‑time implementation of conditions for permitting extraction; to withdraw permits for extraction failing target replenishment levels; and to sustain river flows in terms of e‑flows and other water bodies. (b) Whether there is a provision for an impact study in light of projected data for the next 50 years in a phased manner with a decade‑wise action plan. (c) Whether an effective and measurable plan has been prepared for preventing depletion and unauthorized extraction of ground water backed by the requisite mechanism in the form of manning and effective functioning of the CGWA so as to ensure sustainable ground water management in terms of the Supreme Court mandate by which the CGWA was created. (d) Whether the compensation regime against violators is adequately deterrent., 28. The answer is no. If implemented, the current report would nullify the mandate of the Supreme Court by seeking to deregulate ground water extraction, ignoring its impact on e‑flows of rivers, water bodies and overall sustainable management of scarce natural resources with emphasis on industrial development, without balancing development and environment. Irreversible damage cannot be allowed by extracting water beyond safe levels without impact assessment., 29. We therefore hold that, as per the mandate of sustainable development under Section 20 of the National Green Tribunal Act, 2010, which has been held to be part of the right to life under Article 21 of the Constitution of India, the regulatory authority must direct its policy towards preventing further depletion of and upgrading the ground water levels based on impact assessment. Extraction can neither be unregulated nor allowed across the board without individual consideration. For this purpose, there is a need to compile data by mapping all assessment units individually in terms of current and estimated water level, drawal and replenishment and to prepare a management plan for all such units. The Central Ground Water Authority, being a statutory regulator for the country, has to exercise overriding power in the form of statutory regulatory orders. It may utilise its own network and, to the extent found viable, the network of existing authorities such as District Magistrates, Environment Departments, Departments of Irrigation and Public Health etc. Ground water assessment has to be done annually and placed on the respective websites of the districts or states. Any extraction of ground water has to be permitted keeping in mind availability of ground water ensuring that there is no further depletion and that ground water level remains at a safe level., 30. At this stage, we note that the regulatory mechanism of the Central Ground Water Authority has not been adequate, as the report also notes. The CGWA does not appear to have requisite strength, enforcement mechanism or strategies. This may be one of the reasons for failure in effective monitoring, defeating the object of the law. This has led to a large number of petitions before this Tribunal pointing out that illegal ground water extraction was rampant. The plans for rain water harvesting and many other steps remain largely on paper. Remedial measures need to be taken in view of serious challenges in protection of ground water level, to save rivers and water bodies and the entire environmental chain., 31. Thereafter, the following directions were issued in paragraph 39: Directions: (a) The Ministry of Jal Shakti may ensure requisite manning and effective functioning of the Central Ground Water Authority so as to ensure sustainable ground water management in terms of the Supreme Court mandate by which the CGWA was created. (b) The CGWA and the Ministry of Jal Shakti shall comply with the directions of this Tribunal in orders dated 3 January 2019, 7 May 2019 and 11 September 2019, to have a meaningful regulatory regime and institutional mechanisms for preventing depletion and unauthorized extraction of ground water and for sustainable management of ground water in OCS areas. Regard must be had to water availability and safe levels to which drawal can be allowed, especially for commercial purposes, based on available and assessed data in each assessment unit. Procedures for assessment of individual applications and institutional mechanisms may be clearly laid down. (c) As per orders dated 3 January 2019, an impact study shall be undertaken in light of projected data for the next 50 years in a phased manner with a decade‑wise action plan. (d) There must be no general permission for withdrawal of ground water, particularly to any commercial entity, without an environmental impact assessment of such activity on individual assessment units in cumulative terms covering carrying capacity aspects by an expert committee. Such permission shall be based on Water Management Plans prepared in terms of this order based on mapping of individual assessment units. Any permission shall be for specified times and specified quantity of water and not in perpetuity, and shall be necessarily subject to digital flow meters which cannot be accessed by proponents, with mandatory annual calibration by an authorized agency at the proponent’s cost. An annual review by independent expert evaluation must audit and record ground water levels as well as compliance with the conditions of the permission. Such audits must be published online for transparency and to track compliance and year‑on‑year change in ground water levels, and swift action taken against those who fail audit, including withdrawal of permission, blacklisting, initiation of prosecution and recovery of deterrent compensation as per the CPCB regime. Records must be maintained online for a sufficient and reasonable time. (e) As observed in paragraph (a) above, all OCS assessment units must undergo water mapping. Water Management Plans need to be prepared for all OCS assessment units in the country based on the mapping data, starting with over‑exploited blocks. The Water Management Plans, data on water availability or scarcity and policy of the CGWA must be uploaded on its website for transparency and public involvement. Such exercise may be done expeditiously, preferably within the next three months., 32. Interestingly, the Ministry of Jal Shakti, after referring to earlier orders and the order dated 20 July 2020 passed by the Tribunal, issued a fresh notification dated 24 September 2020, published in the Gazette of India (Extraordinary) dated 24 September 2020, laying down Guidelines to regulate and control ground water extraction in India, superseding all earlier Guidelines issued by the CGWA (hereinafter referred to as Guidelines 2020). These Guidelines have come into force from the date of publication in the Gazette, i.e., 24 September 2020, and shall have pan‑India applicability., 33. Guidelines 2020 state that ground water abstraction in States or Union Territories that are not regulating ground water abstraction shall continue to be regulated by the CGWA. Where States or Union Territories have issued their own ground water abstraction Guidelines that are inconsistent with the CGWA Guidelines, the provisions of the CGWA Guidelines will prevail. However, if the State or Union Territory Guidelines contain more stringent provisions than the CGWA Guidelines, such provisions may also be given effect by the State or Union Territory authorities, in addition to those contained in the CGWA Guidelines. States may suggest additional conditions or criteria based on local hydro‑geological situations, which shall be reviewed by the CGWA/Ministry of Jal Shakti, Government of India before acceptance. All new or existing industries, industries seeking expansion, infrastructure projects and mining projects abstracting ground water, unless specifically exempted under paragraph 1.0 below, will be required to seek a No Objection Certificate from the CGWA or the concerned State/UT Ground Water Authority, as the case may be. Guidelines 2020 also require that water management plans be prepared by all State Ground Water Authorities or organisations for all over‑exploited, critical and semi‑critical assessment units, starting with over‑exploited units., 34. Paragraph 1.0 of Guidelines 2020 deals with exemptions from seeking a No Objection Certificate. It is similar to the earlier exemption clause, with the addition that industrial units in the category of micro and small enterprises drawing less than 10 cubic metres per day are now included in the exempted categories. The exempted categories are: (i) Individual domestic consumers in both rural and urban areas for drinking water and domestic uses; (ii) Rural drinking water supply schemes; (iii) Armed Forces establishments and Central Armed Police Forces establishments in both rural and urban areas; (iv) Agricultural activities; (v) Micro and small enterprises drawing ground water less than 10 cubic metres per day., 35. For drinking and domestic use for residential apartments, group housing societies or government water supply agencies in urban areas, the procedure for a No Objection Certificate is provided in paragraph 2.0. For new and existing wells where the government water supply agency is unable to supply the requisite amount of water in the area, a No Objection Certificate shall be granted subject to the following conditions: (i) Installation of sewage treatment plants shall be mandatory for all residential apartments or group housing societies where ground water requirement is more than 20 m³ per day. The water from the sewage treatment plant shall be utilised for toilet flushing, car washing, gardening etc.; (ii) The No Objection Certificate shall be valid for a period of five years from the date of issue or until such time local government water supply is provided to the project area, whichever is earlier. In case the project proponent receives water supply from the concerned local government water supply agency during the validity of the No Objection Certificate, intimation regarding availability of public water supply shall be sent by the proponent to the CGWA and the No Objection Certificate will be cancelled by the Authority. In other cases, the proponent will apply for renewal of the No Objection Certificate ninety days before the expiry of the certificate; (iii) Proponents shall be liable to pay ground water abstraction charges for the quantum of ground water proposed to be extracted, as per rates mentioned in Table 5.1., 36. Paragraph 3.0 exempts the agriculture sector from obtaining a No Objection Certificate for ground water extraction. For commercial use, paragraph 4.0 of Guidelines 2020 states that no new major industry shall be granted a No Objection Certificate in over‑exploited assessment areas except as per the policy Guidelines., 37. Paragraph 4.1 deals with industrial use and provides that in over‑exploited assessment units, a No Objection Certificate shall not be granted for ground water abstraction to any new industry except those falling in the category of micro, small and medium enterprises (MSME). An exception is provided for grant of a No Objection Certificate for drinking or domestic use for workforce and green‑belt use by these new industries. Expansion of existing industries involving increase in the quantum of ground water abstraction in over‑exploited assessment units shall not be permitted. A No Objection Certificate shall not be granted to new packaged water industries in over‑exploited areas, even if they belong to the MSME category. Specific conditions for grant of a No Objection Certificate to industries are as follows: (i) The No Objection Certificate shall be granted only where local government water supply agencies are unable to supply the desired quantity of water; (ii) All industries shall be required to adopt the latest water‑efficient technologies to reduce dependence on ground water resources; (iii) All industries abstracting ground water in excess of 100 m³ per day shall be required to undertake an annual water audit through auditors certified by the Confederation of Indian Industry (CII), Federation of Indian Chambers of Commerce and Industry (FICCI) or National Productivity Council (NPC) and submit audit reports within three months of completion to the CGWA. All such industries shall be required to reduce their ground water use by at least 20 % over the next three years through appropriate means; (iv) Construction of observation wells (piezometers) within the premises and installation of appropriate water level monitoring mechanisms as mentioned in Section 15 shall be mandatory for industries drawing or proposing to draw more than 10 m³ per day of ground water. Monitoring of water level shall be done by the project proponent. The piezometer shall be constructed at a minimum distance of 15 m from the bore well/production well. Depth and aquifer zone tapped in the piezometer shall be the same as that of the pumping well(s). Detailed guidelines for design and construction of piezometers are given in Annexure II. Monthly water level data shall be submitted to the CGWA through the web portal; (v) The proponent shall be required to adopt rooftop rain water harvesting/recharge in the project premises. Industries likely to pollute ground water (chemical, pharmaceutical, dyes, pigments, paints, textiles, tannery, pesticides/insecticides, fertilizers, slaughter house, explosives etc.) shall store the harvested rain water in surface storage tanks for use in the industry; (vi) Injection of treated or untreated waste water into the aquifer system is strictly prohibited; (vii) Industries likely to cause ground water pollution such as tanning, slaughter houses, dye, chemical/petrochemical, coal washeries and other hazardous units (as per CPCB list) need to undertake necessary well‑head protection measures to ensure prevention of ground water pollution (Annexure III); (viii) All industries drawing ground water in safe, semi‑critical and critical assessment units shall be required to pay ground water abstraction charges as applicable per Tables 5.2A and 5.3A; (ix) All existing industries drawing ground water in over‑exploited assessment units shall be liable to pay ground water restoration charges as applicable per Tables 5.2B and 5.3B., 38. The documents to be submitted along with the application for grant of a No Objection Certificate include an Impact Assessment Report, which is mandatory where abstraction of ground water proposed is in excess of 100 m³ per day in over‑exploited, critical and semi‑critical areas. The report shall cover the ground water regime and also socio‑economic impacts and must be prepared by accredited consultants., 39. In respect of mining projects, paragraph 4.2 states that there is no restriction on grant of a No Objection Certificate even in over‑exploited areas. All existing as well as new mining projects will be required to obtain a No Objection Certificate for ground water abstraction. Since mining projects are location specific, there will be no ban on grant of a No Objection Certificate for abstraction of ground water for such projects in over‑exploited assessment units., 40. Specific conditions attached for issue of a No Objection Certificate for mining projects are as follows: (i) It shall be mandatory for all mining industries to ensure that water available from de‑watering operations is properly treated and used for irrigation, dust suppression, mining processes, recharge in downstream areas and for maintaining e‑flows in the river system; (ii) Construction of observation wells (piezometers) along the periphery of the premises for monthly ground water level monitoring shall be mandatory for mines drawing or proposing to draw more than 10 m³ per day of ground water. Depth and aquifer zone tapped in the piezometer shall be commensurate with that of the pumping well(s); (iii) In addition, the proponent shall monitor ground water levels by establishing observation wells in the core and buffer zones as specified in the No Objection Certificate; (iv) In case of coal and other base‑metal mining, the project proponent shall use advanced de‑watering technology (by construction of a series of de‑watering abstraction structures) to avoid contamination of surface water; (v) All mining units shall also monitor the water quality of mine seepage and mine discharge through NABL‑accredited or government‑approved laboratories and submit the results at the time of self‑compliance; (vi) All mining projects drawing ground water in safe, semi‑critical and critical assessment units shall be required to pay ground water abstraction charges as applicable per Table 5.4A.
id_481	10	All mining projects drawing ground water in over‑exploited assessment units shall be liable to pay ground water restoration charges as per Table 5.4 B. The documents required to be submitted along with the application for No Objection Certificate in respect of a mining project include, besides the mining plan approved by the concerned authorities and proposals for rain water harvesting/recharge within the premises, a comprehensive report made mandatory vide clause (c). Clause (c) reads as follows: Comprehensive report prepared by an accredited consultant on ground water conditions in both core and buffer zones of the mine, depth‑wise and year‑wise mine seepage calculations, impact assessment of mining and dewatering on ground water regime and its socio‑economic impact, details of recycling, reuse and recharge, reduction of pumping with use of technology for mining and water management to minimise and mitigate the adverse impact on ground water, based on local conditions. The format for the report is given in Annexure V., In Paragraph 4.3 of Guidelines 2020, the issue of No Objection Certificate to infrastructure projects has been dealt with. It states that since infrastructure projects are location specific, grant of No Objection Certificate to such projects located in over‑exploited assessment units shall not be banned. New infrastructure projects or residential buildings may require dewatering during construction activity and/or use ground water for construction. In both cases, applicants shall seek No Objection Certificate from the Central Ground Water Authority before commencement of work. However, in over‑exploited assessment units, use of ground water for construction activity shall be permitted only if no treated sewage water is available within a 10 km radius of the site. New as well as existing infrastructure projects shall also be required to seek No Objection Certificate for abstraction of ground water. No No Objection Certificate shall be granted for extraction of ground water for water parks, theme parks and amusement parks in over‑exploited assessment units., Specific conditions for grant of No Objection Certificate for ground water abstraction in infrastructure projects are provided in Paragraph 4.3. The proponent shall be required to carry out regular monitoring of dewatering discharge rate using a digital water flow meter and submit the data through the web portal to the Central Ground Water Authority or State Ground Water Authority as applicable. Monitoring records and results should be retained by the proponent for two years for inspection or reporting as required. Installation of Sewage Treatment Plants shall be mandatory for new projects where ground water requirement is more than 20 cubic metres per day; the water from the plant shall be utilised for toilet flushing, car washing, gardening, etc. For infrastructure dewatering or construction activity, the No Objection Certificate shall be valid for the specific period as per the detailed proposal submitted by the project proponent. All infrastructure projects drawing ground water in safe, semi‑critical and critical assessment units shall be required to pay ground water abstraction charges as applicable. All infrastructure projects (new or existing) drawing ground water in over‑exploited assessment units shall be liable to pay ground water restoration charges as per Table 5.3 B., The documents required to be submitted along with the application, as per clauses (a), (c) and (e) to (g) of Paragraph 4.3, are: (a) In cases where dewatering is involved, submission of an impact assessment report prepared by an accredited consultant on the ground water situation in the area, giving a detailed plan of pumping, proposed usage of pumped water and comprehensive impact assessment of the same on the ground water regime. The report should highlight environmental risks and proposed management strategies to overcome significant issues such as ground water level decline and land subsidence. (c) Certificate from a government agency regarding non‑availability of treated sewage water for construction within a 10 km radius of the site in critical and over‑exploited areas. (e) Proposal for rain water harvesting/recharge within the premises as per Model Building Bye‑Laws issued by the Ministry of Housing and Urban Affairs. (f) Details of water requirement computed as per National Building Code, 2016 (Annexure I), taking into account recycling/reuse of treated water for flushing etc., in case of completed infrastructure projects for commercial use. (g) Completion certificate from the concerned agency for infrastructure projects requiring water for commercial use., More attention has been paid in Guidelines 2020 on ground water abstraction charges. The charges are payable by all residential apartments, group housing societies, government water supply agencies in urban areas and by industries, mining and infrastructure projects. Ground water abstraction charges, based on the quantum of ground water extraction and category of assessment units as per the details given in the Guidelines, are payable by all industries, mining and infrastructure projects drawing ground water in safe, semi‑critical and critical assessment units. Ground water restoration charges, based on the quantum of ground water abstraction, are payable by all existing mining, infrastructure projects and existing industries including MSME drawing ground water in over‑exploited assessment units. Ground water restoration charges are also payable by new MSME, new infrastructure and new mining projects in over‑exploited areas., Paragraph 6.0 deals with Bulk Water Supply and states that all private tankers abstracting ground water and using it for supply as bulk water suppliers shall now mandatorily seek No Objection Certificate for ground water abstraction. Bulk water suppliers through tankers drawing ground water in safe, semi‑critical and critical assessment units shall pay ground water abstraction charges as per Table 6.1 A. Bulk water suppliers drawing ground water in over‑exploited assessment units shall pay ground water restoration charges as per Table 6.1 B. All tankers will have to install a GPS‑based system for monitoring their movement and area of operation., Paragraph 7.0 deals with abstraction of saline ground water and the provision is broadly similar to that in earlier Guidelines., A new provision with regard to protection of wetland areas is added vide Paragraph 8.0. The wetland areas in the country are crucial as they reflect the presence of ground water. Protection of wetland areas is being separately handled by the Wetland Authorities. Since ground water is vital for the survival of wetland areas, any excessive ground water development within the zone of a wetland would affect the volume of water in that wetland. Projects falling within 500 metres from the periphery of demarcated wetland areas shall mandatorily submit a detailed proposal indicating that any ground water abstraction by the project proponent does not affect the protected wetland areas. Furthermore, before seeking permission from the Central Ground Water Authority, the projects shall obtain consent/approval from the appropriate Wetland Authorities to establish their projects in the area., Paragraph 11.0 deals with renewal of No Objection Certificate. The term of renewal is specified as follows: Critical, semi‑critical and safe infrastructure projects for drinking and domestic use and urban water supply agencies – 5 years; Industries – 3 years; Mines – 2 years; Over‑exploited areas – all users – 2 years. If the application for renewal is submitted in time and the Central Ground Water Authority or the respective State/UT Authority is unable to process the application in time, the No Objection Certificate shall be deemed to be extended till the date of renewal. If the proponent fails to apply for renewal within three months from the date of expiry of the No Objection Certificate, the proponent shall be liable to pay Environmental Compensation for the period starting from the date of expiry until the No Objection Certificate is renewed by the competent authority., Paragraph 13.0 appoints the District Magistrate, District Collector or Sub‑Divisional Magistrate of each revenue district or sub‑division as Authorized Officers, delegating power to seal illegal wells, disconnect electricity supply to the energized well, launch prosecution against offenders, and handle grievance redressal related to ground water in their respective jurisdictions. To decentralise and strengthen monitoring and compliance mechanisms, officials of concerned departments of revenue and industries of States/UTs shall be appointed as Authorized Officers in consultation with State/UT Governments. A copy of the No Objection Certificate issued by the Central Ground Water Authority shall be forwarded to the respective District Magistrate or District Collector. For any violation of directions of the Central Ground Water Authority and non‑fulfilment of the conditions laid down in the No Objection Certificate, Authorized Officers will file appropriate petitions or original applications under Sections 15 to 21 of the Environmental Protection Act, 1986, in the appropriate courts., Paragraph 14.0 directs all project proponents drawing ground water more than 10 cubic metres per day to mandatorily construct piezometers (observation wells) within their premises for monitoring of ground water levels., Determination of Environmental Compensation and the formula thereof is provided in Paragraph 15.0 of Guidelines 2020. Extraction of ground water for commercial use by industries, infrastructure units and mining projects without a valid No Objection Certificate from the appropriate authority shall be considered illegal and such entities shall be liable to pay Environmental Compensation for the quantum of ground water extracted. The norms prescribed by the Central Pollution Control Board shall be utilised for calculating the Environmental Compensation as follows: ECGW = Ground water consumption per day × Environmental Compensation rate (ECRGW) × Number of days × Deterrence factor, where ground water consumption is in cubic metres per day and ECRGW is in rupees per cubic metre., Rates of Environmental Compensation are prescribed in Paragraph 15.1 and differ for various kinds of units. Table 15.1 provides rates for packaged drinking water units; Table 15.2 for mining and infrastructure dewatering projects; and Table 15.3 for industrial units. All three tables state that the minimum Environmental Compensation shall not be less than Rs. One lakh. Paragraph 15.2 lays down deterrent factors to compensate losses and environmental damage for packaged drinking water units and mining/infrastructure dewatering projects., Paragraph 16.0, besides and/or in addition to Environmental Compensation, provides for penalties liable to be imposed on proponents for non‑compliance with No Objection Certificate conditions. The rates of penalty are given in Table 16.1., Paragraph 17.0 sets out other important conditions applicable to all: Sale of ground water by a person or agency not having a valid No Objection Certificate from the Central Ground Water Authority or State Ground Water Authority is not permitted. In infrastructure projects, paved or parking areas must be covered with interlocking or perforated tiles or other suitable measures to ensure ground water infiltration or harvesting. Infrastructure projects shall ensure implementation of a dual water supply system and submit compliance through the web portal. Non‑compliance with No Objection Certificate conditions may be taken as sufficient reason for cancellation or non‑renewal of the certificate. No application shall be entertained without supporting documents as specified. Abstraction structures should be located inside the premises of the project property. Self‑compliance of conditions laid down in the No Objection Certificate shall be reported online in the web portal of the Central Ground Water Authority or State Ground Water Authority. Processing fees, if any, shall be charged for various services., Note: Guidelines are subject to modification from time to time. In case of any discrepancy between the Hindi and English versions of this document, including the annexures, the English version shall prevail., Thus, the concerned Ministry, namely the Ministry of Jal Shakti (Department of Water Resources, River Development and Ganga Rejuvenation), issued Guidelines 2020 in purported compliance with directions contained in Tribunal orders dated 11 September 2019, 20 July 2020 and earlier orders referred to in this judgment. However, the Guidelines broadly do not satisfy the directions repeatedly given by the Tribunal. They provide only a new cover to the old scheme with minor variations, alterations and modifications, but have no substantial impact on the root cause – protection and preservation of ground water, prevention of further depletion, and effective recharge and restoration., Regarding exemption from the requirement of a No Objection Certificate, the categories of consumers such as domestic users requiring water for drinking and domestic uses, establishments of security forces like the Armed Forces and Central Armed Police Forces, and agricultural activities are not commented upon at this stage. Inclusion of some commercial and industrial activities, i.e., micro and small industrial entrepreneurs (MSME) drawing ground water less than 10 cubic metres per day, even in areas where ground water level is critical or over‑exploited, is incomprehensible. The number of such units and the impact of their draw on water levels appear to have not been examined, despite the Tribunal's order on 20 July 2020 and the notification containing Guidelines 2020 issued on 24 September 2020, i.e., within less than two months., Further, for other commercial and industrial activities, the alleged restrictions are only an eye‑wash. For commercial uses, no No Objection Certificate shall be granted to new major industries in over‑exploited assessment areas except as per policy guidelines. In the context of commercial use, only for industrial use, a No Objection Certificate shall not be granted for ground water extraction to a new industry, except those falling in the MSME category. Existing units are not covered by this restriction. New units may obtain a No Objection Certificate for abstraction of ground water for drinking/domestic use for workforce, green belt, etc. Expansion of existing units involving increased ground water extraction in over‑exploited assessment areas shall not be permitted. A twist is that No Objection Certificate shall not be granted to new packaged water industries in over‑exploited areas even if they belong to the MSME category. In Guidelines 2015, no No Objection Certificate was to be given to any water‑intensive industry, even if it was an MSME, in over‑exploited assessment areas. Now the restriction is limited to packaged water industries, representing a drastic relaxation for water‑intensive industries, contrary to the Tribunal's order., The critical and semi‑critical areas have been left untouched and there is no restriction at all. The only reference to these areas in Paragraph 4.1 (viii) is that industries drawing ground water in safe, semi‑critical and critical assessment areas shall be required to pay ground water extraction charges, which will also be paid by existing industries. The charges are provided as per Table 5.2 A and Table 5.3 A for safe, semi‑critical and critical assessment units and Tables 5.2 B and 5.3 B for over‑exploited areas. The rates are as follows: Table 5.2 A – Rates of ground water abstraction charges for packaged drinking water units (Rs per cubic metre): Safe – 1.00, 3.00, 5.00, 8.00, 10.00; Semi‑critical – 2.00, 5.00, 10.00, 15.00, 20.00; Critical – 4.00, 10.00, 20.00, 40.00, 60.00. Table 5.3 A – Rates of ground water abstraction charges for other industries and infrastructure projects (Rs per cubic metre): Safe – 1.00, 2.00, 3.00, 5.00; Semi‑critical – 2.00, 3.00, 5.00, 8.00; Critical – 4.00, 6.00, 8.00, 10.00. Table 5.2 B – Rates of ground water restoration charges for packaged drinking water units (Rs per cubic metre): Over‑exploited (existing industries only) – 8.00, 20.00, 40.00, 80.00, 120.00. Table 5.3 B – Rates of ground water restoration charges for other industries and infrastructure projects (Rs per cubic metre): Over‑exploited (existing industries / new industries as per the present Guidelines) – 6.00, 10.00, 16.00, 20.00., In respect of mining and infrastructure projects, it is specifically provided that No Objection Certificate shall not be denied or banned for existing as well as new projects in over‑exploited areas. Although some conditions exist for monitoring the quantity of ground water extraction, payment of abstraction charges or restoration charges as the case may be, effective steps capable of execution for recharge or restoration are clearly wanting., Thus, the issue of constant depletion of water level was initially raised before the Tribunal in the context of NOIDA and Greater NOIDA, which are part of Gautam Buddha Nagar district, and subsequently extended to the entire country as the problem is being faced nationwide. The Tribunal repeatedly required the statutory regulator, i.e., the Central Ground Water Authority, to take effective steps for prevention of depletion and for recharge, restoration and rejuvenation of water levels. The Central Ground Water Authority has the statutory power to take all permissible, possible and effective steps for this purpose, yet it has been reluctant to execute and enforce the power as desired. Studies of ground water levels in different phases have shown alarming declines in a large number of places, but for regulatory purposes only a very small fragment was selected by the Central Ground Water Authority without specifying the criteria. Consequently, a very small number of areas were notified and some provisions for regulation were made. In non‑notified areas, very relaxed and concessional provisions were made, such as granting a licence (No Objection Certificate) in a smooth and casual fashion, ignoring the statutory duty to protect and conserve ground water levels. This approach was not appreciated by the Tribunal, which expressed displeasure repeatedly. Nevertheless, the Central Ground Water Authority, on the pretext of effective functioning of the economy, issued revised Guidelines repeatedly, but all failed when tested against the conservation and protection of ground water in stressed or highly stressed areas., Major deficiencies observed by the Tribunal in various Guidelines issued by the Central Ground Water Authority are summarised as follows: (i) Policy must be rational, meet basic needs of everyone and preserve water for future generations by preventing wastage, based on the principle of sustainable development. (ii) Policy must have punitive measures and recovery of damages from those who have extracted ground water illegally, leading to alarming depletion. (iii) Steps must be taken to tap all relevant sources, especially rain water harvesting and preservation of water bodies. (iv) When the Central Ground Water Authority has classified over‑exploited, critical and semi‑critical areas for regulation, it has no reason to refuse regulation of such areas on the plea that it would govern only notified areas. (v) As a central authority, it must regulate ground water throughout the country under the mandate of the Supreme Court and cannot show apathy by limiting regulation to notified areas. (vi) Extraction of ground water in over‑exploited, critical and semi‑critical areas, with or without permission, on the pretext of being non‑notified, amounts to failure of statutory duty. (vii) Imposition of a condition of recharge of underground water without any mechanism for ensuring compliance is unjustified. (viii) Abstraction of ground water for building construction, watering plants, swimming pools, threatening availability of ground water in over‑exploited, critical and semi‑critical areas, especially in the absence of adequate recharge steps, is unjustified. (ix) Mere provision for collection of charges for drawl of ground water is ridiculous and illegal in over‑exploited, critical and semi‑critical areas. (x) The Central Ground Water Authority must observe the precautionary principle, sustainable development and inter‑generational equity. Drawl of ground water for industrial purposes with or without payment in over‑exploited, critical and semi‑critical areas should be banned. (xi) Checking contamination of ground water by discharge of untreated effluents into water bodies needs comprehensive planning and execution on a priority basis. (xii) Apathy of authorities in recent years, neglecting the subject in breach of trust, has been noted by the Tribunal, with no information given regarding compliance with earlier orders. (xiii) Instead of laying down strict norms for extraction of ground water for commercial purposes and establishing a robust institutional mechanism for surveillance and monitoring, extraction has been liberalised, adding to the crisis. (xiv) No study or data has been furnished or collected to justify this approach. (xv) Drawl of ground water for all practical purposes is made unregulated in all areas, including over‑exploited, critical and semi‑critical areas. (xvi) The so‑called regulation is illusory. (xvii) Water conservation fee effectively becomes a licence to harness ground water to any extent, even in over‑exploited, critical and semi‑critical areas. (xviii) No institutional mechanism exists to monitor removal and replenishment of ground water. (xix) No check on injection of pollutants into ground water. (xx) No provision to check water quality and remediation if contamination occurs. (xxi) Instead of conserving ground water necessary for drinking water in over‑exploited, critical and semi‑critical areas, the Guidelines would result in fast depletion and damage to water bodies. (xxii) The mandate of the Central Ground Water Authority is not exploitation of ground water in depleted areas but its conservation. (xxiii) Over‑exploited, critical and semi‑critical areas need regulation for conservation and cannot be treated separately as notified or non‑notified. (xxiv) Compensation for illegal abstraction must be deterrent, linked to the quantum of ground water extracted and the period of extraction. (xxv) The Central Ground Water Authority must lay down and follow stringent norms to ensure no depletion of ground water in over‑exploited areas and that depleted water levels are improved and replenished. (xxvi) Abstraction of ground water in over‑exploited areas should be permitted only for drinking purposes. (xxvii) For calculation of environmental compensation, the present categorisation of area (over‑exploited, critical and semi‑critical) shall be considered irrespective of when the violation started. (xxviii) In cases where demand exceeds 5,000 kilolitres per day in existing cases, permission shall be given only after examining scientific assessment of water availability and inter‑generational equity. Repeated violations shall attract environmental compensation at 1.25 times the previous amount. (xxix) Since over‑exploited areas have been seriously affected by over‑drawl, regulation of such drawl for commercial purposes cannot be dispensed with for any industry, even in industrial zones. (xxx) In the absence of replenishment, unregulated drawl cannot be permitted to any commercial entity. (xxxi) Shortage of water for commercial purposes cannot be remedied by permitting drawl in over‑exploited areas. (xxxii) Water is a scarce resource; therefore, industry must cope with scarcity and find alternative ways to meet its water requirement. (xxxiii) Indiscriminate drawl of water in such areas cannot be permitted until the situation improves. (xxxiv) Liberalisation of ground water extraction across the board for certain categories, without impact assessment and effective checks, is against law. (xxxv) No road map has been prepared by the Central Ground Water Authority to show how revised Guidelines will check and neutralise falling ground water levels. Liberalisation of abstraction would defeat the purpose of the Central Ground Water Authority and is contrary to the public trust doctrine. (xxxvi) Effective steps for protecting ground water in over‑exploited areas against individual commercial considerations are essential to serve the general public., In the backdrop of the foregoing observations culled from various Tribunal orders, the order dated 20 July 2020 formulated four issues in Paragraph 27 and, in Paragraph 28, the Tribunal answered that the answer to the issues is \no\. The Tribunal held that, as per the mandate of sustainable development under Section 20 of the National Green Tribunal Act, 2010, the regulator must direct its policy towards preventing further depletion and upgrading ground water levels based on impact assessment. Extraction cannot be unregulated nor allowed across the board without individual consideration. Consequently, directions were issued to prepare a meaningful regulatory regime and institutional mechanism for preventing depletion, unauthorised extraction of ground water and ensuring sustainable management in over‑exploited, critical and semi‑critical areas., Unfortunately, the concerned Ministry and regulator acted in haste and, within two months (by 24 September 2020), published Guidelines 2020, wherein most of the infirmities, irregularities and failures pointed out in earlier Guidelines are present. Although there are minor variations and alterations, they are wholly inconsequential given the gravity of the situation arising from consistent depletion of ground water., The notification issued by the Uttar Pradesh Ground Water Department shows that in the State of Uttar Pradesh almost every district, and some districts as a whole, are in a seriously stressed condition, with depletion of water to the extent of critical and over‑exploited levels, with only a few exceptions., The condition of the National Capital Territory of Delhi, as already noted, is already seriously alarming., A recent newspaper report stated that in Chennai city, ground water level has disappeared up to 2,000 feet, meaning that virtually all ground water has disappeared there.
id_481	11	In this grim situation, continuous laxity on the part of the authorities and the Central Ground Water Authority (CGWA) in particular is a matter of serious concern. We must now adopt stringent measures or we will fail in our duty of vigilant protection of the environment. In Mantri Techzone (supra), the Supreme Court of India said: a tribunal has been established under a constitutional mandate provided in Schedule VII List I Entry 13 of the Constitution of India, to implement the decision taken at the United Nations Conference on Environment and Development. The tribunal is a specialized judicial body for effective and expeditious disposal of cases relating to environmental protection and conservation of forests and other natural resources, including enforcement of any legal right relating to the environment. The right to a healthy environment has been construed as part of the right to life under Article 21 by way of judicial pronouncements. Therefore, the tribunal has special jurisdiction for enforcement of environmental rights., We have already referred to the provisions of Guidelines 2020. The new Guidelines are nothing but placement of old wine in a new bottle. They reflect an adamant attitude on the part of the concerned authorities for not accepting any improvement, but continuing to violate directions and orders of the tribunal and remaining unconcerned, totally apathetic, to the rapid deterioration of ground water level, making it even difficult for drinking and other domestic purposes as well as agriculture in many areas., This time, Guidelines 2020 are applicable to all areas, irrespective of notified or non‑notified status. However, in the exemption category, certain industries have been included that are entitled to extract ground water even in over‑exploited category (OCS) areas. These industries, irrespective of the nature of commercial activities, may include chemical, paints, pigments, textiles, pharmaceutical, pesticides/insecticides, fertilizers, explosives, slaughter houses, tanning, dye, chemical/petrochemical, coal washeries, other hazardous units, etc., as per the Central Pollution Control Board (CPCB) list. Permission to draw ground water even in over‑exploited areas is made available freely to mining industries and infrastructure projects on the ground that they are specific site projects; hence there shall be no ban for extraction of ground water in over‑exploited assessment units., We do not understand why these activities should be permitted in an area where ground water level has depleted to an alarming level, classifying the area as over‑exploited. If such a condition were applied only to mining of commodities necessary for national interest or rare commodities, the reason for allowing abstraction in over‑exploited areas could be understood. However, a general relaxation to all kinds of mining activities permitting extraction of ground water even in over‑exploited areas appears irrational and shows that the principle of sustainable development is not the key consideration while framing Guidelines 2020; instead, the individual commercial interest of the project proponents has dominated the authorities in making the Guidelines., Similarly, in the matter of infrastructure projects, the reason given is that they are location specific. We fail to understand how an infrastructure project would be unavoidable in an area where ground water itself is not easily available for necessities such as domestic use and agriculture. It is not a case where, looking at the cost of land, the government has proposed to execute a welfare scheme of providing accommodation to poor or homeless people. Other infrastructure projects needed for essential services may also claim such an approach, but irrespective of any class or category, this relaxation has been granted, permitting abstraction of ground water even in over‑exploited areas., There are a number of infrastructure projects engaged in constructing luxurious residential accommodations, grand villas, farm houses (technically called farm houses but in fact luxurious residences with parts of land used for gardening and amusement, not accessible or affordable to the average class, but meant for the elite), multispecialty private hospitals, private educational high‑grade institutions, etc. These projects can be undertaken elsewhere and there is no necessity or public interest to have them in areas where ground water level is so depleted that the area is classified as over‑exploited, critical, or semi‑critical. Permitting such concessions and showing generosity in granting abstraction of ground water to these project proponents indicates that regulators have not undertaken any study to determine whether these projects are accessed by real end users or are primarily in the hands of investors, status seekers, or individual economic benefit handlers, benefiting only a handful of elite socialites while causing severe impact on the common man's life and his fundamental right to availability of drinking water for survival., In the name of infrastructure development, huge capital transactions occur between persons who are mostly not end users. Therefore, before being lenient in permitting abstraction of ground water, the regulator must conduct a ground study to find out whether granting such general concession is in the public interest and, more particularly, in the interest of protection and conservation of the environment, which is the only duty of the regulator created under the order of the Supreme Court of India but has not been done., It is said that the economic health of the country needs rapid infrastructure development, particularly in the realty sector. However, policymakers and regulators must know that developers or project proponents will disappear after selling units, and when drinking water is in crisis, individual buyers will be the real sufferers. Providing easy access to ground water for developers and turning a blind eye to a large number of buyers means an approach against the general public, exploiting natural resources that belong to the public and the State holds only in trust. Concerned departments and regulators are bound to follow the doctrine of public trust and inter‑generational equity. It is also against the principle of sustainable development., Earlier, in Guidelines up to 2015, industries where water is a raw material or water‑intensive industries were not allowed to abstract ground water in over‑exploited areas, though this restriction was confined to notified areas. In the revised scheme of 2020, the concept of notified or non‑notified area has been done away with, but simultaneously, water‑intensive industries are entitled to obtain a No‑Objection Certificate (NOC) for extraction of ground water. Now the restriction is confined only to packaged water industries. Other industries are permitted to be granted NOC in over‑exploited category (OCS) areas. In over‑exploited areas, only new industries have been denied NOC. Thus, a substantial relaxation has been made., Rates of water charges and extraction charges are almost similar to those in Guidelines 2018. Environmental compensation for illegal abstraction is provided in paragraph 15 of Guidelines 2020, with deterrent factors in paragraphs 15.1 to 15.4. If the period of illegal extraction is less than two years, the deterrent factor is one; for a period between two and five years, it is 2.5; and for more than five years, it is two. No distinction in deterrent factor has been made for illegal extraction of ground water in over‑exploited category areas; the difference is only in the rate of environmental compensation. The tribunal said that such compensation must be deterrent, meaning the violation should not be profitable to the violator. In our view, the Guidelines do not satisfy the direction of the tribunal. The rates are also very nominal and not deterrent by any logic or standard., Hence, we are satisfied that even Guidelines 2020 do not conform and comply with the directions given by the tribunal, as noted above, and suffer broad irregularities and infirmities. In fact, the Guidelines are more stretched and extensively tilted towards various categories of commercial proponents, and permit draw‑down of ground water in an easy manner rather than taking care of conservation, particularly in over‑exploited category areas., The Central Ground Water Authority is a statutory authority and has statutory powers to issue directions or take such measures as are necessary for protecting the environment. These directions are referable to the Environment Protection Act, 1986, enacted vide Entry 13 List I of the Constitution, and therefore even provincial legislations would have no competence to touch this subject. Undoubtedly water is in List II Entry 17, but to the extent that ground water is part of pollution and governed by the Environment Protection Act, 1986, provincial legislatures lack competence to make laws on water covered by that Act or its orders, directions, rules, etc., Even if the Central Ground Water Authority prevails over provincial legislations, it cannot confer upon itself jurisdiction to sit over the orders of the tribunal. The power of the Central Ground Water Authority, which it can exercise under Section 5 and Section 3(2) of the Environment Protection Act, 1986, is subject to the mandate and scheme of that Act, and if it travels beyond it or infringes the mandate of the law contained in the Act, such direction or order would not be valid. The National Green Tribunal Act, 2010 is a subsequent enactment and has jurisdiction over environmental matters, and its orders have overriding effect over any other law. Its orders are also binding on the authorities. Therefore, the Central Ground Water Authority is bound by the directions and orders of the tribunal. When exercising powers of issuing directions under Section 3(2) and Section 5 of the Environment Protection Act, 1986, the Central Ground Water Authority cannot issue orders and directions contrary to the orders of the tribunal., The Supreme Court of India in Mantri Techzone (supra) said: the tribunal has a legal obligation to provide for preventive and restorative measures in the interest of the environment., When the tribunal, in discharge of the above obligation, has given some directions, the same cannot be flouted, ignored or disobeyed. Moreover, no order can be issued by any authority in contradiction to the order of the tribunal., If the Guidelines, orders or directions fail to satisfy the above requirement and do not carry out the purpose and objective as stated under Section 3(1) of the Environment Protection Act, 1986, it would give rise to a substantial question relating to the environment arising out of implementation of enactments specified in Schedule I, wherein the Environment Protection Act, 1986 is one of the scheduled enactments, and the tribunal will have to settle the dispute and pass an appropriate order adjudicating the said substantial question. The phrase 'substantial question relating to environment' has been defined under Section 2(m) of the Environment Protection Act, 1986 as follows: (m) substantial question relating to environment shall include an instance where (i) there is a direct violation of a specific statutory environmental obligation by a person by which (A) the community at large other than an individual or group of individuals is affected or likely to be affected by the environmental consequences; or (B) the gravity of damage to the environment or property is substantial; or (C) the damage to public health is broadly measurable; (ii) the environmental consequences relate to a specific activity or a point source of pollution., The definition is inclusive and would include any act on the part of the Central Ground Water Authority which is not in furtherance of the object and purpose for which the authority was constituted and/or does not implement the mandate of the Environment Protection Act, 1986, particularly the mandate given by Section 3(1)., The Supreme Court of India in its order dated 10 December 1996 in M.C. Mehta v. Union of India & Others (1997) (supra), made it very clear in paragraph 12 of the judgment that the main object for constitution of the Central Ground Water Board, as an authority, is the urgent need for regulating indiscriminate boring and withdrawal of underground water in the country. The court further said that it has no doubt that the authority, i.e., the Central Ground Water Authority, shall apply its mind to this urgent aspect of the matter and issue necessary regulatory directions with a view to preserve and protect underground water. The court reiterated its directions by stating: 'This aspect may be taken up by the authority on an urgent basis.', The Central Ground Water Authority, while giving directions or laying down guidelines, must consider and appreciate the mandate of the Supreme Court of India and cannot abrogate or surrender to provincial legislations on the ground that some states have provincial legislations regarding ground water and therefore authorities under those enactments will deal with the issues. The Central Ground Water Authority also cannot be satisfied by issuing guidelines giving easy access to extract ground water in over‑exploited category areas to almost all commercial proponents. This is a failure in discharge of its statutory duties which cannot be justified or appreciated., Further, at the pain of repetition, we reiterate that if there is an adjudication or order passed by the tribunal, referable to Section 14 and/or Section 15 or any other provision of the National Green Tribunal Act, 2010, the Central Ground Water Authority is also bound to comply with those directions and/or issue its orders or directions in accordance with the orders of the tribunal in view of Section 21 of the National Green Tribunal Act, 2010, which says that the decision of the tribunal shall be binding, and Section 26 makes it an offence if the order or award or a decision of the tribunal is not complied with. This view is further emboldened by Section 33 of the National Green Tribunal Act, 2010 which gives overriding effect to the provisions of that Act over any other law for the time being in force., The Central Ground Water Authority must inform itself and be guided while issuing guidelines for regulating ground water to follow the basic fundamental principles applicable to environmental law, namely: (i) Sustainable Development; (ii) Precautionary Principle; (iii) Doctrine of Public Trust; (iv) Polluter Pays principle; and (v) Inter‑generational equity., Sustainable Development is a concept that conveys that there must be a balance between development and ecology. The concept was given a definite shape in a report submitted by the World Commission on Environment and Development, titled 'Our Common Future'. The commission was chaired by Ms. Gro Harlem Brundtland, the then Prime Minister of Norway. In the report, sustainable development was defined as development that meets the needs of the present without compromising the ability of future generations to meet their own ends. This report, commonly known as the Brundtland Report, was discussed under Agenda 21 of the United Nations Conference on Environment and Development held in June 1992 at Rio de Janeiro, Brazil. Some of the basic principles of sustainable development stated in the report were: (a) inter‑generational equity, i.e., the right of every generation to benefit from natural resources; (b) precautionary principle, i.e., where there are threats of serious or irreversible damage, lack of scientific certainty shall not be used as a reason for postponing cost‑effective measures to prevent environmental degradation; (c) polluter pays principle, i.e., the polluter should bear the cost of pollution., The precautionary principle is the message that environmental measures by the concerned authorities must anticipate, prevent and attract the cost of environmental degradation. Where there are threats of serious and irreversible damage, lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation and the onus of proof is on the actor or developer to prove that the action is environmentally benign., Similarly, the polluter pays principle contemplates that not only should the polluter pay compensation to the victims but also bear the cost of restoring environmental degradation. A person found guilty of degrading the environment is liable to compensate for his act, irrespective of whether he is involved in the development process or not., The Supreme Court of India in M.C. Mehta v. Kamal Nath & Others (1997) SCC 388 has discussed the above principles in detail and, while dealing with the concept of the doctrine of public trust, has said that the public has a right to expect certain lands and natural areas to retain their natural characteristics. Tracing the history of the doctrine of public trust, the court referred to the ancient Roman Empire and Roman law, recognizing natural resources as common properties, i.e., rivers, seashores, forests, air, water etc. Under Roman law, these resources were either owned by no one or by everyone in common. After referring to American, English and some other countries' laws, the Supreme Court of India said: 'We see no reason why the public trust doctrine should not be expanded to include all ecosystems operating in our natural resources.', The court further said: 'The State is the trustee of all natural resources which are by nature meant for public use and enjoyment. The public at large is the beneficiary of the seashore, running waters, airs, forests and ecologically fragile lands. The State as a trustee is under a legal duty to protect the natural resources. These resources meant for public use cannot be converted into private ownership.', The doctrine of public trust was reiterated in M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu & Others (1999) SCC 464., Considering the above principles, when directions are issued by the tribunal in discharge of its function under the National Green Tribunal Act, 2010, the Central Ground Water Authority or any other authority or even the government cannot ignore them. Normally policies laid down by authorities are not interfered with by the tribunal, but if any policy, direction, guideline or order is liable to cause damage to the environment or adversely affect preservation, protection and conservation of the environment, such directions would give rise to a substantial question relating to the environment and the tribunal has statutory authority, jurisdiction and obligation to intervene and adjudicate the issue so as to protect the environment. Where degradation or damage has already occurred, the tribunal may issue directions for rejuvenation applying the polluter pays principle. Such decisions of the tribunal are binding on the authorities and, under law, they are bound to follow and implement them, since non‑compliance with an order of the tribunal is not only subject to execution but is also a criminal offence. Any order or direction of the authorities contrary to the tribunal’s direction cannot be executed or followed because the National Green Tribunal Act, 2010 has overriding effect over any other law. Therefore, orders of the tribunal shall prevail., The question of jurisdiction of the tribunal has been considered recently by the Supreme Court of India in many matters., In State of Meghalaya vs. All Dimisa Students Union, Dima Hasao District Committee & Others (2019) SCC 177, illegal mining in the State of Meghalaya was the issue where the tribunal issued detailed guidelines and imposed heavy environmental compensation on the State. In appeal, the Supreme Court formulated fourteen points for consideration; the relevant one is: (1) Whether orders passed by the National Green Tribunal are without jurisdiction being beyond the purview of Sections 14, 15 and 16 of the National Green Tribunal Act, 2010? (2) Whether the order of the National Green Tribunal dated 17.04.2014 directing a complete ban on mining is unsustainable? (3) Whether the National Green Tribunal had jurisdiction to constitute committees to submit reports, to implement the orders of the tribunal, to monitor storage/transportation of minerals and to prepare an action plan for restoration of the environment? (4) Whether the National Green Tribunal committed error in directing the constitution of the Meghalaya Environment Protection and Restoration Fund? (5) Whether the National Green Tribunal by constituting committees has delegated essential judicial powers to the committees and has further encroached the constitutional scheme of administration of tribal areas under Article 244(2) and Article 275(1) and Schedule VI of the Constitution? (6) Whether the direction to deposit Rs. 100 crore by the State of Meghalaya by order dated 04.01.2019 of the National Green Tribunal is sustainable?, Considering point 1, referring to pleadings, the Supreme Court said that clear allegations of environmental degradation consequent to illegal coal mining were made. Inaction of respondent authorities resulting in violation of environmental laws, i.e., Water Act, 1974, Air Act, 1981 and Environment Protection Act, 1986, was also alleged. Thus, the allegations were sufficient to attract jurisdiction of the tribunal under Section 14. The tribunal also found that the allegations of degradation of environment, i.e., water, air and surface, were substantiated. Hence, the court said that the tribunal has jurisdiction under Section 14 to pass appropriate orders. Distinguishing Techi Tagi Tara vs. Rajendra Singh Bhandari & Others (2018) SCC 734, the court said that the matter of appointment of professionals by the State Government in Pollution Control Boards cannot be said to be a primary dispute over which the tribunal would have jurisdiction. Hence, the judgment was rendered on different facts and did not pertain to environmental degradation. The question was answered upholding jurisdiction of the tribunal., Dealing with Issue 7, the court said that use of natural resources plays a major role in carrying out development. A fine balance has to be maintained in utilization of natural resources and its conservation and preservation. One cannot be sacrificed for the interest of the other. Issue 7 was answered by observing that the direction of the tribunal will not come into force if the mining is done by tribals in accordance with the regulations contained in the relevant statutory provisions. Issues 9 and 10 were taken together and, referring to Section 19 of the National Green Tribunal Act, 2010 read with order 26 and in particular Rule 10(a) of the Code of Civil Procedure, the court held that the tribunal can obtain reports from experts. Under the statutory scheme, the tribunal has to decide several complex questions pertaining to pollution and environment. Scientific investigation and report by experts are necessary in appropriate cases to reach correct conclusions and to find measures to remedy pollution and environment. The court also referred to Section 35, where rules were framed, and then referred to Rule 24 of the Rules and upheld the power of the tribunal to appoint a committee to obtain a report. Issue 11 was also answered in the negative. The Supreme Court rejected the contention of the appellant that by constitution of a committee, essential judicial powers had been delegated by the tribunal. Upholding the quantum of compensation, the court said it is neither a penalty nor a fine imposed upon the State but a step towards restoration of the environment. The amount was upheld but the State was permitted to transfer the said amount from the Meghalaya Environment Protection & Relief Funds (MEPRF) to the Central Pollution Control Board, which was directed to utilize the same for restoration of the environment., The Supreme Court considered Sections 14, 15 and 17 and observed that the tribunal has jurisdiction which can be kept in three categories. We find it appropriate to refer, in this regard, to the law laid down in Mantri Techzone Private Limited vs. Forward Foundation & Others (supra) on the question of jurisdiction. The court said: (41) The jurisdiction of the tribunal is provided under Sections 14, 15 and 16 of the Act. Section 14 provides jurisdiction over all civil cases where a substantial question relating to environment (including enforcement of any legal right relating to environment) is involved. However, such question should arise out of implementation of the enactments specified in Schedule I. (42) The tribunal also has jurisdiction under Section 15(1)(a) of the Act to provide relief and compensation to victims of pollution and other environmental damage arising under the enactments specified in Schedule I. Further, under Section 15(1)(b) and 15(1)(c) the tribunal can provide for restitution of property damaged and for restitution of the environment for such area or areas as the tribunal may think fit. It is noteworthy that Sections 15(1)(b) & (c) have not been made relatable to Schedule I enactments of the Act. Rightly so, this grants a glimpse into the wide range of powers that the tribunal has with respect to restoration of the environment. (43) Section 15(1)(c) of the Act is an entire island of power and jurisdiction read with Section 20 of the Act. The principles of sustainable development, precautionary principle and polluter pays, propounded by this court by way of multiple judicial pronouncements, have now been embedded as a bedrock of environmental jurisprudence under the National Green Tribunal Act. Therefore, wherever the environment and ecology are being compromised and jeopardized, the tribunal can apply Section 20 for taking restorative measures in the interest of the environment. (44) The National Green Tribunal Act being a beneficial legislation, the power bestowed upon the tribunal would not be read narrowly. An interpretation which furthers the interests of the environment must be given a broader reading. (See Kishore Lal v. Chairman, Employees State Insurance Corporation (2007) 4 SCC 579, paragraph 17). The existence of the tribunal without its broad restorative powers under Section 15(1)(c) read with Section 20 of the Act would render it ineffective and toothless, and would betray the legislative intent in setting up a specialized tribunal specifically to address environmental concerns. The tribunal, specially constituted with judicial members as well as experts in the field of environment, has a legal obligation to provide for preventive and restorative measures in the interest of the environment., Section 15 of the Act provides power and jurisdiction independent of Section 14 thereof. Further, Section 14(3) juxtaposed with Section 15(3) of the Act are separate provisions for filing distinct applications before the tribunal with distinct periods of limitation, thereby amply demonstrating that jurisdiction of the tribunal flows from these sections independently. The limitation provided in Section 14 is a period of six months from the date on which the cause of action first arose and whereas in Section 15 it is five years. Therefore, the legislative intent is clear to keep Sections 14 and 15 as self‑contained jurisdictions., In The Director General (Road Development) National Highways Authority of India vs. Aam Aadmi Lok Manch & Others, Civil Appeal No. 6932/2015, decided on 14 July 2020, the National Highways Authority of India had entered into an agreement with M/s P.S. Toll Road (Pvt.) Ltd. for maintenance and operation of the Pune‑Satara section of National Highway No. 4, a stretch of 140 km. The agreement included construction of the project as well as its operation and maintenance for a period of 24 years. Another person, Rathod, applied to the Government of Maharashtra for a licence to extract minor minerals in a land bearing survey number 112A, area 5 acres and 93 cents. The mineral extraction was on the upper‑hill of the road constructed by the National Highways Authority of India through its contractor. Due to indiscriminate excavation and dumping of debris, an accident took place on 06 June 2013 causing the death of a lady driving a vehicle and her daughter. A public‑spirited organization, Aam Aadmi Lok Manch, filed an application before the tribunal (Pune Bench) under Section 14 read with Sections 16 and 18 of the National Green Tribunal Act, 2010, wherein the tribunal awarded compensation against Rathod, the National Highways Authority of India and its contractor. All the aggrieved persons and authorities preferred appeals before the Supreme Court of India, which included Rathod, the National Highways Authority of India and some other construction firms which were sub‑contractors. The court formulated four issues, the first relevant for our purpose being: (i) Jurisdiction of the National Green Tribunal to award compensation., The above question was answered in paragraph 32 and onwards. The court said that the National Green Tribunal has two kinds of powers and jurisdictions, one primary, i.e., under Sections 14 and 15, and a second appellate, under Section 16. It also held that a conjoint reading of Sections 14, 15 and the schedules should not be taken to infer that the tribunal has circumscribed jurisdiction to deal with, adjudicate, and wherever needed, direct measures such as payment of compensation etc. This interpretation, the court said, is not warranted. Proceeding further, in paragraph 37, the court said: The reference to Schedule II in Section 15(4) is not merely by way of events which are actionable in relation to harm caused due to acts resulting in violation of any enactment under Schedule I. The wide language of that provision enables the tribunal to direct, inter alia, payment of compensation having regard to damage to public health, property and environment. This interpretation is borne out by a reading of Section 17(2) regarding the apportionment of liability for payment of compensation.
id_481	12	A three‑Judge Bench of the Supreme Court of India, following earlier decision in Mantri Techzone Private Limited vs. Forward Foundation & Others (supra), said in paragraphs 43, 71 and 72 of The Director General (supra) as under: It is noteworthy that this court clearly held that under Section 15(1)(b) and 15(1)(c) of the National Green Tribunal Act, the National Green Tribunal has the power to make directions and provide for restitution of property damaged and for restitution of the environment for such area or areas as the Tribunal may think fit. It is noteworthy that Section 15(1)(b) and (c) have not been made relatable to Schedule I enactments of the Act. Though a direction for compensation under Section 15(1)(a) is relatable to violation of enactments specified under the first schedule, the power under Section 17 appears to be cast in wider terms. The power and jurisdiction of the National Green Tribunal under Sections 15(1)(b) and (c) are not restitutionary in the sense of restoring the environment to the position it was before the practice impugned, or before the incident occurred. The Tribunal’s jurisdiction is remedial, based on a reflexive exercise of its powers, and, depending on the nature of the abusive practice, its powers can also be preventive. As a quasi‑judicial body exercising both appellate jurisdiction over regulatory bodies’ orders and directions (under Section 16) and its original jurisdiction under Sections 14, 15 and 17 of the National Green Tribunal Act, the Tribunal, based on the cases and applications made before it, is an expert regulatory body. Its personnel include technically qualified and experienced members. The powers it exercises and directions it can potentially issue impact not merely those before it, but also state agencies and state departments whose views are heard, after which general directions to prevent the future occurrence of incidents that impact the environment are issued., In Alembic Pharmaceuticals Ltd. v. Rohit Prajapati & Others (2020) SCC OnLine SC 347, a circular was issued by the Ministry of Environment, Forests and Climate Change on 14 May 2020, which envisaged grant of ex‑post facto Environmental Clearance and challenge before the Tribunal. The circular was held illegal, holding that in environmental law there is no concept of ex‑post facto Environmental Clearance. The matter was taken before the Supreme Court of India and an objection was raised on behalf of the project proponents that the Tribunal cannot declare orders of the Government of India or the Ministry of Environment, Forests and Climate Change ultra vires or illegal. Reliance was placed on the judgment in Techi Tagi Tara v. Rajendra Singh Bhandari & Others (supra) and Tamil Nadu Pollution Control Board v. Sterlite Industries (India) Ltd. (2019) 19 SCC 479. The Supreme Court relied upon an earlier judgment in Common Cause v. Union of India (2017) SCC 499, wherein an argument in support of ex‑post facto Environmental Clearance was rejected, and said in paragraph 125: \We are not in agreement with learned counsel for the mining lease holders. There is no doubt that the grant of an Environmental Clearance cannot be taken as a mechanical exercise. It can only be granted after due diligence and reasonable care since damage to the environment can have a long‑term impact. The Environmental Impact Assessment 1994 is therefore very clear that if expansion or modernization of any mining activity exceeds the existing pollution load, a prior Environmental Clearance is necessary and, as already held by this Court in M.C. Mehta v. Union of India (2004) 12 SCC 118, even for the renewal of a mining lease where there is no expansion or modernization of any activity, a prior Environmental Clearance is necessary. Such importance given to an Environmental Clearance makes the grant of an ex‑post facto environmental clearance detrimental to the environment and could lead to irreparable degradation of the environment. The concept of an ex‑post facto or a retrospective Environmental Clearance is completely alien to environmental jurisprudence including the Environmental Impact Assessment 1994 and Environmental Impact Assessment 2006. We make it clear that an Environmental Clearance will come into force not earlier than the date of its grant.\, In Alembic Pharmaceuticals Ltd. v. Rohit Prajapati & Others (supra) the Supreme Court of India said in paragraph 23: The concept of an ex‑post facto Environmental Clearance is in derogation of the fundamental principles of environmental jurisprudence and is an anathema to the Environmental Impact Assessment notification dated 27 January 1994. It is, as the judgment in Common Cause holds, detrimental to the environment and could lead to irreparable degradation. The reason why a retrospective Environmental Clearance or an ex‑post facto clearance is alien to environmental jurisprudence is that before the issuance of an Environmental Clearance, the statutory notification warrants a careful application of mind, besides a study into the likely consequences of a proposed activity on the environment. An Environmental Clearance can be issued only after various stages of the decision‑making process have been completed. Requirements such as conducting a public hearing, screening, scoping and appraisal are components of the decision‑making process which ensure that the likely impacts of the industrial activity or the expansion of an existing industrial activity are considered in the decision‑making calculus. Allowing for an ex‑post facto clearance would essentially condone the operation of industrial activities without the grant of an Environmental Clearance. In the absence of an Environmental Clearance, there would be no conditions that would safeguard the environment. Moreover, if the Environmental Clearance was to be ultimately refused, irreparable harm would have been caused to the environment. In either view of the matter, environmental law cannot countenance the notion of an ex‑post facto clearance. This would be contrary to both the precautionary principle as well as the need for sustainable development., Supreme Court of India also distinguished Tamil Nadu Pollution Control Board v. Sterlite Industries (2019) 19 SCC 479. Consequently, the Court upheld the order of the National Green Tribunal to the extent that the circular of the Ministry of Environment, Forests and Climate Change was held illegal or invalid., In Municipal Corporation of Greater Mumbai v. Ankita Sinha & Others, Civil Appeal Nos. 12122‑12123 of 2018, a three‑Judge Bench of the Supreme Court of India examined whether the National Green Tribunal has power to exercise suo‑moto jurisdiction. It was argued that the Tribunal did not have power to initiate suo‑moto proceedings. The grounds raised were: (i) the Tribunal is a creature of the statute and, like other statutory tribunals, is bound within statutory confines; (ii) the National Green Tribunal Act is applicable to disputes necessarily referring to a lis between two parties; and (iii) lack of a general power of judicial review shows legislative intent to curb suo‑moto powers., The Supreme Court of India examined the matter from various angles, considering the constitution of the National Green Tribunal, the preamble and statement of objects and reasons of the National Green Tribunal Act 2010, purposive interpretation, features of the Act, non‑adjudicatory roles, uniqueness of the Tribunal vis‑à‑vis other tribunals, need to exercise suo‑moto powers, its sui generis role, authority with self‑activating capability, the precautionary principle, environmental justice, environmental equity and environmental jurisprudence in India. The observations can be summarized as follows: the Tribunal was conceived as a complementary specialised forum to deal with all environmental multidisciplinary issues, both as original and appellate authority, which previously were dealt with by High Courts and the Supreme Court of India; it was intended to be the competent forum for environmental issues instead of the writ jurisdiction of the courts, allowing the higher courts to avoid intervening when an alternative efficacious remedy is available; the power of judicial review was omitted to avoid High Court interference with Tribunal orders before matters reach the Supreme Court; the mandate and jurisdiction of the Tribunal are of the widest amplitude, making it a sui generis forum; unlike civil courts, the Tribunal can mould any relief justified by the facts, even if not specifically prayed for; Parliament intended wide jurisdiction so that the Tribunal can deal with the multitude of environmental issues previously handled under Article 226 of the Constitution by High Courts or Article 32 by the Supreme Court; the Tribunal’s activities aim not only at protection of the environment but also at preventing serious and irreparable ecological damage; the concept of lis extends beyond the usual civil case where one party disturbs the environment and another seeks protection; the Tribunal is not merely adjudicatory but also performs preventive, remedial and ameliorative functions; in Bhopal Gas Peedith Mahila Udyog Sangathan v. Union of India (2012) 8 SCC 326, the Court mandated transfer of all cases concerning statutes listed in Schedule I of the National Green Tribunal Act to the specialised forum to avoid conflicts with High Courts; as long as the sphere of action is not breached, the Tribunal’s powers must be understood to be of the widest amplitude; in Mantri Techzone (P) Ltd. v. Forward Foundation (2019) 18 SCC 494, the Court recognized that the Tribunal is set up under the constitutional mandate in Entry 13 of List I in Schedule VII to enforce Article 21 with respect to the environment and has special jurisdiction for enforcement of environmental rights; in Rajeev Suri v. Delhi Development Authority, 2021 SCC Online SC 7, the Court said that within its statutory domain the role of the Tribunal is clearly discernible; in Andhra Pradesh Pollution Control Board v. Prof. M. V. Nayudu (Retd.) & Others (1999) 2 SCC 718, the Court held that the Tribunal’s role is not simply adjudicatory but also preventive, ameliorative and remedial; statutory tribunals fall under four categories: Administrative Tribunals under Article 323A, Tribunals under Article 323B, specialised sector tribunals and tribunals to safeguard rights under Article 21, with the Tribunal belonging to the fourth category; in State of Meghalaya v. All Dimasa Students Union (2019) 8 SCC 177, the Court observed that the Tribunal has a duty to do justice while exercising its wide jurisdiction and powers; the Tribunal has been recognised as one of the most progressive tribunals in the world and as a sui generis institution; in DG NHAI v. Aam Aadmi Lokmanch, 2020 SCC Online SC 572, the Court rejected the argument for a restricted jurisdiction, observing that the powers conferred on the Tribunal are both reflexive and preventive and that it is an expert regulatory body which can issue general directions within the statutory framework; the Tribunal was conceived as a specialised forum not only as a substitute for a civil court but also to take over all environment‑related cases from High Courts and the Supreme Court; given its multifarious role and purposive interpretation, the Tribunal must have the mechanism to take suo‑moto cognizance of matters for effective discharge of its mandate; Section 14(1) of the National Green Tribunal Act deals with jurisdiction and does not require an application to trigger action; when the three prerequisites of Section 14(1)—civil cases, substantial environmental question, and implementation of Schedule I enactments—are satisfied, the Tribunal’s jurisdiction and power are activated without the need for an aggrieved party to file an application; subsections (2) and (3) of Section 14 are corollaries that come into play when a dispute arises or when limitation periods are considered, but the core jurisdiction under Section 14(1) can operate without a formal application; other provisions relating to interim orders, payment of compensation and review likewise do not require an application or appeal, and insisting otherwise would reduce the Tribunal’s effectiveness and defeat its legal mandate; therefore the Tribunal must act promptly to protect the substantive right to a clean environment and not be obstructed by procedural technicalities., Thus the Tribunal must intervene when it finds that a statutory regulator is failing in effective regulation. The Central Ground Water Authority (CGWA) was constituted with specific powers including regulation, control, management and development of ground water in the country and to issue necessary directions for this purpose. CGWA issued guidelines under the Environment Protection Act 1986, which included grant of No Objection Certificates for extraction of ground water, advisories and directions wherever necessary. However, CGWA confined its activities to a very small number of areas despite a large number of areas where the ground water table was very low. It restricted itself to a small number of depleted areas and applied its guidelines and regulatory measures only to those areas on the pretext of calling them notified areas, without explaining any distinction between notified and non‑notified areas where depletion had the same impact. The principal obligation of CGWA is to maintain the ground water table by taking effective steps for recharge, restoration and rejuvenation, and to regulate extraction of ground water in stressed areas. Instead, CGWA has become a licensing authority permitting charitable extraction of ground water in stressed, critical, semi‑critical and over‑exploited areas, with virtually no attempt to deny or prevent abstraction where water levels have become extremely low., In order to determine categories of ground water level, the quantity of abstraction and level of recharge were used as the basis. Where recharge was more and abstraction was up to 70 % of recharge, the ground water level was classified as safe. Where abstraction was 70‑90 % of recharge, the level was classified as semi‑critical. Where abstraction was more than 90 % but less than 100 % of recharge, the level was classified as critical. Where abstraction equaled or exceeded 100 % of recharge and recharge was less, resulting in a continuous fall in ground water level, the category was over‑exploited. Evidently, when extraction exceeds recharge, water levels deplete continuously, and allowing extraction in such cases would cause irreparable environmental damage. CGWA issued six sets of guidelines up to 2020 (1999, 2009, 2012, 2015, 2018 and 2020), but effective regulatory provisions are still awaited., Prior to 2020, whenever guidelines were issued, CGWA confined its function only to notified areas. The 2018 guidelines designated only 162 areas as notified for regulation of ground water extraction in the entire country. This approach was condemned by the Tribunal and the 2018 guidelines were held inconsistent with the Supreme Court’s directions in M.C. Mehta v. Union of India & Others (1997) and with Tribunal directions issued from time to time. Consequently, CGWA was directed not to give effect to the 2018 guidelines. In the 43rd meeting of CGWA held on 27 December 2019, it decided to abandon the practice of notified areas and made the 2020 guidelines applicable irrespective of notification., Unfortunately, the 2020 guidelines, although addressing some of the infirmities pointed out by the Tribunal, still retain the same shortcomings, causing constant depletion of ground water across the country, including the State of Uttar Pradesh, particularly in districts Gautam Buddha Nagar and Ghaziabad where units PP‑1 to PP‑3 are located. The Uttar Pradesh Ground Water Monitoring Report (2019‑2020) published in April 2021 shows a declining trend in 72.30 % of the monitoring wells (556) over a ten‑year period, with a decline of 0‑20 cm per year observed in 43.30 % of wells, 20‑40 cm per year in 16.64 % and more than 40 cm per year in 12.35 %. The low decline is spread across the state but is dominant in the eastern and central parts and along the Terai belt, while higher decline occurs in most districts of the western and southern regions. The post‑monsoon trend is similarly discouraging, with a decline observed in 66.78 % of wells; 0‑20 cm per year in 34.39 % of wells, 20‑40 cm per year in 17.13 % and more than 40 cm per year in 15.24 %. Higher decline is mostly in the western, north‑western and southern parts and along the Yamuna River., In view of the above facts, we have no doubt that CGWA possesses powers to regulate ground water by taking all appropriate steps, but it has failed to do so. Repeated depreciation by the Tribunal has not impacted CGWA, which continues in a defiant attitude. CGWA has neither functioned as directed by the Supreme Court in M.C. Mehta v. Union of India nor have its directions and guidelines been consistent with the Environment Protection Act 1986. Instead of protecting and preserving the ground water table, CGWA is more interested in allowing charitable abstraction of ground water even in stressed areas without water audit, impact assessment report, carrying capacity study or other relevant factors., We answer questions (iii) and (iv) accordingly. We now consider questions (v), (vi) and (vii) together., CGWA has proceeded as if groundwater, a natural resource, is its own property and can be arbitrarily allowed to be consumed and exhausted by any individual or group for economic and business interest, potentially at the cost of society and future generations. It has been repeatedly reminded that natural wealth is national property, held in trust by the government, and there is an obligation to prevent its indiscriminate exploitation for mere commercial purposes. People have a right to ensure that natural resources are not frittered away in a manner that may cause irreversible environmental damage., Subsequently CGWA abdicated its responsibility, statutory obligation and powers with regard to ground water when the Uttar Pradesh Ground Water Management Regulation Act 2019 was enacted. As a notified authority under section 5 of the Environment Protection Act 1986, CGWA ought to have regulated abstraction of ground water in stressed areas, but it allowed state authorities to act contrary to CGWA guidelines. This approach is neither appreciable nor condonable., In State of Tamil Nadu v. Hind Stone & Others (1981) 2 SCC 205, the Court said: ‘Rivers, forests, minerals and other resources constitute a nation’s natural wealth. These resources are not to be frittered away and exhausted by any one generation. Every generation owes a duty to succeeding generations to develop and conserve the natural resources of the nation in the best possible way.’ In Lafarge Umiam Mining Private Limited v. Union of India & Others (2011) 7 SCC 338, the Court observed: ‘Universal human dependence on environmental resources for basic needs makes it impossible to refrain from altering the environment. Consequently, environmental conflicts are ineradicable and environmental protection is always a matter of degree, requiring choices about the appropriate level of protection and the risks to be regulated.’ In M.C. Mehta v. Union of India & Others (2004) 12 SCC 118, the Court held: ‘The natural sources of air, water and soil cannot be utilized if the utilization results in irreversible damage to the environment. There has been accelerated degradation of the environment primarily due to lack of effective enforcement of environmental laws and non‑compliance with statutory norms.’, Undeterred by the Apex Court’s pronouncements, CGWA has proceeded in a callous and defiant manner, permitting massive illegal exploitation of ground water in extremely stressed areas, unconcerned with the consequences. The record shows that project proponents were granted No Objection Certificates by CGWA on 28 September 2015, 3 October 2016 and 31 January 2018, as per CGWA’s reply dated 26 August 2020. CGWA stated that PP‑1 was in the Dadri block, a semi‑critical category, while PP‑2 and PP‑3 were in the Rajapur and Bisrakh blocks, both over‑exploited. At that time CGWA was following the 2015 guidelines, which listed only one notified area in Uttar Pradesh – the Municipal Corporation of Ghaziabad, District Ghaziabad. The blocks where the PPs are situated were in the over‑exploited category but, being non‑notified, CGWA did not consider them within its regulatory domain and issued NOCs in a casual manner. Even though the PPs are water‑intensive industries, NOCs were issued without impact assessment or water audit, contrary to Tribunal orders., Ground water level data for District Gautam Buddha Nagar and Ghaziabad, from publicly available sources, are as follows: (i) A district brochure prepared by Dr. B.C. Joshi, Scientist‑B, Central Ground Water Board, for 2008‑09 reported four monitoring wells and seven piezometers in the district as of 31 March 2007, and noted that no block in the district was notified by CGWA. The report highlighted that groundwater in deeper zones becomes brackish to saline at more than 1000 µS/cm at 25 °C in sectors 8 and 9, and that depletion of groundwater levels locally in NOIDA and Greater NOIDA is attributed to over‑exploitation, with higher manganese concentrations reported. Development percentages were 74.64 % in Bisrakh, 25.98 % in Dadri, 58.14 % in Dankaur and 62.77 % in Jewar, with an average of 51.40 %, all classified as safe. (ii) A subsequent CGWB report showed that the water table in NOIDA fell from 18.22 m in 2013 to 24.13 m in 2017, and in Greater NOIDA from 7.95 m in 2013 to 11.11 m in 2017, an average decline of about 1.5 m per year. (iii) The Jal Shakti Ministry of Uttar Pradesh reported that out of 820 blocks identified in the state, 151 were semi‑critical, 47 critical and 82 over‑exploited, with the entire district of Gautam Buddha Nagar and Ghaziabad classified as over‑exploited from 2011 to 2020. (iv) As of March 2017, CGWA reported that the blocks of Bhojpur, Loni, Rajapur and Ghaziabad city in district Ghaziabad were in the over‑exploited category.
id_481	13	As per Guidelines 2012 and 2015, issued by the Central Ground Water Authority, under Chapter B, No Objection Certificate to non‑notified areas would have been issued for industries but where the site is in an over‑exploited category, it says that withdrawal of ground water should not exceed 50 % of the recharge quantity and may be permitted subject to undertaking of recharge measures., As per the stand of the Central Ground Water Authority, Guidelines 2012 read with Notification dated 06‑08‑2014, since only 162 units out of 1071 over‑exploited units were notified, project proponents were in the category of non‑notified, therefore granted No Objection Certificate despite the fact that the areas were in over‑exploited category as per State Government documents and as per the Central Ground Water Authority, critical category., No Objection Certificate dated 28‑09‑2015 permitted Project Proponent 1 to abstract 1 691 m³/day (and not exceeding 507 300 m³/year) of ground water through three existing tube wells. It also provided that Project Proponent 1 shall implement ground water recharge measures to the tune of 20 4042 m³/year but nothing has been said by the Central Ground Water Authority in its reply and no monitoring mechanism has been provided. The condition was placed on record but without any serious or apparent intention of having it complied with. Fifty percent of recharge in semi‑critical area was provided. Even in safe category, withdrawal could not be more than 200 % of recharge quantity. From either angle, neither annual quantum of extraction was in accordance with Guidelines 2012 nor quantum of recharge., Project Proponent 2 was granted No Objection Certificate by the Central Ground Water Authority on 03‑10‑2016. On that date, Guidelines 2012 and 2015 both provided that industries using water as raw material/water‑intensive industries shall not be granted No Objection Certificate for ground water withdrawal in over‑exploited area. In annexure to the Guidelines 2015, water‑intensive industries were specified as follows: Packaged drinking water; Mineral water plant; Tannery; Distillery; Brewery; Soft drink; Paper & pulp‑Fertilizer; Textile Dyeing; Textile Printing; Textile Spinning; Sugar; Dairy Product; Water Park & Amusement centre., Project Proponent 2 obviously is a water‑intensive industry under the aforesaid list. Admittedly it was in the area identified as over‑exploited, hence could not be granted any No Objection Certificate but was allowed only for the reason that it was an existing industry and in a non‑notified area. The same thing also applied to the No Objection Certificate granted to Project Proponent 3 on 31‑01‑2018 as it was also a water‑intensive industry and could not have been granted No Objection Certificate as per Guidelines 2012 or 2015 but for the lack of a notified area. Preservation and protection of ground water was given a complete go‑by., From the record, it is also evident that the No Objection Certificate issued to Project Proponent 1 was for three years and therefore expired on 28‑09‑2018. In respect of Project Proponent 2 and 3, the period of No Objection Certificate was two years and expired on 02‑10‑2018 and 02‑01‑2020, respectively., The stand of the Central Ground Water Authority and the project proponents is that before expiry of the period, they applied for renewal and since renewal could not be made in view of the order passed by the National Green Tribunal, restraining it, hence as per directions issued by the Ministry, project proponents were deemed to have No Objection Certificates till their applications are decided and, therefore, they continued to abstract ground water. This defense cannot be accepted and has to be rejected for the reason that there was no order of stay passed by the National Green Tribunal. The order says that if abstraction of ground water is to be allowed in over‑exploited areas, the Central Ground Water Authority shall make Impact Assessment, and only thereafter consider request for abstraction of ground water in over‑exploited areas. The Central Ground Water Authority, instead of such assessment, decided for not passing any order and wrongly conveyed that the Tribunal has prevented. Later, the Uttar Pradesh Ground Water Management (Regulation) Act, 2019 was enacted, and the Central Ground Water Authority found it convenient to leave everything in the hands of authorities under the said Act. Many provisions in State law were inconsistent with guidelines of the Central Ground Water Authority but even that aspect was ignored by the Central Ground Water Authority. It could not have shirked away from its responsibility and liability. The Central Ground Water Authority was under a statutory obligation to function in a manner so as to achieve the objective and purpose for which it was constituted., Extraction of ground water in over‑exploited areas was allowed by the Central Ground Water Authority in a mechanical manner with simply a paper condition that ground water will be recharged without ensuring compliance thereof. Even the condition of recharge was not complied. Project proponents constructed rooftop harvesting system of a small quantity. They tried to justify the recharge condition stating that they adopted natural ponds in villages in the vicinity and served by desilting etc. Adoption of existing village ponds is not compliance of the recharge condition imposed in No Objection Certificates. For this purpose, the Government of India, Ministry of Water Resources has issued Common Guidelines for November 2013. Artificial recharge sources have to be as per No Objection Certificate conditions read with guidelines of the Central Ground Water Authority. These were neither observed nor considered. Authorities have also proceeded in a mechanical manner. They have not examined whether conditions of earlier No Objection Certificates have been complied with or not., No Objection Certificates issued by the Uttar Pradesh Ground Water Department are ex facie illegal. Project Proponent 1 has been given a No Objection Certificate for the period of 28‑09‑2018 to 27‑09‑2023. On 28‑09‑2018 the Uttar Pradesh Ground Water Management (Regulation) Act, 2019 had not yet been enacted. The Act came into force on 02‑10‑2019. It is inconceivable that a No Objection Certificate under such statute could have been issued for a period when the statute itself was not in existence. Similarly, the Uttar Pradesh Ground Water Management Rules, 2020 came into force on 25‑02‑2020. Both the Act and the Rules are prospective. A No Objection Certificate under the above Rules obviously could not have been issued for a date earlier than the date of enforcement of the Rules. The Rules contemplate application in prescribed form under the Rules. When an application on prescribed form under the Uttar Pradesh Ground Water Management Rules, 2020 could not have been filed before 25‑02‑2020, a No Objection Certificate under such Rules, for a date earlier than 25‑02‑2020 is inconceivable. In any case, it is admitted that applications under the Uttar Pradesh Ground Water Management Rules, 2020 were submitted in January and February 2021. That being so, a No Objection Certificate could not have been issued for a date earlier than the date of submission of applications under the Rules., Further, the validity period of No Objection Certificates issued by the Uttar Pradesh Ground Water Department under the Uttar Pradesh Ground Water Management (Regulation) Act, 2019 is five years. For Project Proponent 1, it is 28‑09‑2018 to 27‑09‑2023 while for Project Proponent 3 it is 03‑01‑2020 to 02‑01‑2025. Guidelines 2020 of the Central Ground Water Authority, vide Paragraph 11.0 (v), says that for industries in critical, semi‑critical and safe areas, the period of No Objection Certificate would be three years and in over‑exploited area, it would be two years. No Objection Certificates for a period contrary to Guidelines 2020 are impermissible and ex facie illegal., In accordance with the guidelines, a public notice dated 26‑10‑2020 was issued by the Central Ground Water Authority requiring submission of Impact Assessment Report and Water Allocation Report, necessary for processing applications for No Objection Certificate. The Uttar Pradesh Ground Water Department, however, proceeded without such compliance and issued No Objection Certificates within a very short period without caring for such conditions and also without verifying compliance of conditions of earlier No Objection Certificates. Project Proponent 2 was not issued any No Objection Certificate after expiry of the earlier No Objection Certificate, hence abstraction of ground water by Project Proponent 2 after expiry of the No Objection Certificate was illegal., Ground water has been allowed to be abstracted for commercial purposes in over‑exploited areas without any impact study or effective steps for rain water harvesting for recharge of ground water., Asking for payment of ground water charges, by itself, is not beneficial and helpful for preservation and protection of the water table of ground water in areas where it has gone down drastically. It is against the precautionary principle, sustainable development as well as intergenerational equity principles., In the order dated 20‑07‑2020 passed in OA No. 176/2015 (supra), the National Green Tribunal made it clear that the regulatory authority must direct its policy towards preventing further depletion of and upgrading groundwater levels based on impact assessment. The Central Ground Water Authority, being a statutory regulator of the country, has to exercise overriding power in the form of statutory regulatory orders. There can be no exception for industries, being against the sustainable development principle. Deep underground water belongs to the State and is governed by the public trust doctrine. The State is under duty to protect ground water against excessive exploitation., In direction (d) of paragraph 39 of the order dated 20‑07‑2020 (supra), it is stated that there must be no general permission for withdrawal of ground water, particularly to any commercial entity, without environmental impact assessment of such activity on individual assessment units in cumulative terms covering carrying capacity aspects by an expert committee. In the face of the above directions, it was not open to the authorities, either State authorities or the Central Regulatory Authority, to issue any No Objection Certificate to the respondents project proponents in a mechanical manner, without complying the specific directions issued by the Tribunal which are binding., We are informed that various schemes have been launched by the Government of India for public benefit, for availability of water i.e., Jal Shakti Abhiyan, Atal Bhujal Yojana (ATAL JAL), National Water Mission, Pradhan Mantri Krishi Sinchayee Yojana, Swajaldhara, etc. We have no reason to doubt that political bureaucrats forming the Government have a good intention for the larger public welfare and interest. This is evident from various welfare schemes and policies launched from time to time but the problem lies with the administrative executing bodies who do not appear to have a similar welfare‑oriented approach. It appears that they are more interested in passing their time, tinkering with papers, putting notes after notes but without any effective, productive and fruitful execution of those policies. Administrative executing authorities must realize that in present, they may be able to pass their time but what they will be handing over to the coming generation is deterioration in environment, pollution in air or water or deficit of water or water scarcity, whether underground or surface water or water bodies. This kind of legacy, if left over to be handed to the coming generations, will ruin them, make their survival difficult, and is against society and the nation as well. It will be a blatant breach of intergenerational equity and trust. The administrative executives, responsible for execution of policies, are accountable for conservation, protection and preservation of environment and cannot take a stand of neutrality, inaction or benefit of certain individuals on economic considerations, ignoring common people's interest and requirement., The litigation commenced in the Supreme Court of India in the 20th century, has continued its journey in the 21st century. More than two decades have passed but still what worried the Supreme Court of India in 1996 when orders were passed in M.C. Mehta vs. Union of India (1997) (supra), the situation has not improved. Instead it has worsened further and deteriorated a lot. The number of areas classified as over‑exploited areas is continuously increasing and ground water level is continuously depleting, expanding its area of depletion., The continued withdrawal of ground water by project proponents even after expiry of No Objection Certificates on 28‑09‑2018, 03‑10‑2018 and 31‑01‑2020 has been justified by the Central Ground Water Authority and the Uttar Pradesh Pollution Control Board on the ground that they applied for No Objection Certificate before expiry but no order could be passed by the Central Ground Water Authority since there was a stay order passed by the Tribunal. The Government of India issued an administrative instruction permitting such project proponents to continue to extract ground water as if the No Objection Certificate is deemed granted. Subsequently, in the State of Uttar Pradesh, the Uttar Pradesh Ground Water Management Act, 2019 was enacted pursuant to which the project proponents applied before authorities under the Uttar Pradesh Ground Water Management Act, 2019 and No Objection Certificates for a further five years have been issued. This defense has no merit and is wholly misconceived as we have already demonstrated that No Objection Certificates issued by the Uttar Pradesh Ground Water Department are ex facie illegal. There is also no concept of deemed grant of No Objection Certificate or consent etc. in environmental laws. Also, there was no restraining order of the Tribunal. We find no order passed by the Tribunal restraining the Central Ground Water Authority from passing any order on renewal of No Objection Certificate for abstraction of ground water. The order passed in OA No. 176/2015 (supra) dated 03‑01‑2019 was that before grant of No Objection Certificate, when abstraction of ground water is sought in over‑exploited areas, impact assessment study shall be conducted by the Central Ground Water Authority. What transpired is that the Central Ground Water Authority, for reasons best known to it, acted wholly illegally, did not conduct any impact assessment study and falsely claimed that since the Tribunal has granted stay, therefore, it cannot pass an order on application for No Objection Certificate. The Tribunal's order directed the Central Ground Water Authority to proceed in a manner so that depletion of ground water conditions may be checked and there may not be any irreversible permanent damage to the environment but the Central Ground Water Authority itself failed in observing procedure and took shelter behind a false pretext though failure was on its part., Further, once a No Objection Certificate has expired, there could not have been any deemed grant of No Objection Certificate. Grant of No Objection Certificate means a positive study and assessment of various environmental conditions, the compliance aspect on the part of proponents in respect to the No Objection Certificate, if already issued, and if it is a new one, then investigation into the conditions that the new proponent satisfies all the requisites necessary for protection of environment. Hence, there cannot be a concept of deemed grant of No Objection Certificate and for the same reasons, the Supreme Court of India has rejected action of authorities in granting sanctions, clearances etc., from back date, i.e., retrospectively. Same reasons would apply against the concept of deemed No Objection Certificate., Be that as it may, the concept of deemed No Objection Certificate has been stated in Guidelines 2020 which was published on 24‑09‑2020 while the No Objection Certificates of all three proponents had expired much earlier thereto. That being so, the concept of deemed No Objection Certificate contained in Guidelines 2020 could not have been applied to Project Proponent 1 to 3. It is also impermissible for project proponents to rely on Guidelines 2020 for the applications submitted for renewal prior to 24‑04‑2020 since those applications were not under Guidelines 2020 and the above guidelines are not operating retrospectively., What prevailed with the authorities to support extraction of ground water and that too in highly stressed areas by project proponents is better known to them but in absence of any otherwise material or reasonable explanation, we have no reason but to infer that the stand taken by respondents supporting abstraction of ground water by project proponents after expiry of No Objection Certificates is for something other than bona fide and not legal in law., High degree of negligence on the part of authorities is also evident from the fact that in earlier No Objection Certificates there was a specific condition for recharge of ground water and the quantity was also mentioned in No Objection Certificates issued to project proponents, but its compliance was never bothered. In the Joint Committee Report, Action Taken Report submitted by the Uttar Pradesh Pollution Control Board and in the response of the Central Ground Water Authority, there is not even a whisper whether Project Proponent 1 to 3 actually complied with the condition of recharge of the water, partially or wholly, or even to some extent. Thus, ex facie, No Objection Certificates granted to project proponents and allowing them to extract ground water were neither valid nor legal., Project proponents are justified in contending that earlier they were granted No Objection Certificates by the Central Ground Water Authority, whether legal or not, but they bona fide believed it to be legal and, therefore, extraction of ground water by them is not illegal. They proceeded to extract ground water under the authority of No Objection Certificates dated 28‑09‑2015, 03‑10‑2016 and 31‑01‑2018, respectively, issued by the Central Ground Water Authority. Though the above No Objection Certificates issued to project proponents were not valid as they permit degradation of ground water in over‑exploited areas, hence violated provisions of the Environment Protection Act, 1986, did not fulfil requirements of the concerned guidelines, even if No Objection Certificates are tested as per Guidelines, but since No Objection Certificates are admitted by the Central Ground Water Authority and it has defended also, we find it difficult to hold project proponents at fault. They acted bona fide under those No Objection Certificates. Fault was of the Central Ground Water Authority., However, we find no valid authority available to project proponents in continuing to extract ground water on and after expiry of No Objection Certificates issued to them, i.e., on or after 28‑09‑2018, 03‑10‑2018 and 31‑01‑2020. Further, project proponents having failed to recharge ground water which was a condition of the No Objection Certificates have committed default. They are liable to pay environmental compensation for illegal extraction of ground water in stressed areas and also for restoration/recharge/rejuvenation., The Recharge/Replenishment of Ground Water: As we have already discussed, project proponents were required to ensure replenishment of ground water. The quantum of ground water to be replenished by Project Proponent 1 and 3 was: Project Proponent 1 – 204 042 m³/year; Project Proponent 3 – 608 000 m³/year., With regard to replenishment, Project Proponent 1 and 2 in their reply have not stated anything as to how the condition of replenishment was complied by them and whether it was actually complied or not. Project Proponent 3 in its reply has stated that it constructed a rain water harvesting system capable of providing 13 833.26 m³ water per year i.e., about 4 % which is almost negligible. Project Proponent 3 has further stated that it has adopted 13 village ponds in the nearby villages and the total area of those ponds comes to about 20.72 hectares which have potential of recharge of ground water to the extent of 622 680 m³ per year. That is how it has tried to explain the compliance of condition of replenishment of ground water. This stand taken by Project Proponent 3 is thoroughly misconceived. The existing natural ponds in the villages may be adopted by industrial units for the purpose of maintenance etc., but the replenishment of ground water which was already there through those ponds in a natural way cannot be taken credit by an industrial unit only on the ground that it is maintaining those ponds. Adoption of village ponds which are naturally existing may help the villages towards maintenance of those ponds but cannot contribute to give benefit to an industrial unit to relieve its statutory requirement of replenishment of ground water after extraction of ground water in stressed area. For this purpose, the industrial unit has to take out its own measures of artificial recharge of ground water but that has not been done and, therefore, we are clearly of the view that condition of replenishment of ground water has not been complied by project proponents in words and spirit and also in substance. Project Proponent 3 has also tried to explain that extraction of ground water has reduced in the last three years i.e., 2018, 2019 and 2020 which shows that ground water level has increased. Here also, we find no substance in the submission for the reasons that since March 2020, extraordinary situation created due to the pandemic situation caused by COVID‑19, industrial production etc. has been affected heavily, requiring lesser production and lesser consumption of raw material etc. Therefore, the alleged lesser extraction of ground water is for different reasons. Even ground water level increase is attributed to lesser extraction of ground water for the above reasons and no benefit can be claimed by project proponents on this account., In our view, the Central Ground Water Authority is responsible for permitting illegal extraction of ground water, having aided, abated and assisted project proponents in such illegal extraction. Its role is very disappointing. It has not performed as directed by the Supreme Court of India in M.C. Mehta vs. Union of India (supra). Instead of acting as protector, it has functioned as perisher and demolisher. Even when period of No Objection Certificates expired, project proponents applied for renewal, the Central Ground Water Authority neither proceeded to consider such applications as per directions of the Tribunal nor acted to check continued abstraction without No Objection Certificate. It simply watched project proponents continue to do something which was illegal. It behaved as a passive spectator. A statutory regulator failed to regulate., The Uttar Pradesh Ground Water Department has also done something which was unexpected from a government department and that too when it is performing the role of statutory regulator. It has surpassed all degrees of patent illegalities; some such illegalities, we have pointed out above. It is true that the polluter pays principle applies to the person who causes pollution but such person may also be those who assisted, coordinated, cooperated and helped in causing pollution. The Central Ground Water Authority and the Uttar Pradesh Ground Water Department satisfy all these characteristics. We, therefore, hold the Central Ground Water Authority and the Uttar Pradesh Ground Water Department guilty and responsible for permitting illegal extraction of ground water, for years together and even till date, by project proponents., The Central Ground Water Authority, also, in a wholly illegal manner, abdicated its authority of regulating ground water on the pretext that after enactment of the Uttar Pradesh Ground Water Management (Regulation) Act, 2019, matter of No Objection Certificate shall be dealt with by State authorities under the said Act, though a similar defense taken by the Ministry of Environment, Forests and Climate Change was rejected by the Supreme Court of India in M.C. Mehta vs. Union of India & Others (1997) (supra) and consistently it has been reminded in other matters also where similar issues were raised, in various judgments of the Supreme Court of India as well as the Tribunal. The Central Ground Water Authority has also failed to ensure that the Uttar Pradesh Ground Water Department may not act contrary to guidelines issued by the Central Ground Water Authority. We have demonstrated how No Objection Certificates issued by the Uttar Pradesh Ground Water Department contravened Guidelines 2020 of the Central Ground Water Authority. Therefore, we find the Central Ground Water Authority directly responsible in causing pollution, damaging environment severely, by allowing illegal activities of extraction of ground water. The Central Ground Water Authority also failed to ensure recharge of ground water by project proponents. The confidence reposed on the Central Ground Water Authority by the highest court has been belied., In our view, the Central Ground Water Authority and the Uttar Pradesh Ground Water Department, both are, therefore, liable to pay environmental compensation for causing damage/deterioration to environment, are responsible for its restoration, restitution and rejuvenation etc., including recharge of ground water., We answer all three questions no. (v), (vi), and (vii) accordingly., Now, coming to the last question (viii), we are of the view that project proponents are responsible for illegal extraction of ground water at least after expiry of No Objection Certificates issued to them by the Central Ground Water Authority. They continued to extract ground water without any authority. Further, they are also liable to pay environmental compensation for causing loss to environment by failing to comply with the most crucial condition of No Objection Certificates, i.e., recharge of water. In the Guidelines itself, extraction of ground water was co‑related with recharge. Project proponents could not have ignored to comply with the aforesaid condition of recharge. Having committed the said default, they are liable to pay environmental compensation for the said cause/loss, besides other legal action civil, criminal as the case may be. Thus, project proponents shall pay environmental compensation for abstraction of ground water after expiry of No Objection Certificates and failing to recharge ground water as per the condition., Computation of environmental compensation and methodology for computation is the next aspect, to be considered in this case., The question of assessment of environmental compensation includes the principles/factors/aspects necessary to be considered for computing/assessing/determining environmental compensation. Besides judicial precedents, we find little assistance from statute. Section 15 of the National Green Tribunal Act, 2010 talks of relief of compensation and restitution. It confers wide powers on this Tribunal to grant relief by awarding compensation for the loss suffered by individuals and/or for damage caused to environment. Section 15 reads as under: (1) The Tribunal may, by an order, provide, a) relief and compensation to the victims of pollution and other environmental damage arising under the enactments specified in Schedule I (including accident occurring while handling any hazardous substance); b) restitution of property damaged; c) restitution of the environment for such area or areas, as the Tribunal may think fit. (2) The relief and compensation and restitution of property and environment referred to in clauses (a), (b) and (c) of sub‑section (1) shall be in addition to the relief paid or payable under the Public Liability Insurance Act, 1991 (6 of 1991). (3) No application for grant of any compensation or relief or restitution of property or environment under this section shall be entertained by the Tribunal unless it is made within a period of five years from the date on which the cause for such compensation or relief first arose: provided that the Tribunal may, if it is satisfied that the applicant was prevented by sufficient cause from filing the application within the said period, allow it to be filed within a further period not exceeding sixty days. (4) The Tribunal may, having regard to the damage to public health, property and environment, divide the compensation or relief payable under separate heads specified in Schedule II so as to provide compensation or relief to the claimants and for restitution of the damaged property or environment, as it may think fit. (5) Every claimant of the compensation or relief under this Act shall intimate to the Tribunal about the application filed to, or, as the case may be, be, compensation or relief received from any other Court or authority., Sub‑section (1) enables the Tribunal to make an order providing relief and compensation to (i) the victims of pollution, (ii) other environmental damage arising under the enactments specified in Schedule I. The Tribunal is also conferred power to pass an order providing relief for restitution of property damage. Section 15(1)(c) enables the Tribunal to pass an order providing relief for restitution of the environment for such area or areas, as the Tribunal may think fit. Section 15 sub‑section (4) says that the Tribunal may divide compensation or relief payable under separate heads specified in Schedule II, having regard to the damage to public health, property and environment so as to provide compensation or relief, (i) to the claimants and (ii) for restitution of the damaged property or environment, as it may think fit., Schedule II of the National Green Tribunal Act, 2010 gives a list of heads under which compensation or relief for damage may be granted. It has fourteen heads in total out of which items (a) to (f), (l), (m) and (n) relate to loss, damage etc. sustained to the person or individual or their property. Items (i) to (k) relate to harm, damage, destruction etc. of environment or environmental system including soil, air, water, land, and ecosystem. Items (i) to (k) of Schedule II of the National Green Tribunal Act, 2010 are as follows: (i) Claims on account of any harm, damage or destruction to the fauna including milch and draught animals and aquatic fauna; (j) Claims on account of any harm, damage or destruction to flora including aquatic flora, crops, vegetables, trees and orchards; (k) Claims including cost of restoration on account of any harm or damage to environment including pollution of soil, air, water, land and ecosystems., Items (g) and (h) relate to expense and cost incurred by the State in providing relief to affected persons; and loss caused in connection with activity causing damage. The damage to environment covers a very wide variety of nature as is evident from the definition of environment under section 2(c) which is inclusive and says; environment includes water, air, and land and the interrelationship, which exists among and between water, air and land and human beings, other living creatures, plants, microorganisms and property., Section 20 of the National Green Tribunal Act, 2010 requires the Tribunal to apply principles of sustainable development, the precautionary principle and the polluter pays principle., Thus, broad principles of environmental laws are given but the methodology for assessing/determining compensation is not provided in the statute. Even Rules framed under the National Green Tribunal Act, 2010 are silent on this aspect. The issue of determination of environmental compensation is significant in the sense that it should be proportionate to or bears a reasonable nexus with the environmental damage and its remediation/restoration. Similarly in case of compensation to be determined for a victim, it needs to co‑relate to injury caused or damage suffered by such person as also cost incurred for treatment/remediation., Taking into consideration multifarious situations relating to violation of environmental laws vis‑à‑vis different proponents, nature of cases involving violation of environmental laws can be categorised as follows: (i) Where projects/activities are carried out without obtaining requisite statutory permissions/consents/clearances/No Objection Certificates etc., affecting environment and ecology. For example, environmental compensation under EIA 2006; consent under Water Act 1974 and Air Act 1981; authorisation under Solid Waste Management Rules 2016 and other Rules; and No Objection Certificate for extraction and use of ground water, wherever applicable, and similar requirements under other statutes. (ii) Where proponents have violated conditions imposed under statutory permissions, consents, clearances, No Objection Certificates etc. affecting environment and ecology. (iii) Where proponents have carried out their activities causing damage to environment and ecology by not following standards/norms regarding cleanliness/pollution of air, water etc., The above categories are further sub‑divided, i.e., where the polluters/violators are corporate bodies/organisations/associations and groups of people, in contradistinction to individuals; and another category, the individuals themselves responsible for such pollution., Further category among the above classification is, where, besides pollution of environment, proponents/violators action also affect the community at large regarding its source of livelihood, health etc., The next relevant aspect is whether damage to environment is irreversible, permanent or is capable of wholly or partially restoration/remediation.
id_481	14	Determination/computation/assessment of environmental compensation must not only conform to the requirement of restoration/remediation but should also take care of damage caused to the environment, to the community, if any, and should be preventive, deterrent and to some extent punitive. The idea is not only for restoration/remediation or to mitigate damage/loss to environment, but also to discourage people or proponents from indulging in activities that cause damage or loss to the environment., To impose appropriate environmental compensation for causing harm to the environment, besides other relevant factors, one has to understand the kind and nature of harm cost. This includes risk assessment. The concept of risk assessment will include human health risk assessment and ecological risk assessment. The United States Environmental Protection Agency has provided a guideline to understand harm caused to environment as well as people. For the purpose of human‑health risk assessment, it comprises three broad steps, namely, planning and problem formulation; effects and exposure assessment; and risk categorization. The first part involves participation of stakeholders to get input; the second aspect examines health effects of hazardous substances as well as likelihood and level of exposure to the pollutant; and the third step involves integration of effects and exposure assessment to determine risk., Similarly, ecological risk assessment is an approach to determine risk of environmental harm by human activities. It follows three major steps: problem codification; analysis of exposure; and risk characterization. The first part encompasses identification of risk and what needs to be protected. The second step focuses on crystallisation of factors that are exposed, degree of exposure and whether exposure is likely to cause adverse ecological effects. The third step comprises risk assessment and risk description., In totality, the problem is multi‑fold and multi‑angular. The solution is not straight but involves various shades and nuances and varies from case to case. Internationally, there is no thumb‑rule to assess damage and loss caused to the environment due to activities carried out individually or collectively, and for remediation/restoration. Different considerations are applicable and have been applied., In India, where commercial activities were carried out without obtaining statutory permissions, consents, clearances or NOC, courts have, in some matters, determined compensation by fixing a certain percentage of the cost of the project. In other cases, the volume of business transactions, turnover, and magnitude of the establishment of the proponent have also been considered as guiding factors to determine environmental compensation., Nature is extremely precious. It is difficult to price elements of nature such as light, oxygen, water in its various forms. When nature is exploited beyond its carrying capacity, the results are harmful and dangerous. People often do not understand the value of what nature provides for free. Recently, during the second wave of the Covid‑19 pandemic, scarcity of oxygen proved its worth; in many cases the amount offered could not save lives. Damage to the environment may not reflect on individuals immediately and may take time, but injury is there. In such cases, the process of determination of compensation may be different., In an article, the cost of pollution – Environmental Economics by Linas Cekanavicius (2011), it is suggested that where commercial activities have been carried out without consent and pollution standards have been violated, Total Pollution Cost (hereinafter referred to as TPC) can be applied. It combines the cost of abatement of environmental pollution and the cost of pollution‑induced environmental damage. The formula is TPC(z) = AC(z) + ED(z), where z denotes the pollution level. Further, clean‑up cost or remediation cost of pollution estimated to be incurred by authorities can also be used to determine environmental compensation., When there is a collective violation, the issue of apportionment of cost arises. Where more than one violator is involved, apportionment may not be equal since each user’s capacity to produce waste, contribution to overall costs, etc., are relevant. The element of economic benefit to the company resulting from the violation is also important; otherwise observations of the Supreme Court of India that the amount of environmental compensation must be deterrent will be obliterated. Article 14 of the Constitution says that unequal persons cannot be treated equally, and this must be taken care of. Determination, assessment, and computation of environmental compensation cannot be arbitrary; they must be founded on objective and intelligible considerations and criteria. Simultaneously, the Supreme Court of India has said that its calculations must be based on a principle which is simple and can be applied easily. Expert assessment may be sought, but sometimes experts rely on their own convictions and fail to take into account judicial precedents that have advanced the cause of environment by applying the principles of sustainable development, precautionary approach and polluter pays., Clean‑up cost or TPC may be a relevant factor to evaluate damage, but in the diverse conditions of this country, no single factor or formula may serve the purpose. Determination should be a quantitative estimation; the amount must be deterrent to the polluter or violator. Though there is some element of subjectivity, assessment and computation must be founded on objective considerations. Appropriate compensation must cover not only the violation of law by the polluter but also damage to the environment, its remediation or restoration, loss to the community at large, and other relevant factors such as deterrence and penalty., The Committee, in its reports dated 21 June 2021 and 6 August 2021, made certain recommendations for determining environmental compensation under specific heads. The computation by the Committee is based on formulas it suggested. We have examined the mechanism suggested by the Committee and the values provided to factors such as the constant quotient and the value of R (Rupees) to find out whether they satisfy all aspects necessary to determine appropriate environmental compensation. Applying the principle of absolute liability, polluter pays, along with the precautionary principle and sustainable development, it has to be seen whether polluters are liable to pay environmental compensation as suggested by the Committee and also to undergo other statutory sanctions, including criminal prosecution, or whether computation of compensation requires some other method., Central Pollution Control Board (CPCB) Guidelines: CPCB has suggested, in a report titled ‘Report of the CPCB In‑house Committee on Methodology for Assessing Environmental Compensation and Action Plan to Utilize the Fund’, a methodology for assessment of environmental compensation that may be levied upon industrial establishments guilty of violation of environmental laws and causing damage, degradation or loss to the environment. The report does not encompass individuals, statutory institutions or the Government. The report, finalized in the meeting held on 27 March 2019, shortlisted six incidents for determining environmental compensation: (a) discharges in violation of consent conditions, mainly prescribed standards or consent limits; (b) non‑compliance with directions such as closure due to non‑installation of OCEMS or non‑adherence to action plans; (c) intentional avoidance of data submission or data manipulation by tampering with online continuous emission/effluent monitoring systems; (d) accidental discharges of short duration resulting in environmental damage; (e) intentional discharges to land, water or air causing acute injury or damage; and (f) injection of treated, partially treated or untreated effluents into groundwater., For the instances (a), (b) and (c), the report says that Pollution Index (PI) would be used as a basis to levy environmental compensation. CPCB has already published guidelines categorising industries into Red, Orange, Green and White, based on the concept of PI. The PI is arrived at after considering quantity and quality of emissions or effluents generated, types of hazardous waste generated and consumption of resources. PI of an industrial sector is a numerical value in the range of 0 to 100 and is represented as follows: PI = f (Water Pollution Score, Air Pollution Score and Hazardous Waste Generation Score)., Since the range of PI is 0 to 100, an increase in PI denotes an increasing degree of pollution hazard from the industrial sector. Accordingly, for determining environmental compensation in respect of cases covered by items (a), (b) and (c), the report applies the following formula: EC = PI × N × R × S × LF where EC is Environmental Compensation, PI is Pollution Index of the industrial sector, N is the number of days of violation, R is a factor in Rupees for EC, S is a factor for scale of operation, and LF is a location factor., The formula incorporates anticipated severity of environmental pollution in terms of PI, duration of violation in days, scale of operation (micro, small, medium or large industry) and location (proximity to large habitations). A note under the formula reads: (a) Industrial sectors are categorised as Red (PI 60‑100), Orange (PI 41‑59) and Green (PI 21‑40). Average PI values of 80, 50 and 30 may be taken for calculating environmental compensation for Red, Orange and Green categories respectively. (b) N is the period between the day of violation observed or the due date of direction compliance and the day compliance is verified by CPCB/SPCB/PCC. (c) R is a factor in Rupees, minimum 100 and maximum 500; the report suggests taking R as 250. (d) S is based on size of industry: 0.5 for micro or small, 1.0 for medium and 1.5 for large units. (e) LF is based on population of the city/town and location of the industrial unit. For units within municipal boundaries or up to 10 km from the boundary, LF values are: population 1‑<5 million = 1.25; 5‑<10 million = 1.5; 10 million and above = 2.0. LF is 1.0 for units located more than 10 km from the municipal boundary, and 1.0 for cities/towns with population less than one million. For notified ecologically sensitive areas, LF may be assumed as 2.0; for critically polluted areas, LF may be explored in future. (f) Minimum environmental compensation shall be Rs 5,000 per day. (g) To include a deterrent effect for repeated violations, EC may be increased exponentially: double on the first repetition, quadruple on the second, and eightfold on further repetitions. (h) If operations are inevitable and the violator continues beyond three months, EC may be increased by 2, 4 and 8 times for the second, third and fourth quarter respectively; beyond twelve months, operation will not be allowed. (i) Besides EC, the industry may be prosecuted or closure directions may be issued whenever required. A sample calculation (Table 1.2) shows that for all instances, EC for Red, Orange and Green categories varies from Rs 3,750 to Rs 60,000 per day., The report takes R as a factor in Rupees with a minimum of 100 and maximum of 500, suggesting an average of Rs 250. No material is provided to justify this range. Similarly, the factor S for scale of operation (0.5‑1.5) is prescribed solely on the basis of industry size, without detailed guidelines. The note also states that minimum environmental compensation would be Rs 5,000 per day. For the largest (large) industry, EC ranges from Rs 10,000 to Rs 60,000 per day, excluding actual loss to the environment and cost of remediation, including damage to flora, fauna and humans. Classification of industries for industrial policy, licensing or banking purposes is irrelevant for environmental assessment; a small industry may cause more pollution than a medium or large one, for example a brick kiln using coal., In respect of items (d), (e) and (f), the report says that determining environmental compensation requires consideration of two parts: immediate relief and long‑term relief such as remediation. Detailed investigations by expert institutions are required, based on which compensation will be decided. The second part of the report deals with utilization of the environmental compensation fund. CPCB will finalize a scheme for utilization of the fund for protection of the environment. Identified schemes include: industrial inspections for compliance verification; installation of continuous water quality and ambient air quality monitoring stations; preparation of comprehensive industry documents on clean technology; investigations of environmental damages and preparation of detailed project reports; remediation of contaminated sites; and infrastructure augmentation of urban local bodies and capacity building of State Pollution Control Boards and Pollution Control Committees., All the above, except item (e), relate to establishment or infrastructure for monitoring and prevention of pollution, which is the statutory duty and function of officials of the State Pollution Control Board and CPCB. It appears that CPCB has attempted to utilize the environment fund to meet expenses that are the responsibility of the Government., Chapter II of the report deals with determination of environmental compensation for violations of the Graded Response Action Plan (GRAP) in the National Capital Region. A fixed amount of environmental compensation is recommended in Table 2.1: for severe or emergency air quality conditions, Rs 1.0 crore; for severe, Rs 50 lakh; for very poor, Rs 25 lakh; for moderate to poor, Rs 10 lakh. Similar amounts are prescribed for non‑functional vapour recovery systems, construction sites exceeding 20,000 sq m, solid waste or garbage dumping in industrial estates, and failure to water‑sprinkle unpaved roads, with varying amounts as detailed in the table., Chapter III considers determination of environmental compensation where a proponent has discharged pollutants into water bodies or failed to prevent such discharge and also failed to implement the Waste Management Rules. Referring to the Supreme Court of India order dated 6 December 2018 in OA No. 125/2017 and MA No. 1337/2018, the report notes that because failure to prevent discharge into water bodies and failure to implement waste management rules are frequent and widespread, the CPCB must lay down specific guidelines throughout India, including a scale of compensation to be recovered from different individuals or authorities, in addition to or as an alternative to prosecution. The scale may have slabs depending on extent of pollution, economic viability, etc., and a deterrent effect for repeated wrongs may be provided., It is suggested that determination of environmental compensation in this category would have two components: (i) cost saved or benefits achieved by the concerned individual or authority by not having a proper waste or sewage management system; and (ii) cost to the environment (environmental externality) due to untreated or partially treated waste or sewage because of insufficient capacity. The cost saved component also includes interest on capital cost of the waste or sewage management facility and daily operation and maintenance cost. The report proposes the following formula: EC = Capital Cost Factor × Marginal Average Capital Cost for Establishment of Waste or Sewage Management or Treatment Facility (Capacity Gap) + O&M Cost Factor × Marginal Average O&M Cost (Capacity Gap) × Number of Days for which facility was not available + Environmental Externality., Environmental externality is placed in two categories: (i) untreated or partially treated sewage discharge and (ii) improper municipal solid waste management. Table 3.1 provides marginal cost of environmental externality per million litres per day (MLD) for sewage discharge, with values ranging from Rs 75 to Rs 90 and minimum and maximum externality values from Rs 0.05‑0.10 lakh per day for up to 200 MLD, up to Rs 0.60‑0.80 lakh per day for more than 501 MLD. Table 3.2 provides marginal cost per tonne per day for solid waste, with values ranging from Rs 15 to Rs 40 and corresponding externality ranges., CPCB further recommends a fixed cap for minimum and maximum cost for capital and O&M components for environmental compensation (Tables 3.3 and 3.4). For untreated or partially treated sewage discharge, the capital cost component ranges from Rs 2,000 to Rs 20,000 lakh for mega‑cities, Rs 1,000 to Rs 10,000 lakh for Class‑I cities/towns, and Rs 100 to Rs 1,000 lakh for other cities/towns. The O&M cost component ranges from Rs 2 to Rs 20 lakh per day for mega‑cities, Rs 1 to Rs 10 lakh per day for Class‑I cities/towns, and Rs 0.5 to Rs 5 lakh per day for others. Similar ranges are provided for improper municipal solid waste management., Paragraph 3.3 deals with the method of determining environmental compensation for damage from untreated or partially treated sewage by a concerned individual or authority. For populations above 100,000, water supply requirement is assumed to be 150‑200 litres per capita per day, with 85 % resulting in sewage generation. Capital cost for a 1 MLD sewage treatment plant ranges from Rs 0.63 crore to Rs 3 crore and O&M cost is around Rs 30,000 per month. The Committee assumes a capital cost of Rs 1.75 crore per MLD and a conveyance system cost of Rs 5.55 crore per MLD, with annual O&M cost equal to 10 % of combined capital cost. Two formulas are suggested for calculating environmental compensation, one based on capital and O&M cost factors and the other using fixed multipliers (17.5 and 55.5) applied to total sewage generation and operational capacity, plus environmental externality., Paragraph 3.4 deals with environmental compensation for improper solid waste management, chargeable to the urban local body. The formula is: EC = Capital Cost Factor × Marginal Average Cost for Waste Management (per day waste generated minus per day waste disposed as per the Rules) + O&M Cost Factor × Marginal Average O&M Cost (per day waste generated minus per day waste disposed) × Number of days of violation + Environmental Externality × Number of days. Simplified, EC (in lakh rupees) = 2.4 × (Waste Generation − Waste Disposed) + 0.02 × (Waste Generation − Waste Disposed) × N + Marginal Cost of Environmental Externality (Waste Generation − Waste Disposed)., The report states that municipal solid waste generation in India is approximately 150,000 tonnes per day, according to the Ministry of Housing and Urban Affairs (MoHUA) 2016 report. According to the Solid Waste Management Rules, 2016 and Plastic Waste Management Rules, 2016, total cost of municipal solid waste management in a city of 100,000 population generating about 50 tonnes per day is estimated at Rs 15.5 crore (including one‑time capital cost and one‑year operation and management cost). Subsequent years’ expenditure is about Rs 3.5 crore per annum. CPCB referred to a survey by the Environment Protection Training Research Institute (EPTRI) which estimated per‑capita waste generation as 0.1 kg for Class‑III cities, 0.3‑0.4 kg for Class‑II, and 0.5 kg for Class‑I. The Committee assumed 0.6 kg/day for mega‑cities, 0.5 kg/day for million‑plus urban areas and 0.4 kg/day for Class‑I towns for calculation purposes., Sample calculation of environmental compensation for improper municipal solid waste management is provided in Table 3.6 for Delhi, Agra, Gurugram and Ambala. The table shows population, waste generation, waste disposal as per rules (assumed 25 % of generation), capacity gap, and calculated environmental compensation components (capital cost, O&M cost and environmental externality). The final compensation amounts range from Rs 10,000 to Rs 60,000 per day for capital cost, with O&M components and externalities added as per the recommended minima and maxima., Chapter IV deals with determination of environmental compensation in case of illegal extraction of groundwater. The report refers to the National Green Tribunal order dated 3 January 2019 in Shailesh Singh vs. Central Ground Water Board & Others. The extract states that CPCB may constitute a mechanism to deal with individual cases of violation of norms prior to the notification of 12 December 2018, to determine environmental compensation to be recovered or other coercive measures, including prosecution, for past illegal extraction of groundwater., Broadly, determination of environmental compensation for illegal extraction of groundwater involves two aspects: illegal extraction and illegal use. For illegal extraction, the Committee suggests the formula: EC GW = Water Consumption per Day × Number of Days × Environmental Compensation Rate for illegal extraction of groundwater (ECR GW). Water consumption is in cubic metres per day and ECR GW is in rupees per cubic metre. Yield of the pump may be assumed as given in Annexure VI; the time duration is the period during which the pump is operated illegally., Depending on the category of the area—safe, semi‑critical, critical or over‑exploited—and the purpose of groundwater use, the compensation rate differs. For drinking and domestic use, the rates (Rs per m³) are: Safe – 4, 6, 8, 10 for consumption brackets <2, 2‑<5, 5‑<25, ≥25 m³/day; Semi‑critical – 12, 14, 16, 20; Critical – 22, 24, 26, 30; Over‑exploited – 32, 34, 36, 40. Minimum EC GW is Rs 10,000 for households and Rs 50,000 for institutional, commercial or township use. For packaged drinking water units, rates range from 12 to 120 Rs per m³ depending on area category and consumption brackets. For mining, infrastructure and dewatering projects, rates range from 15 to 150 Rs per m³. For industrial units, rates range from 20 to 200 Rs per m³. Minimum EC GW for these categories is Rs 1,00,000., It is also recommended that the minimum environmental compensation for illegal extraction of groundwater would be Rs 10,000 for domestic purposes and Rs 50,000 for other purposes.
id_481	15	These recommendations by the Central Pollution Control Board have not been given in the form of a binding statutory provision. Even otherwise, we find that these are only broad suggestions, ignore several relevant aspects which have to be considered while determining environmental compensation in a given case and, therefore, they cannot be taken as a readymade application to all situations for determining environmental compensation. Moreover, on some aspects there is no suggestion, but it is deferred. We also find that some crucial relevant aspects requiring application of the Polluter Pays principle have not been considered in the above suggestions. The Central Pollution Control Board has failed to consider that the purpose of determination, computation, and assessment of environmental compensation and levy thereof involves various factors such as (i) cost of damage to environment, (ii) cost needed for restoration or remediation of damage caused to environment, (iii) element of deterrent, (iv) liability arising for violation of statutory mandatory law relating to environment namely requirement of consent, environmental clearance and No Objection Certificate etc. It is not merely the cost of an item or subject but the computation of something which situation has arisen by an act of polluters due to violation of environmental law causing damage to environment. The loss and its remedy involve a complex of components., Nature is precious. The elements of nature such as air, water, light and soil in a materialistic manner may not be priced appropriately and adequately. Most of the time, whenever price is determined, it may be extremely low or highly exorbitant, thereby disproportionate. Still, since some of the assets of nature are marketable, price may be determined, but when such elements are damaged or degraded, restoration thereof is priceless. Many times it may be almost impracticable and improbable to recover and remediate damaged environment to its original position, and its cost might be very high. It cannot be doubted that once there is pollution or damage to environment, it adversely affects not only the environment but also inhabitants and all biological organisms. Damage is there; only the degree may differ whether to the environment or to the inhabitants and other organisms. To find out simultaneously the degree of damage and to ascertain the same in many cases may not be possible or practicable. For example, polluted air causes respiratory diseases; the people may not show symptoms immediately but the onset of injury varies with immunity and health conditions. In some cases, air pollution may be fatal to a person who already has a respiratory problem. For others it may be a minor inconvenience or minor injury, and some may not suffer any symptoms at all. When we talk of environmental compensation for causing degradation to environment and for its restoration or remediation, it is not a formal or casual or symbolic amount which is required to be levied upon the violator. It is a substantive and adequate amount which must be levied for restoration of environment. The Central Pollution Control Board, in determining values of fixed quotients and rupees etc., has been very lenient as if only symbolically the violator is to be held liable and must pay a petty amount., Statutory regulators must realize that the amount is needed for remediation and restoration of damaged environment; enough to be deterrent, to provide adequate compensation where inhabitants are affected adversely and where the violator has proceeded in violation of environmental laws relating to consents, clearances, permissions etc., to penalize him for such violation and to act as a deterrent to him and others. Unfortunately, the above guidelines laid down by the Central Pollution Control Board have not considered all these aspects and appear to have been prepared in a very casual and formal manner., In respect of computation of compensation for illegal extraction of ground water, the Central Pollution Control Board has referred to the National Green Tribunal order in State of Karnataka directing it to lay down guidelines to deal with the scale of compensation but has failed to consider that the Tribunal also observed that its scale may have slabs depending on extent of pollution caused, economic viability etc., and deterrent effect., Statutory regulators have also failed to consider that environmental compensation is not a kind of fee which may result in profiteering to violators, and after adjusting a nominal amount of environmental compensation, a violator may find it profitable to continue such violations. The objective of environmental compensation is that not only the loss and damage already caused is to be recovered and restored, but also that in future the violator may not repeat the kind of violation already committed and others also have a fear of not doing the same lest similar liability may be enforced upon them. Unless the amount of compensation is more than the maximum permissible profit arising from violation, the purpose of environmental compensation would always stand defeated., Loss caused to the surroundings of the environment may also include flora, fauna and human beings. In this backdrop, various matters considered by the Supreme Court of India and the National Green Tribunal have found it necessary to impose environmental compensation upon proponent or violator of environmental laws, and they have followed different mechanisms. Sometimes committee reports confirming violations have been referred, but for quantum of compensation, directions have been issued in different ways. In some cases, Central Pollution Control Board guidelines have been applied while in many others, project cost has been used as the basis., The Central Pollution Control Board guidelines have taken care of industries and municipal bodies. Their application in all cases irrespective of other relevant considerations may prove disastrous. Individuals, charitable, social or religious bodies, public sector and government establishments, etc., may, in given circumstances, justify a different approach. Further, there may be cases attracting aggravating or mitigating factors; for example, in a national emergency some activity was performed violating environmental norms or a proponent is resistant to any advice to adhere to law to protect environment. In fact, the quantum of environmental compensation should have a nexus with the State’s efforts for protection and preservation of environment and control of pollution. The compensation regime must be a deterrent to violators and incentivize eco‑friendly proponents. No one should profit by violating environmental laws and the community should also not suffer for violation of environmental norms by defaulting proponents. There is no reason, besides the aspects noticed above, for the computation process not to incorporate elements of inflation, quality of life, and economic prosperity., In the context of violation of disposal of Bio‑Medical Waste and non‑compliance of Bio‑Medical Waste Management Rules, 2016 and determination of environmental compensation for such violations, the National Green Tribunal in OA No. 710/2017, Shailesh Singh vs. Sheela Hospital & Trauma Centre, Shahjahanpur & Others, vide order dated 15 July 2019, accepted the report of the Central Pollution Control Board and said: (10) The compensation regime suggested by the Central Pollution Control Board may be adopted. It will be open to the State Pollution Control Boards/State Pollution Control Committees to adopt a higher scale of compensation, having regard to the problems faced in such States/UTs. (11) It is made clear that if even after two months the States/UTs are found to be non‑compliant, the compensation will be liable to be recovered from the said States/UTs at the rate of Rs. 1 crore per month till the non‑compliance continues., The above recommendations, i.e., in paragraph 10, state that the compensation regime suggested by the Central Pollution Control Board may be adopted and that State Pollution Control Boards/State Pollution Control Committees may adopt a higher scale of compensation having regard to the problems faced in such States/UTs. It further says that if State Governments and UTs still remain non‑compliant for two months, compensation will be recovered at the rate of Rs. 1 crore per month till non‑compliance continues., In respect of solid waste, sewage effluent, ground water extraction etc., the National Green Tribunal in OA No. 593/2017, Paryavaran Suraksha Samiti and another vs. Union of India and others, vide order dated 28 August 2019, said in paragraph 16 that as regards the environmental compensation regime fixed vide Central Pollution Control Board guidelines for industrial units, GRAP, solid waste, sewage and ground water is accepted as an interim measure. The Tribunal further observed that recovery of compensation on the Polluter Pays principle is a part of enforcement strategy but not a substitute for compliance. It directed all States/UTs to enforce the compensation regime latest w.e.f. 1 April 2020 and made it clear that it is not condoning any past violations. The Tribunal directed enforcement of recovery of compensation from 1 April 2020 from the defaulting local bodies, failing which the concerned States/UTs themselves must pay the requisite amount of compensation., In the matter of illegal mining causing damage to environment, the methodology for determining environmental compensation was examined in OA No. 360/2015, National Green Tribunal Bar Association vs. Virender Singh (State of Gujarat) and other connected matters decided on 26 February 2021. A report was submitted by the Central Pollution Control Board on 30 January 2020, placing on record recommendations made by a committee comprising: Dr. Purnamita Dasgupta, Professor, Institute of Energy and Environment, Delhi; Dr. K. S. Kavi Kumar, Professor, Madras School of Economics, Chennai; Dr. Yogesh Dubey, Associate Professor, Indian Institute of Forest Management, Bhopal; Shri Sundeep, Director, Ministry of Environment, Forest and Climate Change, Delhi; and Shri A. Sudhakar, Additional Director, Central Pollution Control Board, Delhi., The committee considered two approaches: (I) Direct compensation based on the market value of extraction, adjusted for ecological damages. (II) Computing a simplified net present value for ecological damages. In the first approach, the criteria adopted are Exceedance Factor (EF), Risk Factor (RF) and Deterrence Factor (DF). Approach I is demonstrated by Table 1 showing permitted quantity, total extraction, excess extraction and compensation charge, where D = Z × market value of the material per unit and DF = 0.3 if Z/X = 0.11 to 0.41, DF = 1 if Z/X = 0.41 to 0.70, and DF = 1.00 as per Table 2. Approach II is demonstrated by the formula: Total Benefits (B) = Market Value of illegal extraction × D (refer Table 1). Total Ecological Costs (C) = Market Value adjusted for risk factor: D × RF (refer Table 1). The final recommendation is that the annual net present value of the amount arrived at after taking the difference between the costs and the benefits, using the above approach, may be calculated for a period of five years at a discount rate of 5% for mining which is in a severe ecological damage risk zone. The rationale for levying this NPV is based on expert opinion that reversal and/or restoration of the ecological damages is usually not possible within a short period of time and rarely is it feasible to achieve 100% restoration, even if the sand deposition in the river basin is restored through flooding in subsequent years. The negative externalities of the mining activity are therefore to be accounted for in this manner. Ideally, the worth of all such damages, including costs of those which can be restored, should be charged. However, till data on site‑specific assessments becomes available, this approach may be adopted in the interim. In situations where the risk categorisation is unavailable or pending calculation, the following discount rates may be considered: Severity – Mild (Risk Factor 0.25, Discount Rate 8%); Moderate (Risk Factor 0.50, Discount Rate 7%); Significant (Risk Factor 0.75, Discount Rate 6%); Severe (Risk Factor 1.0, Discount Rate 5%). In both approaches, the element of illegality committed by the polluter in carrying on mining was not considered at all, for example, if environmental clearance and/or consent is not obtained. Similarly, cost of remediation/restoration was also not taken into consideration., Counsel for the applicant gave certain suggestions, which are mentioned in paragraph 13 of the order dated 12 October 2020. The Tribunal directed the committee to re‑examine the matter. A further report was submitted on 12 October 2020 reiterating the earlier report. The Tribunal, in paragraph 12 of the judgment dated 26 February 2021, proposed to accept approach II in the report. In paragraph 25, the Tribunal said: In the light of the discussion in paragraph 12 above, having regard to the totality of the situation, we accept the report of the Central Pollution Control Board and direct that the scale of compensation calculated with reference to approach II be adopted by all the States/UTs. Though compensation assessment for damage to the environment is a dynamic concept, depending on variables, a floor‑level formula can be worked out to avoid arbitrariness inherent in unguided discretion. The Central Pollution Control Board may issue an appropriate statutory direction for the facility of monitoring and compliance to the Environment Secretaries of all the States/UTs who may forthwith evolve an appropriate mechanism for assessment and recovery of compensation in all districts of the State. The recovered compensation may be kept in a separate account and utilized for restoration of environment by preparing an appropriate action plan under the directions of the Environment Secretary with the assistance of such individuals or institutions as may be considered necessary., Though the Tribunal said that determination of environmental compensation is a dynamic concept and depends on variables, and also directed the Central Pollution Control Board to issue statutory directions to all States/UTs so that they may evolve an appropriate mechanism for assessment, nothing has been done in this regard to date. Some States have found it convenient to follow the Central Pollution Control Board guidelines. The State of Tamil Nadu, vide order dated 3 January 2020, and the State of Haryana, vide order dated 29 April 2019, have adopted the Central Pollution Control Board guidelines., In some cases compensation has been awarded by the Tribunal on a lump‑sum basis without referring to any methodology. For example: (i) in Ajay Kumar Negi vs. Union of India, OA No. 183/2013, Rs 5 crore was imposed; (ii) in Naim Shariff vs. M/s Das Offshore Application No. 15(THC) of 2016, Rs 25 crore was imposed; (iii) Hazira Machchimar Samiti vs. Union of India, Rs 25 crore was imposed., In Goa Foundation vs. Union of India & Others (2014) 6 SCC 590, the Supreme Court of India relied on Samaj Parivartana Samudaya & Others vs. State of Karnataka & Others (2013) 8 SCC 209 and held that ten percent of the sale price of iron ore during e‑auction should be taken as compensation. The Court observed that this was an appropriate compensation given that mining could not be completely stopped due to its contribution towards employment and revenue generation for the State. The Court further directed the creation of a special purpose vehicle, i.e., Goan Iron Ore Permanent Fund, for depositing the directed compensation and for utilization of the fund for remediation of damage to environment., In Goel Ganga Developers vs. Union of India and Others (2018) 18 SCC 257, the Tribunal imposed Rs 195 crore compensation since the project was executed without environmental clearance. The Supreme Court reduced it to Rs 100 crore or 10 % of project cost, whichever is higher. The Supreme Court also upheld Rs 5 crore imposed by the Tribunal vide order dated 27 September 2016. Thus, the total amount exceeded even 10 % of project cost., In Mantri Techzone Private Limited vs. Forward Foundation & Others (2019) 18 SCC 494, the Supreme Court affirmed the imposition of environmental compensation by the Tribunal, considering the cost of the project, where there was violation regarding environmental clearance/consent and the proponent proceeded with construction activities violating provisions relating to environmental clearance/consent. The Tribunal determined environmental compensation at 5 % and 3 % of project cost for two builders. Five percent of project cost was imposed where the proponent had raised illegal constructions while three percent was imposed where actual construction activity was not undertaken and only preparatory steps were taken including excavation and deposition of huge earth by creating a hillock. Besides, the Tribunal also directed demolition and removal of debris from a natural drain at the cost of the proponent., The turnover or annual receipt of polluters has not been placed on record by the parties. However, annual reports of polluters are available in the public domain and from them we find that the annual turnover of M/s. Varun Beverages, as per the annual report of financial year 2020, is more than Rs 4,500 crore. If we compute even 1 %, the amount of compensation for one year would be about Rs 45 crore., Similarly, in respect of Moon Beverages Ltd., for the financial year 2019‑2020 (ending on 31 March 2020), revenue receipt is more than Rs 500 crore as per the final annual report available in the public domain. Computation on 1 % of total revenue receipt would be Rs 5 crore for one year., Thus, computation of compensation on the annual turnover or sales of the commodities manufactured by polluters using illegally extracted ground water would result in a very high amount of environmental compensation. Taking a pragmatic view which would aid preservation of environment and simultaneously maintain the principle of sustainable development, we find it appropriate to adopt a slightly different method by taking into consideration the methodology formulated by the Central Ground Water Authority for computation of compensation and adding therein the elements of factors not taken into account in the above methodology by the Central Ground Water Authority., PP‑1 was supposed to implement ground water recharge measures to the tune of 2,04,042 m³ per year. The site of its unit in 2015 was in the safe category but subsequently came in the semi‑critical category. In the semi‑critical category, as per the Guidelines 2020, recharge must be 100 % of the extraction. Rates for recharge are not given in Guidelines 2020, hence we apply extraction charges given in the Central Pollution Control Board report. The extraction allowed was 1,693 m³ per day. Extraction charges, as per Guidelines 2020, are Rs 5 per m³ per day in a semi‑critical area which will make it about Rs 8,465 per day (1,693 × 5). It will come to Rs 30,89,725 per annum. A similar amount will arise for extraction of ground water after expiry of the No Objection Certificate. PP‑1, therefore, shall pay environmental compensation of Rs 1,85,38,350 (computation for six years) within one month., PP‑2 and PP‑3 were in over‑exploited areas. The restoration charge for the kind of industries of PP‑2 and PP‑3, as per Guidelines 2020, is Rs 80 per m³ per day in an over‑exploited area which will come to around Rs 3,31,20,000 per annum and Rs 2,42,83,360 per annum respectively. Charge for extraction of ground water after expiry of the No Objection Certificate, as per Guidelines 2020, is Rs 40 per m³ per day. It will come to Rs 1,65,60,000 and Rs 1,21,41,680 per annum for PP‑2 and PP‑3 respectively. For the element of restitution, we make the above amount twice. Therefore, PP‑2 and PP‑3 shall pay environmental compensation of Rs 13,24,80,000 (computed for four years, from 2016 to 2020) and Rs 9,71,33,440 (computed for about four years, i.e., the period of 1 February 2018 to 31 January 2022) respectively, within 60 days, with the Central Pollution Control Board., The Central Ground Water Authority, having caused damage to environment and being responsible for allowing illegal extraction of ground water and failing to ensure recharge by the concerned polluters, may be held accountable., The Uttar Pradesh Ground Water Department has attempted to confer a valid authority upon polluters to justify continued extraction of ground water though it had neither such jurisdiction nor undertaken any inquiry or investigation as to whether the polluter complied with earlier conditions of the No Objection Certificate. Therefore, it has also contributed and is responsible for causing damage to environment by causing illegal abstraction of ground water and may be held accountable., In view of the above, we issue the following directions: (a) PP‑1, i.e., M/s. Moon Beverages Ltd., unit at 2B/1, Ecotech‑III, Udhyog Kendra, Greater Noida, District Gautam Buddha Nagar, Uttar Pradesh, shall pay Rs 1,85,38,350 as environmental compensation within one month. (b) PP‑2, i.e., M/s. Moon Beverage Ltd., unit at A‑32, Site IV Sahibabad Industrial Area, Sahibabad district, Ghaziabad, Uttar Pradesh, shall pay Rs 13,24,80,000 as environmental compensation within two months. (c) PP‑3, i.e., M/s. Varun Beverages Ltd., unit at Plot No. 2E, Udyog Kendra, Ecotech‑III, Greater Noida, Uttar Pradesh, shall pay Rs 9,71,33,440 as environmental compensation within two months. (d) The aforesaid environmental compensation received from polluters shall be utilized for recharge of ground water, restoration of environmental damage, etc. For this purpose, we constitute a joint committee of the District Magistrates of the concerned districts, the Central Pollution Control Board and the Central Ground Water Authority as nodal authorities. The committee shall prepare a restoration plan within two months, execute the same in the next six months and submit a compliance report to the Registrar General, National Green Tribunal, Principal Bench, New Delhi. (e) We also constitute a joint committee of the Central Pollution Control Board, Central Ground Water Authority, Uttar Pradesh Ground Water Department and Uttar Pradesh Pollution Control Board to conduct a survey in the State of Uttar Pradesh, prepare data of various categories drawing ground water for commercial purposes, study impact assessment, suggest ways and modes to reduce ground water extraction in over‑exploited areas, and propose how ground water level can be improved. The committee may induct any other expert as it may find necessary. The District Magistrate of the concerned district where the committee would visit shall also be a member of the committee. The Uttar Pradesh Pollution Control Board shall be the nodal authority. (f) The Central Ground Water Authority is directed to forthwith issue appropriate orders or directions regulating ground water extraction in the light of the observations made above and the orders passed by the Supreme Court of India in M. C. Mehta vs. Union of India & Others (1997) and this Tribunal in various cases referred to in this judgment, and must take all precautions and care to ensure that in over‑exploited areas ground water should not be allowed to be extracted in such a manner that the general public would have to face problems of water for drinking and domestic purposes. (g) The statutory regulators shall also take other remedial and punitive measures as provided in law, including prosecution. (h) Compliance reports by the respective bodies/authorities and committees shall be submitted after the expiry of the period given by email at judicial‑ngt@gov.in preferably in the form of searchable PDF/OCR supported PDF and not in the form of image PDF, and where no period is given, after six months to the Registrar General, National Green Tribunal., With the above directions, and in the manner aforesaid, OA No. 69/2020 and Appeal No. 45/2020 are allowed. A copy of the order shall be forwarded to the Chief Secretary, Uttar Pradesh, by email for compliance.
id_482	0	Quoad hume et quoad hume, these people cannot consummate the marriage quoted by the House of Lords (and Privy Council) in the case of G. vs G., [LR 1924 AC 349], holding that two people should not be tied up together for the rest of their life in a state of misery., The present appeal is preferred by the husband assailing the judgment and decree dated 17.07.2015, passed in M.C. No. 175/2014, on the file of Principal Judge, Family Court of Dharwad, whereby the petition filed by the husband under Section 13(1)(ia) of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act for short) seeking decree of divorce on the ground of cruelty came to be dismissed., The husband filed the petition under Section 13(1)(ia) of the Act, seeking decree of divorce on the ground of cruelty. The marriage solemnised on 13/05/2013 is not disputed by the parties. It is averred by the husband that the wife was co‑operative for one month, however, her behaviour altogether changed later on. It is averred that she refused to do household work, also started making allegations against her husband that he is incompetent to discharge his matrimonial obligations, he is an unfit person to be a husband, the allegation of impotency was disclosed not only before him, but also before relatives of both parties, which caused a lot of embarrassment to the husband resulting in mental torture, which was intolerable to lead the life with his wife and thus, sought a decree of divorce., On the other hand, the wife in her objections denied the averments made in the petition and averred that she had come to the matrimonial home to lead a happy married life, however, her dream to lead a happy married life went in vain due to the nature and distance maintained by the husband. It is averred by the wife that the husband is not interested in the marital life and he would always stay away for one or the other reason due to which it created a doubt in her mind regarding his competency to lead marital life and that he might be an impotent person incompetent to lead marital life. It is further averred that she was always ready to discharge her matrimonial obligations and the husband, in order to cover his own defects, has filed the petition for divorce., The Family Court of Dharwad framed the following points on the basis of the pleadings of the parties: Whether the petitioner husband proves that the respondent wife subjected him to cruelty after solemnisation of marriage? Whether the petitioner husband is entitled to the decree of divorce as sought for? What order?, The husband examined himself as PW.1 and got marked two documents at Exs. P1 and P2. On the other hand, the wife examined herself as RW.1 and got marked documents at Exs. R1 and R2., The Family Court of Dharwad, by its judgment and order dated 17.07.2015, dismissed the petition filed by the husband under Section 13(1)(ia) of the Act and directed the husband to pay Rs. 8,000 per month to the wife from the date of the judgment till he rejoins her company for leading future marital life., Being aggrieved by the dismissal of the petition filed by the husband seeking divorce, the present appeal is preferred by the husband., Heard Sri Srinand A. Pachchapure, learned counsel appearing for the appellant husband and Sri S.R. Hegde, learned counsel for the respondent wife., It is the foremost contention of learned counsel for the appellant husband that, other than the wife disrespecting the husband as well as her in‑laws and refusing to do the household work, she had started making serious allegations that the husband is incapable of discharging his matrimonial obligations. The said allegation was not only made before the husband, but also before her and his relatives. This act of the wife has subjected the husband to mental and physical cruelty. It is further contended that the allegations so made, having not proved to be true, the Trial Court was not justified in dismissing the petition filed by the husband., In order to substantiate his contention, learned counsel for the appellant has relied upon the following judgments: (a) In FCA 49/2005 in the case of K. Srinivasa Sharma vs T. Vijaya Lakshmi by the High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh. (b) In S.B. Civil Misc. Appeal No. 2015/2007 of Mamta Goyal vs Ramgopal by the High Court of Judicature for Rajasthan at Jaipur Bench, Jaipur. (c) In CMA No. 3155/2002 of Susarla Subrahmanya Sastry vs Shrimati S. Padmakshi, by the High Court of Andhra Pradesh at Hyderabad., Per contra, learned counsel for the respondent wife contended that the marriage between the husband and wife was never consummated, without there being any fault on the part of the wife and that the act of the husband created a doubt in her mind regarding incompetency to perform his matrimonial obligations. It is further urged that she is always ready and willing to join the husband in spite of the incapability of the husband to perform his marital obligations and thus, sought to dismiss the appeal and confirm the judgment and decree of the trial Court. In support of her contention, the learned counsel for the respondent wife has relied upon the following judgments: i) AIR 2012 Calcutta 220 in the case of Shyamal Samaddar vs Shrimati Sampa Samaddar (Nee Guha Thakurta). ii) MFA No. 3352/2016 in the case of Shrimati S. Shyamala alias Kathyayani, daughter of S.N. Somasundara vs Sri B.N. Mallikarjunaiah, unreported judgment of a Co‑ordinate Bench dated 13., Having heard the learned counsel for the parties, the points that arise for consideration are as follows: Whether the allegation made by the wife that the husband is impotent and not competent to perform matrimonial obligations has resulted in mental cruelty as envisaged under Section 13(1)(ia) of the Hindu Marriage Act, 1955? Whether the proceedings before the mediator could be relied upon by the courts in arriving at a conclusion in granting or rejecting the prayer for divorce?, In light of the submissions made by learned counsel for the parties, the pleadings and evidence in respect of the allegations made against each other need to be considered., The specific ground for filing of the petition by the husband is that the wife has made an allegation that the husband is impotent which amounts to mental agony and cruelty to the husband., The husband in his petition has stated that the wife has subjected him to cruelty by making allegations that he is an impotent. In this regard, paragraph No.5 of the petition is extracted, which reads as under: 5. It is further submitted that, on the part of the respondent she used to say to the petitioner that he has no capacity to discharge matrimonial obligations towards her and she is not satisfied about the matrimonial affairs by the petitioner and openly said to the petitioner that he is not a competent person; on this pretext the respondent flatly refused to join the company of the petitioner in leading the matrimonial affairs., The husband, in order to substantiate his contention, has examined himself as PW1 and reiterated the petition averments. PW.1 in his chief examination at paragraph Nos.3, 4 and 12 has stated as under: 3. I state that the respondent on her return to Dharwad started to behave in a different manner and also the respondent started to disrespect my parents and me, and also refused to do the household work and further started to enquire about the movable and immovable properties owned by my family. When I advised her that this is not the time for you and after some time I undertook to furnish all the details in regard to the family properties. 4. I state that however, the respondent insisted that I furnish them only. When I refused to furnish the details, annoyed by the same the respondent started to non‑cooperate in matrimonial affairs and the said attitude of the respondent has continued. 12. I state that the cause of action accrued to me on 18/09/2014 when the respondent openly said that I am incompetent to discharge the matrimonial obligations. Hence she is not interested to lead marital life and she is ready and willing to give divorce to me and the same continues., On the other hand, the wife, in her objections at paragraph No.12, has stated as under: 12. It is submitted that after some time the parents of the petitioner went to Chandigarh where their son is residing. Even then the petitioner did not allow the respondent to carry out the marital activities; they started to sleep separately. The respondent asked the petitioner to start the marital life but the petitioner has not agreed to the same. On the contrary he tried to convince the respondent that he is not interested in marital life and we have to live the life as Ramakrishnaparam Hamsa and Sharada Devi. Even then the respondent controlled herself and was ready to live with the petitioner as per his will and wish. Without saying anything to her parents, with an utmost hope that one day it will be solved, after receiving the divorce notice from the petitioner, she suffered a lot of mental agony. The act of the petitioner creates a doubt in the mind of the respondent and her parents that he might be impotent and not a competent person to lead the marital life. The respondent is an innocent lady who never refused to lead the marital life with the petitioner; though he is not ready to start the marital life with the respondent, even then she is ready to sacrifice her life and ready to live with the petitioner., The wife has examined herself as RW.1 reiterating the contention that the behaviour of the husband’s staying away from marital obligation has resulted in the wife believing that the husband is impotent and therefore incompetent to perform his matrimonial obligation. The relevant portion of the cross‑examination of RW1 is as follows: The act of the petitioner creates a doubt in the mind of the respondent and her parents that he might be impotent and not a competent person to lead a marital life. Placing reliance on the written statement and evidence of RW.1 stated supra, learned counsel for the appellant husband would contend that the act of the wife by making false allegations about impotency has caused mental cruelty to the husband., In regard to mental cruelty, the Supreme Court of India has held in a catena of judgments that cruelty includes both physical and mental cruelty as enumerated under Section 13(1)(ia) of the Act and the cruelty needs to be assessed in the facts and circumstances of the case. The relevant decisions in this regard are as follows: (a) The Supreme Court of India, in the case of Parveen Mehta vs Inderjit Mehta [(2002) 5 SCC 706] at paragraph Nos.15, 19 and 21 held as under: 15. This Court in the case of N.G. Dastane vs Dr. Dastane examined the matrimonial ground of cruelty as it was stated in the old Section 10(1)(b) and observed that any inquiry covered by that provision had to be whether the conduct charged as cruelty is of such a character as to cause in the mind of the petitioner a reasonable apprehension that it will be harmful or injurious to live with the respondent. It was further observed that it was not necessary, as under English law, that the cruelty must be of such a character as to cause danger to life, limb or health, or as to give rise to a reasonable apprehension of such danger though, of course, harm or injury to health, reputation, the working character or the like would be an important consideration in determining whether the conduct of the respondent amounts to cruelty or not. In essence, what must be taken as a fairly settled position is that though the clause does not in terms say so, it is abundantly clear that the application of the rule must depend on the circumstances of each case; that cruelty contemplated is conduct of such type that the petitioner cannot reasonably be expected to live with the respondent. The treatment accorded to the petitioner must be such as to cause an apprehension in the mind of the petitioner that cohabitation will be so harmful or injurious that she or he cannot reasonably be expected to live with the respondent having regard to the circumstances of each case, keeping always in view the character and condition of the parties, their status, environments and social values, as also the customs and traditions governing them. 19. Clause (i‑a) of sub‑Section (1) of Section 13 of the Act is comprehensive enough to include cases of physical as well as mental cruelty. It was formerly thought that actual physical harm or reasonable apprehension of it was the prime ingredient of this matrimonial offence. That doctrine is now repudiated and the modern view has been that mental cruelty can cause even more grievous injury and create in the mind of the injured spouse reasonable apprehension that it will be harmful or unsafe to live with the other party. The principle that cruelty may be inferred from the whole facts and matrimonial relations of the parties and interaction in their daily life disclosed by the evidence is of greater cogency in cases falling under the head of mental cruelty. Thus mental cruelty has to be established from the facts (Mulla’s Hindu Law, 17th Edn., Vol. II, p. 91). 21. Cruelty for the purpose of Section 13(1)(ia) is to be taken as a behaviour by one spouse towards the other which causes reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the matrimonial relationship with the other. Mental cruelty is a state of mind and feeling with one of the spouses due to the behaviour or behavioural pattern by the other. Unlike the case of physical cruelty, mental cruelty is difficult to establish by direct evidence. It is necessarily a matter of inference to be drawn from the facts and circumstances of the case. A feeling of anguish, disappointment and frustration in one spouse caused by the conduct of the other can only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial life have been living. The inference has to be drawn from the attending facts and circumstances taken cumulatively. In case of mental cruelty it will not be a correct approach to take an instance of misbehaviour in isolation and then pose the question whether such behaviour is sufficient by itself to cause mental cruelty. The approach should be to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the petitioner in the divorce petition has been subjected to mental cruelty due to conduct of the other. (b) In another judgment of the Supreme Court of India in the case of Vinita Saxena vs Pankaj Pandit [(2006) 3 SCC 778] in paragraphs 31 to 36, it is held as under: 31. It is settled by a catena of decisions that mental cruelty can cause even more serious injury than physical harm and create in the mind of the injured appellant such apprehension as is contemplated in the Section. It is to be determined on the whole facts of the case and the matrimonial relations between the spouses. To amount to cruelty, there must be such wilful treatment of the party which caused suffering in body or mind either as an actual fact or by way of apprehension in such a manner as to render the continued living together of spouses harmful or injurious having regard to the circumstances of the case. 32. The word cruelty has not been defined and it has been used in relation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations. It is a course of conduct and one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. There may be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted. 33. The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions, their culture and human values to which they attach importance. Judged by the standard of modern civilisation in the background of the cultural heritage and traditions of our society, a young and well‑educated woman like the appellant herein is not expected to endure the harassment in domestic life whether mental, physical, intentional or unintentional. Her sentiments have to be respected, her ambition and aspiration taken into account in making adjustment and her basic needs provided, though grievances arising from temperamental disharmony are irrelevant. This view was taken by the Kerala High Court in Rajani vs Subramanian. 34. In 1993 (2) Hindu L.R. 637, the Court observed as follows: “Sometimes even a gesture, the angry look, a sugar‑coated joke, an ironic overlook may be more cruel than actual beating.” 35. Each case depends on its own facts and must be judged on those facts. The concept of cruelty has varied from time to time, from place to place and from individual to individual in its application according to social status of the persons involved and their economic conditions and other matters. The question whether the act complained of was a cruel act is to be determined from the whole facts and the matrimonial relations between the parties. In this connection, the culture, temperament and status in life and many other things are the factors which have to be considered. 36. The legal concept of cruelty which is not defined by statute is generally described as conduct of such character as to have caused danger to life, limb or health (bodily and mental) or to give rise to reasonable apprehension of such danger. The general rule in all questions of cruelty is that the whole matrimonial relations must be considered; that rule is of special value when the cruelty consists not of violent act but of injurious reproaches, complaints, accusations or taunts. It may be mental such as indifference and frigidity towards wife, denial of company to her, hatred and abhorrence for wife, or physical, like acts of violence and abstinence from sexual intercourse without reasonable cause. It must be proved that one partner in the marriage, however mindless of the consequences, has behaved in a way which the other spouse could not in the circumstances be called upon to endure, and that misconduct has caused injury to health or a reasonable apprehension of such injury. There are two sides to be considered in case of cruelty. From the appellant’s side, ought this appellant be called on to endure the conduct? From the respondent’s side, was this conduct excusable? Supreme Court of India has then to decide whether the sum total of the reprehensible conduct was cruel. That depends on whether the cumulative conduct was sufficiently serious to say that from a reasonable person’s point of view after a consideration of any excuse which the respondent might have in the circumstances, the conduct is such that the petitioner ought not be called upon to endure., The objections of the wife at paragraph No.12 indicate that it is her allegation that the husband is impotent; further the cross‑examination of RW1 reveals that instructions were given by her to her counsel to file the objections. Careful perusal of the objection reveals that the wife apprehended that the husband is incompetent to perform the matrimonial obligations and that he is impotent. This allegation has been made in her objections as well as in her evidence and also by way of cross‑examining PW.1. No material is forthcoming to discharge the burden of proof that her allegation is justifiable, and no efforts have been made to prove that the contention raised by her about the impotency of the husband is true and is not merely an allegation but a fact. This having not been done, the allegation of impotency in the presence of others and her husband would necessarily affect the reputation of the husband. No prudent woman would think of making an allegation of impotency in the presence of others; rather she would take necessary steps to see that the reputation of the husband is not affected and not thrown out in public. The complaint of incapacity of the husband to bear children, without any proof, creates an intense mental agony and anguish of the husband which the High Court of Andhra Pradesh has concurrently held in the case of Shrimati G. Padmini vs G. Sivananda Babu reported in [AIR 2000 A.P. 176] that: When the wife made a complaint about her husband’s impotency and soon after she conceived, the husband immediately filed a petition for divorce on the ground of making false allegation, on the ground of cruelty as she made false allegation which caused mental pain and anguish; such conduct amounts to mental cruelty., In the present case, the allegations made by the wife to the extent that the husband is not discharging his matrimonial vows and that creates a doubt in the mind of the wife that he is impotent, which has affected the reputation of the husband. The wife has failed to discharge the burden to prove that the husband is impotent as the husband is willing to undergo medical examination as stated in his affidavit. Having not proved the allegation, the unproved/unsubstantiated false allegations about impotency have led to mental disturbance of the husband causing disharmony between the husband and wife, which makes the husband unable to stay with the wife., Though Section 13 of the Act does not consider impotency as the ground for divorce, the false allegation of impotency being made by the wife would definitely cause mental disharmony and this would amount to mental cruelty within the meaning of Section 13(1)(ia) of the Act, and enables the husband to seek divorce on the ground of cruelty.
id_482	1	As no evidence having been specifically adduced by the wife to prove that the husband is actually impotent, the allegation would remain only an allegation and has the effect of lowering the dignity of the husband, which amounts to cruelty as the Supreme Court of India has held in the case of Shrimati Pramila Bhatia vs. Vijay Kumar Bhati [AIR 2000 Raj. 362] (para 26). There is another act of cruelty which is manifested by her reply as well as her statement and the statement of her father. She has alleged that she was asked to bring dowry and that on two occasions, she brought the amount of Rs. 10,000 on each occasion and that on the third occasion, she was asked to bring a sum of Rs. 50,000 and when she refused to fulfil this demand, she was harassed and given a beating. These allegations have not been proved by reliable evidence. The allegations of this nature are easy to be made but unless they are proved, as required by Section 3 of the Evidence Act, the allegations must be treated as not proved. Making false allegations is no doubt an act of cruelty if the object behind the making of false allegations is to lower the dignity or self‑esteem or destroy the reputation or to bring some harm to the person against whom the allegations are made. Therefore, any one who makes allegations which are detrimental to the dignity, self‑esteem, reputation or well‑being of the persons against whom they are made, must be careful in making such allegations. In other words, such allegations may not be made unless there is sufficient evidence to prove them. Anyone who makes allegations of serious nature against anyone without sufficient evidence to prove them must bear responsibility for making such allegations. If the allegations are made falsely or without sufficient evidence to prove them, the act of making allegations against either party may amount to cruelty., Under similar circumstances, the High Court of Judicature at Hyderabad for the State of Telangana and State of Andhra Pradesh in the case of Srinivasa Sharma vs. T. Vijaya Lakshmi (stated supra) held as follows: Keeping in mind relevant considerations to decide cruelty and those two instances, applying to the facts of the present case, certainly serious or wild allegations made against the petitioner by the respondent that the petitioner is impotent amount to cruelty; such baseless allegations would certainly denounce his prestige among his friends and the public and when the respondent telephoned to PW.5 and informed that the petitioner is impotent and incapable of performing sexual intercourse, it would cause mental pain. For deciding the questions, it is necessary to know the meaning of impotency. The word impotency is absolute. Previously it was used as a blanket term to denote that the male is not sexually fit. Now the scientifically accepted term is erectile dysfunction which means inability to get an erection or inability to perform sexual intercourse. Since impotency is a physical or mental condition it can be proved by a medical expert but no such evidence is brought on record, thereby failing to prove impotency of the petitioner., In similar circumstances, the Division Bench of this Court in Susarla Subrahmanya Sastry vs. Padmakshi (2005(4) ALT 677) ruled as follows: On account of non‑cooperation and hostile attitude of the wife‑respondent, the husband‑petitioner was subjected to serious frustrative experience and it can safely be termed as cruelty within Section 13(1)(ia) of the Hindu Marriage Act. There is no dispute that the respondent and her parents say that the petitioner cannot perform sexual intercourse. In our view, failure to prove erectile dysfunction amounts to cruelty. In another judgment reported in G. Padmini vs. G. Shivananda Babu (AIR 2000 AP 176) the Division Bench held that when the wife made a complaint about her husband’s impotency and soon after she conceived, the husband filed a petition for divorce on the ground of false allegation and cruelty as the false allegation caused mental pain and anguish; such conduct amounts to mental cruelty., In view of the principles laid down by this Court, making a baseless allegation of impotency against a husband or wife causes mental pain and denounces prestige in office as well as among friends. It stigmatizes the ability of the petitioner among relatives, friends and the public by pointing out his inability to perform sexual intercourse. Therefore, such acts certainly cause mental pain, which disables the petitioner from concentrating on his duties in employment and makes it unsafe for him to live with the respondent. Such acts amount to cruelty. In the present case the respondent‑wife made a serious allegation of impotency against the petitioner‑husband that would certainly cause mental pain to him if the allegation is not true. The respondent did not prove that the petitioner is impotent. Even the telephone to PW.5 complaining that the petitioner is unable to perform sexual intercourse amounts to publicising that the petitioner is incapable of performing sexual intercourse and such act amounts to legal or mental cruelty, which affords a ground to grant a decree of divorce under Section 13(1)(ia) of the Hindu Marriage Act. The Family Court did not consider the conditions in which the petitioner and the respondent are living, their social background, traditions they believe, their educational qualification and sense of reaction of each other to such wild allegations but concluded that the disputes between the petitioner and respondent are only in the nature of family feud, on account of mother and sister of the petitioner, stay with them. This reasoning is not based on any material and not supported by any law. The Family Court totally ignored a specific allegation made in notice Ex.B.1, which is the basis for the entire case and the evidence adduced in support of such allegation, and dismissed the petition erroneously. Hence, the finding of the Family Court is to be set aside holding that the making of a wild allegation against the petitioner‑husband that he is incapable of performing sexual intercourse or impotent is a ground to grant a decree of divorce under Section 13(1)(ia) of the Hindu Marriage Act. We hold this point in favour of the petitioner and against the respondent., In view of the foregoing discussion, we find that the respondent subjected the petitioner to mental cruelty and thereby the petitioner is entitled to a decree of divorce under Section 13(1)(ia) of the Hindu Marriage Act. The petitioner is entitled to a decree of divorce dissolving the marriage between the petitioner and the respondent. In the result, the appeal is allowed, setting aside the dismissal order dated 23.09.2004 in O.P. No.4 of 2004 passed by the Judge, Family Court, Kurnool and allowing the petition granting a decree of divorce dissolving the marriage between petitioner and respondent. Each party has to bear its own costs., The contention of the respondent‑wife that she has never refused to live with the husband and her in‑laws and never refused to perform her matrimonial obligations and that the marriage was not consummated because of the behaviour of the husband by staying away from the wife and refusing to perform the marital obligations is not justified in view of the fact that the wife has not placed any material to shore up her contentions. The judgments relied upon by the respondent‑wife in Shyamala Samadar’s case (stated supra) are in a different context as the allegations made by the wife were not severe in nature as is in the present case. The other judgment of the Coordinated Bench relied upon by the respondent‑wife in MFA No.3352/2016 was a petition filed under Section 13(1)(ia) and (ib) of the Hindu Marriage Act and is not applicable to the present facts and circumstances of the case. Thus, the judgments relied upon by the respondent‑wife are not in consonance with the present facts. It is relevant to note that the facts of each case are different and there is no straight‑jacket formula while considering the term cruelty; it depends upon the pleadings and evidence on record and the inference has to be drawn from the attending facts and circumstances taken cumulatively. Accordingly, we answer point No.1 in the affirmative and in favour of the husband., The perusal of the judgment of the Family Court would reveal that the Family Court while dismissing the petition filed by the husband seeking divorce, took note of the conciliation proceedings between the husband and the wife before the mediator and considered the willingness expressed by the wife stating that despite the faults and shortcomings, the wife is ready to join the husband and that the husband has stated that he is not willing to join his wife and wants a decree of divorce. This is one of the grounds taken into consideration by the Family Court while deciding the matter on merits. As per the Karnataka Civil Procedure (Mediation) Rules 2005, which came into force on 29.12.2006, Rule 23 reads: (1) In order to preserve the confidence of parties in the court and the neutrality of the mediator, there should be no communication between the mediator and the court except as stated in sub‑rules (2) and (3) of this rule. (2) If any communication between the mediator and the court is necessary, it shall be in writing and copies of the same shall be given to the parties or their counsel or power of attorney. (3) Communication between the mediator and the court shall be limited to: (i) communication by the mediator with the court about the failure of a party to attend; (ii) communication with the court with the consent of the parties; (iii) regarding his assessment that the case is not suited for settlement through mediation; (iv) that the parties have settled the dispute or disputes., Rule 23 of the Mediation Rules states that communication between the parties and the mediator is confidential and prescribes the procedure as to what is to be communicated between the mediator and the court. The Supreme Court of India in the case of Moti Ram (Dead) through LRs and Another vs. Ashok Kumar and Another [(2011) 1 SCC 466] held that mediation proceedings are unlike court proceedings which are conducted openly in the public gaze. If mediation succeeds, the mediator should send the agreement signed by both parties to the court without mentioning what transpired during the mediation. If mediation is unsuccessful, the mediator should only write one sentence in his report stating that the mediation has been unsuccessful. Beyond that, the mediator should not write anything which was discussed, proposed or done during the mediation, because disclosure would destroy the confidentiality of the mediation process., On this count too, the judgment of the Family Court calls for interference. Accordingly we answer point No.2 in the negative and the Family Court was not justified in considering the mediation proceedings that transpired between the mediator and the parties, as they are confidential and cannot be revealed to the court until the party has advised to do so., For the reasons stated above and in view of the allegations having not been proved to be genuine, calling the husband impotent without legally substantiating the same itself amounts to cruelty within the meaning of Section 13(1)(ia) of the Hindu Marriage Act and the Family Court was not justified in holding that the cruelty asserted by the husband is not proved. Thus, we are of the considered opinion that the judgment and decree of the Family Court needs to be set aside and the petition filed by the husband under Section 13(1)(ia) of the Hindu Marriage Act needs to be allowed granting a decree of divorce in favour of the husband., However, looking into the dispute between the parties and they being separated since 2013, the wife needs to be maintained by the husband. The Family Court awarded a sum of Rs. 8,000 per month from the date of order till he rejoins the wife. In light of the facts and circumstances of the case and considering the gross salary of the husband that he is earning Rs. 38,000 per month, the award of maintenance at Rs. 8,000 per month to be paid on a monthly basis as and when it accrues till she remarries is in the nature of permanent alimony to the wife in view of the granting of a decree of divorce, till she gets remarried. In the result, we pass the following: (i) The appeal is allowed in part. (ii) The judgment and decree insofar as dismissing the petition of the husband under Section 13(1)(ia) is set aside and the marriage between the parties solemnised on 13/05/2013 is dissolved. (iii) The order granting Rs. 8,000 per month stands affirmed. The husband will continue to pay the amount to the respondent‑wife till she remarries.
id_484	0	Gaurav Kumar Bansal Writ Petitioner Versus Union of India and others Applicants/Respondents Order on compliance of the judgment and order dated 30.06.2021 Passed in Writ Petition (Civil) No. 539 of 2021., Pursuant to a detailed judgment and order dated 30.06.2021, Supreme Court of India directed the National Disaster Management Authority (NDMA) and the appropriate authority in paragraph 16 as follows: The Court disposed of the present writ petitions with the following directions. The NDMA is directed to recommend guidelines for ex‑gratia assistance on account of loss of life to the family members of persons who died due to Covid‑19, as mandated under Section 12(iii) of the Disaster Management Act, 2005 for the minimum standards of relief to be provided to persons affected by the Covid‑19 pandemic, over and above the guidelines already recommended for the minimum standards of relief to be provided to persons affected by Covid‑19. The reasonable amount of ex‑gratia assistance is left to the wisdom of the NDMA, which may consider the availability of funds under the National Disaster Response Fund/State Disaster Response Fund for other reliefs, the priorities determined by the NDMA/Union Government, and the fund required for prevention, preparedness, mitigation, recovery and other obligations under the Disaster Management Act, 2005. The guidelines are to be recommended within six weeks from the date of this order. The appropriate authority is directed to issue simplified guidelines for issuance of death certificates or official documents stating the exact cause of death, i.e., death due to Covid‑19, to the family members of the deceased. While issuing such guidelines, the observations made in paragraph 13 shall be borne in mind. The guidelines may also provide a remedy for correction of the death certificate or official document if the family is not satisfied with the cause of death mentioned. The Union of India is directed to take appropriate steps on the recommendations made by the Finance Commission in the XVth Finance Commission Report, paragraph 8.131, in consultation with other stakeholders and experts., Under the above directions in paragraph 16(1), the NDMA was required to recommend guidelines for ex‑gratia assistance on account of loss of life to the family members of persons who died due to Covid‑19, as mandatory under Section 12(iii) of the Disaster Management Act, 2005, for the minimum standards of relief to be provided to persons affected by the Covid‑19 pandemic, over and above the guidelines already recommended for the minimum standards of relief to be provided to persons affected by Covid‑19, within six weeks from 30.06.2021. Supreme Court of India specifically observed that the reasonable amount of ex‑gratia assistance is left to the wisdom of the NDMA, which may consider the availability of funds under the National Disaster Response Fund/State Disaster Response Fund for other reliefs, the priorities determined by the NDMA/Union Government, and the fund required for prevention, preparedness, mitigation, recovery and other obligations under the Disaster Management Act, 2005., By order dated 16.08.2021, Supreme Court of India extended the time for framing the guidelines as per the directions contained in paragraph 16(1) of the judgment dated 30.06.2021 by a further period of four weeks., An affidavit filed on behalf of the Union of India states that the NDMA has prepared guidelines for ex‑gratia assistance to the next of kin of the deceased due to Covid‑19 under Section 12(iii) of the Disaster Management Act, 2005, vide guidelines dated 11.09.2021. The NDMA recommended an amount of Rs.50,000 as ex‑gratia payment to the next of kin of the deceased due to Covid‑19. The ex‑gratia assistance shall be provided by the States from the State Disaster Response Fund (SDRF) and shall be disbursed by the District Disaster Management Authority/District Administration as per clause 8 of the guidelines., In view of the points mentioned in paragraph 2, the Authority recommends an ex‑gratia payment to the next of kin of the deceased due to Covid‑19, subject to cause of death being certified as Covid‑19 as per the guidelines issued by the Ministry of Health and Family Welfare (MoHFW) and the Indian Council of Medical Research (ICMR)., Amount of ex‑gratia payment: The Authority recommends an amount of Rs.50,000 (Fifty Thousand only) per deceased person, including those involved in relief operations or preparedness activities, subject to cause of death being certified as Covid‑19. Guidelines issued by MoHFW and ICMR on 3 September 2021 shall be applicable for certification and grievance redressal., Source of funds: The ex‑gratia assistance shall be provided by States from the State Disaster Response Fund (SDRF)., Disbursement: The District Disaster Management Authority (DDMA) or district administration shall disburse the ex‑gratia assistance to the next of kin of the deceased persons. Families will submit claims through a form issued by the State Authority along with specified documents, including the death certificate certifying Covid‑19 as the cause of death. The DDMA shall ensure a robust yet simple, people‑friendly procedure for claim verification, sanction and final disbursement. All claims must be settled within 30 days of submission of required documents and disbursed through Aadhaar‑linked Direct Benefit Transfer procedures., Grievance redressal: In case of any grievance regarding certification of death, a Committee at district level consisting of the Additional District Collector, Chief Medical Officer of Health (CMOH), Additional CMOH/Principal or Head of Department of Medicine of a Medical College (if one exists in the district) and a subject expert shall propose necessary remedial measures, including issuance of an amended official document for Covid‑19 death after verification. If the Committee’s decision is not in favour of the claimant, a clear reason shall be recorded., Continuous scheme: The ex‑gratia assistance to families affected by Covid‑19 deaths will continue to be provided for deaths that may occur in future phases of the Covid‑19 pandemic, or until further notification., The first affidavit filed on 08.09.2021 states that, in compliance with paragraph 16(2) of the judgment dated 30.06.2021, the Ministry of Health and Family Welfare, Government of India and the Indian Council of Medical Research jointly issued guidelines dated 3 September 2021 for issuance of an official document for Covid‑19 related deaths. The Office of the Registrar General of India also issued a circular dated 3 September 2021 to provide a medical certificate of cause of death to the next of kin of the deceased. The guidelines provide that Covid‑19 cases are those diagnosed through a positive RT‑PCR/Molecular Test/RAT or clinically determined in a hospital/in‑patient facility by a treating physician. Deaths due to poisoning, suicide, homicide, accident etc. will not be considered Covid‑19 deaths even if Covid‑19 is an accompanying condition., Guiding Principles: Covid‑19 cases, for the purpose of these guidelines, are those diagnosed through a positive RT‑PCR/Molecular Test/RAT or clinically determined through investigations in a hospital/in‑patient facility by a treating physician while admitted. Deaths due to poisoning, suicide, homicide, accident etc. will not be considered Covid‑19 deaths even if Covid‑19 is an accompanying condition., Scenario‑based approach and interventions: (i) Covid‑19 cases that have died either in hospital settings or at home, where a Medical Certificate of Cause of Death (MCCD) in Form 4 & 4A has been issued to the registering authority as required under Section 10 of the Registration of Birth and Death (RBD) Act, 1969, will be treated as Covid‑19 deaths. The Registrar General of India will issue necessary guidelines to Chief Registrars of all States/UTs. (ii) According to a study by ICMR, 95 % of deaths occur within 25 days of a positive test. To broaden the scope, deaths occurring within 30 days from the date of testing or from the date of clinical determination as a Covid‑19 case will be treated as deaths due to Covid‑19, even if the death occurs outside a hospital. (iii) A Covid‑19 case admitted in a hospital and continuing beyond 30 days, who subsequently dies, shall also be treated as a Covid‑19 death. (iv) Where the MCCD is not available or the next of kin is not satisfied with the cause of death, the State/UT shall notify a District Committee consisting of the Additional District Collector, CMOH, Additional CMOH/Principal or HOD Medicine of a Medical College (if one exists) and a subject expert to issue an Official Document for Covid‑19 death. The Committee shall: (a) receive a petition from the next of kin; (b) issue the Official Document in the prescribed format after verification; (c) communicate the document to Chief Registrars and the Registrar of Birth and Death; (d) examine grievances and, if necessary, issue an amended Official Document; (e) dispose of applications and grievances within 30 days of submission., It was reiterated that deaths occurring due to poisoning, suicide, homicide, accident etc. will not be considered Covid‑19 deaths even if Covid‑19 is an accompanying condition., During the last date of hearing, concerns were raised about certain clauses in the guidelines dated 3 September 2021, specifically the exclusion of deaths due to poisoning, suicide, homicide, accident etc. from being classified as Covid‑19 deaths., A concern was also expressed regarding the grievance redressal mechanism for certification of death. Under the guidelines dated 11 September 2021, clause 9 provides for the constitution of a Grievance Redressal Committee at district level consisting of the members mentioned in clause 9 of those guidelines., An additional affidavit dated 22 September 2021 was filed on behalf of the Union of India addressing issues raised by the Court on 13 September 2021. The affidavit highlighted that the guidelines are prospective in nature and raised a concern about the validity of certificates issued by hospitals or government authorities prior to the coming into force of the guidelines dated 3 September 2021. It was submitted that the guidelines define Covid‑19 cases as those diagnosed through a positive RT‑PCR/Molecular Test/RAT or clinically determined in a hospital/in‑patient facility by a treating physician. The affidavit sought clarification on whether certificates issued prior to 3 September 2021 could be corrected or re‑issued if they do not conform to the guidelines., The Court observed the need to ascertain the sanctity of documents received by families of deceased patients prior to the coming into force of these guidelines and inquired what documents the Committee would consider for granting financial benefits to persons whose death certificates were issued before the guidelines., The Ministry of Health and Family Welfare and ICMR clarified that death certificates indicating Covid‑19 deaths, whether issued prior to the guidelines or rectified by the District Committee, shall be treated as valid documents for considering a death as due to Covid‑19., A concern was raised regarding the timeline for constituting the District Committee as envisaged in the guidelines dated 3 September 2021. It was submitted that the timeline for setting up the Committee by the States may be prescribed as 30 days, with suitable instructions issued by the Ministry of Health and Family Welfare. The Court may also pass a mandamus directing all State Governments/UTs to constitute the Committee within 30 days in the interest of justice., Another concern was raised about the implementation and binding effect of the guidelines issued by the Ministry of Health, Disaster Management Cell, on the respective State Governments. It was submitted that all State Governments are respondents in the present petition and the guidelines have been framed in pursuance of the judgment of the Supreme Court of India; therefore, they are binding on the States. The Court may, in the interest of justice, issue a mandamus directing all States to comply scrupulously with the guidelines., During the hearing on 13 September 2021, the Court observed that there have been cases where persons suffering from Covid‑19 committed suicide. The Court was urged to pass suitable directions so that family members of persons who committed suicide within 30 days of being diagnosed as Covid‑19 positive are included within the ambit of financial assistance sought to be given by the Union of India under the guidelines framed under Section 12(iii) of the Disaster Management Act., Having heard Shri Tushar Mehta, Solicitor General of India, the writ petitioner Mr. Gaurav Kumar Bansal and Mr. Sumeer Sodhi, Advocate for the intervenor, and considering the guidelines dated 11 September 2021 issued by the NDMA under Section 12(iii) of the Disaster Management Act, 2005 on the amount of ex‑gratia assistance to the next of kin of the deceased due to Covid‑19, it appears that the NDMA has recommended an amount of Rs.50,000 as ex‑gratia payment to the next of kin of the deceased due to Covid‑19. The guidelines also provide that ex‑gratia assistance shall be provided by the States from the State Disaster Response Fund and shall be disbursed by the District Disaster Management Authority/District Administration., In furtherance of the earlier order dated 30.06.2021, the Court directs as follows: (i) the next of kin of a person who died due to Covid‑19 shall be paid ex‑gratia assistance of Rs.50,000, which shall be treated as ex‑gratia payment under Section 12(iii) of the Disaster Management Act, 2005 and shall be over and above any compensation payable by the Union of India, State Governments or Union Territories under various benevolent schemes; (ii) the ex‑gratia assistance of Rs.50,000 shall be provided by the concerned States from the State Disaster Response Fund; (iii) the assistance shall be disbursed by the District Disaster Management Authority/District Administration; (iv) the full particulars and address of the District Disaster Management Authority/District Administration shall be published in print and electronic media and in prominent offices such as Gram Panchayat, Taluk Panchayat, District Collector and Corporation offices within one week from today; (v) the assistance shall be disbursed within 30 days of submission of the application to the concerned District Disaster Management Authority/District Administration along with proof of death and certification that the death was due to Covid‑19; (vi) the amount shall be disbursed as per the guidelines dated 11 September 2021 even if the cause of death mentioned in the death certificate is not conclusive, provided other supporting documents are produced; (vii) no State shall deny the ex‑gratia assistance of Rs.50,000 to the next of kin solely because the death certificate does not state \died due to Covid‑19\; (viii) in case of any grievance regarding certification of death, the aggrieved person may approach the District Committee consisting of the Additional District Collector, CMOH, Additional CMOH/Principal or HOD Medicine of a Medical College (if one exists) and a subject expert, which shall take remedial measures including issuance of an amended official document after verification; (ix) the Committee shall carry out the directions while considering the case as Covid‑19. All States shall constitute such Committee within one week and publish its address and particulars in print and electronic media. In corporation areas, a similar Committee shall consist of the Deputy Commissioner, Medical/Health Officer, the Chief Medical Officer of Health of the Civil Hospital (if any), Additional CMOH/Principal/HOD Medicine of a Medical College (if one exists) and a subject expert, with its office at the Municipal Corporation. (x) If the Committee’s decision is not in favour of the claimant, a clear reason shall be recorded as a Grievance Redressal Committee; (xi) the ex‑gratia assistance to families affected by Covid‑19 deaths shall continue for future phases of the pandemic., Further directions regarding issuance of death certificates or official documents stating the exact cause of death, i.e., died due to Covid‑19, are as follows: (i) Covid‑19 cases for the purpose of considering deaths are those diagnosed through a positive RT‑PCR/Molecular Test/RAT or clinically determined in a hospital/in‑patient facility by a treating physician; (ii) deaths occurring within 30 days from the date of testing or from the date of clinical determination as a Covid‑19 case shall be treated as deaths due to Covid‑19, even if the death occurs outside a hospital; (iii) a Covid‑19 case admitted in a hospital and continuing beyond 30 days, who subsequently dies, shall also be treated as a Covid‑19 death; (iv) Covid‑19 cases that have died in hospital settings or at home, where an MCCD in Form 4 & 4A has been issued to the registering authority as required under Section 10 of the Registration of Birth & Death (RBD) Act, 1969, shall also be treated as Covid‑19 deaths. Irrespective of the cause of death mentioned in the death certificate, if a family member satisfies the eligibility criteria in (i) to (iv), they shall be entitled to the ex‑gratia payment of Rs.50,000 on production of requisite documents, and no State shall deny the payment on the ground that the death certificate does not state \died due to Covid‑19\; (v) all concerned hospitals shall provide necessary treatment documents to the family on demand, and if a hospital refuses, the Grievance Redressal Committee may call for such information; (vi) a family member of a deceased who committed suicide within 30 days of being diagnosed as Covid‑19 positive shall be entitled to the ex‑gratia assistance of Rs.50,000 under the SDRF as per the guidelines dated 11 September 2021; (vii) any grievance regarding non‑receipt of the ex‑gratia payment may be approached to the Grievance Redressal Committee, which shall examine medical records and decide within 30 days, with powers to call for documents from hospitals; (viii) the District Disaster Management Authority/District Administration and the Grievance Redressal Committee shall act as a helping hand to avoid technicalities and alleviate the suffering of families; (ix) if a death certificate already issued is contested, the aggrieved person may approach the authority that issued the certificate or the registering authority to modify/amend it on production of supporting documents such as a positive RT‑PCR/Molecular Test/RAT or clinical determination. If still aggrieved, the person may approach the Grievance Redressal Committee, and the registering authority shall ratify/amend the certificate as directed., The National Disaster Management Authority, Ministry of Health and Family Welfare and the Union of India are directed to issue guidelines to the concerned States/Union Territories incorporating the directions hereinabove, which shall be binding on all States/Union Territories., Miscellaneous Application No. 1120/2021 stands disposed of with the aforesaid directions. October 04, 2021. [A.S. Bopanna] Miscellaneous Application No. 1120/2021 in W.P.(C) No. 539/2021 (Arising out of impugned final judgment and order dated 30-06-2021 in W.P.(C) No. 539/2021 passed by the Supreme Court of India) Date: 04-10-2021. This matter was called on for hearing today.
id_484	1	For Parties: Mr. Tushar Mehta, Solicitor General; Ms. Aishwarya Bhati, Senior Government Advocate; Mr. Rajat Nair, Additional Solicitor General; Mr. Amit Sharma, Advocate; Mr. Sughosh Subramanyam, Advocate; Mr. Sumeer Sodhi, Petitioner-in-person; Advocate on Record. Upon hearing the counsel, the Supreme Court of India made the following: Miscellaneous Application stands disposed of in terms of the signed reportable order. Pending applications, if any, also stand disposed of. (Signed reportable order is placed on the file).
id_486	0	Vidya Amin Sayli B. Parkhi, Petitioner, versus State of Maharashtra & Others, Respondents. Mr. Mayur Khandeparkar appearing with Mr. Vikramjit Garewal, Mr. Ajinkya Udhane, Ms. Vinali Bhaidkar in behalf of Mrs. Pushpanjali Arora for the petitioner. Mr. Amit Shastri, Advocate General of the State for respondent No. 1. Mr. Kunal Waghmare for Municipal Corporation of Greater Mumbai. Dated: 24 April 2023., The question which falls for consideration is whether the petitioner, under the terms of an Eating House License granted to her by the Municipal Corporation, would be permitted to serve Hookah or what is claimed as Herbal Hookah., The petitioner has described herself as an entrepreneur carrying on business under the name and style of M/s. Parkhi Hospitalities and is running a restaurant/lounge named The Orange Mint at 16 C, Asha Studio, S. T. Road, Chembur, Mumbai., This petition is moved praying for relief that the impugned order dated 18 April 2023, passed by the Medical Officer of Health, West Ward, directing the petitioner that if within seven days from the date of said order the activity of serving Hookah/Herbal Hookah in the service area by using burnt charcoal is found to be continued, the Eating House License granted to the petitioner shall be cancelled/revoked without any further notice., The impugned order is passed on the backdrop of an earlier writ petition filed by the petitioner, being Writ Petition No. 501 of 2023. The Municipal Corporation issued two show‑cause notices to the petitioner. The first show‑cause notice was issued on 20 September 2022 and the second show‑cause notice was dated 1 February 2023. The show‑cause notices were in relation to the objectionable activity of the petitioner of serving Hookah, which the petitioner stated to be Herbal Hookah., The Municipal Corporation has taken a stand that granting of an Eating House License under section 394 of the Mumbai Municipal Corporation Act, 1888 (for short Mumbai Municipal Corporation Act) would not permit the petitioner to conduct any Hookah activity, including serving Herbal Hookah. Accordingly, such show‑cause notices were issued, which were the subject matter of Writ Petition No. 501 of 2023. A coordinate Bench of the Bombay High Court, after hearing the parties, disposed of the said writ petition by order dated 13 February 2023 directing that the issues be decided by passing an order on the show‑cause notices. The said order passed by the Bombay High Court reads thus:, Rule. Rule made returnable forthwith. Heard learned counsel for the parties. At the outset, the learned counsel for the petitioner has tendered a draft amendment, seeking leave to raise a challenge to the show‑cause notice dated 1 February 2023 that was issued during the pendency of the proceedings. The amendment is granted. It shall be carried out forthwith. Re‑verification is dispensed with., It is the case of the petitioner that she is proprietor of the restaurant, which is serving Herbal Hookah. Respondent No. 7, who claims to be a social activist, filed a complaint against the petitioner with the Municipal Corporation, pursuant to which the restaurant of the petitioner was inspected and further notices were issued. One of the notices issued to the petitioner is dated 28 September 2022, stating that license condition Nos. 8 and 12 had been breached. The petitioner filed a reply to the said notice and the Deputy Municipal Commissioner, on 21 November 2022, directed the concerned officer to obtain clarification in the matter insofar as the activity of permitting Herbal Hookah was concerned. It is thereafter that the fresh show‑cause notice dated 1 February 2023 was issued., The petitioner submits that the show‑cause notice has been issued without any due authority of law and it is urged that the provisions of section 394 of the Mumbai Municipal Corporation Act, 1888 are not attracted., We find that the order under challenge is only a show‑cause notice which has been issued to the petitioner. If the petitioner raises any permissible ground to indicate that the show‑cause notice is not justified, it would be for the Municipal Corporation to consider the same and take a decision thereon. The interest of justice would be served by issuing the following directions: (i) The petitioner shall, within a period of ten days from today, submit her reply to all the show‑cause notices including the show‑cause notice dated 1 February 2023. (ii) The Medical Officer of Health of the Municipal Corporation of Greater Mumbai shall grant an opportunity of hearing to the petitioner and thereafter take a decision on the said show‑cause notice within a period of four weeks from the grant of such hearing. The Medical Officer of Health is free to consider whether the representation of Respondent No. 7 deserves consideration or not. (iii) The decision taken by the Medical Officer of Health shall be communicated to the petitioner accordingly. Without prejudice to the rights and contentions of either party, if any adverse order is passed by the Medical Officer of Health, the same shall not be given effect for a period of seven days from the date of service of the order on the petitioner. (iv) Keeping all challenges on merits open, the writ petition is disposed of with the aforesaid directions. Rule accordingly. No costs., On the above backdrop, the impugned order has been passed after hearing the petitioner, inter alia directing the petitioner to stop serving Hookah, failing which the Eating House License shall be cancelled., The petitioner has raised two‑fold contentions, firstly, that the impugned order does not furnish reasons and secondly, that the impugned order is illegal insofar as what is stated in the show‑cause notice was an objection of breach of condition Nos. 8 and 12, which would not pertain to any Hookah activity., We have perused the record. The record contains an inspection report of the Public Health Department of the Municipal Corporation dated 18 August 2022. The inspection report has categorically observed that the petitioner is serving Herbal Hookah using flame or burnt charcoal at the service area of the petitioner’s Eating House. Such inspection report called upon the petitioner to rectify the said activity within seven days, failing which legal action under section 394 of the Mumbai Municipal Corporation Act shall be initiated. The relevant extract of the inspection report reads thus: Infringement of license condition under section 394 of the Mumbai Municipal Corporation Act., Findings – The above‑mentioned trade was inspected on 18/08/2022 at 2.40 p.m. when Vishruth Ashok Sharma, age 33 years, manager, was present and found the following license conditions infringed: General condition No. 6 – License is not exhibited in the trade premises. General condition No. 8 – Serving Herbal Hookah using flame or burnt charcoal at service area. You are therefore directed to rectify the above‑mentioned conditions within seven (7) days from the date of receipt of the inspection report, failing which legal action under section 394 of the Mumbai Municipal Corporation Act will be initiated against you. Explained in Marathi/Hindi language., A second inspection was undertaken and an inspection report dated 16 September 2022 was prepared, which refers to the Hookah activity being conducted by the petitioner. The relevant extract reads thus: Infringement of license condition under section 394 of the Mumbai Municipal Corporation Act (Eating House) Findings – The above‑mentioned trade, Eating House, was inspected on 16/09/2022 at 4.55 p.m. when Mr. Vishruth Ashok Sharma, age 33 years, manager, was present and found the following license conditions infringed: General condition No. 8 – Serving Herbal Hookah using flame or burnt charcoal at service area; General condition No. 12 – Serving Hookah, other than the permitted license which was issued for Eating House only. You are therefore directed to rectify the above‑mentioned conditions within seven (7) days from the date of receipt of the inspection report, failing which legal action under section 394 of the Mumbai Municipal Corporation Act will be initiated against you. Explained in Marathi language., There is a third inspection report dated 12 January 2023 which categorically refers to the petitioner conducting an activity of smoking Hookah, which was not the permitted activity of an Eating House. It was observed that the trade activity, i.e., smoking, may cause fire or otherwise endanger public safety. The relevant extract reads thus: Findings – The above‑mentioned trade, Eating House, was visited and inspected on 12/01/2023 at 4.45 p.m. when Mr. Vishruth Ashok Sharma, age 33 years, person in charge, was present and found the following license conditions infringed: General condition No. 12 – License is not exhibited in the trade premises. General condition No. 8 – Serving Herbal Hookah using flame or burnt charcoal at service area. You are therefore directed to rectify the above‑mentioned conditions within seven (7) days from the date of receipt of the inspection report, failing which legal action under section 394 of the Mumbai Municipal Corporation Act will be initiated against you., It is on such backdrop that the show‑cause notice dated 20 September 2022 was issued to the petitioner, calling upon the petitioner to show cause as to why the Eating House license should not be revoked/cancelled in the event the petitioner does not stop the other service activity using flame/burnt charcoal in the service area. The notice clearly references the violation of General Condition No. 8 – Using flame/burnt charcoal other than approved in fire condition in service area, and General Condition No. 12 – Conducting the other activity (other than permitted license). The contents of the notice read thus: Above Eating House M/s. Parkhi Hospitalities (Orange Mint), License No. 887780133, situated at 16 C, Asha Studio, S.T. Road, Chembur, Mumbai 400071, was inspected by the concerned sanitary inspector on 18.08.2022 and 16.09.2022. During inspection, the following violations of license conditions were observed: (1) General Condition No. 8: Using flame/burnt charcoal other than approved in fire condition in service area. (2) General Condition No. 12: Conducting the other activity (other than permitted license). In view of the above, you are hereby directed to submit your explanation within seven (7) days why the license should not be revoked/cancelled and to stop the other service activity using flame/burnt charcoal in the service area, failure of which you will be liable for further necessary action of revocation and cancellation of the Eating House License without any further notice., The second show‑cause notice dated 1 February 2023 was on similar lines and alleged breach of General Condition No. 8, General Condition No. 12 and General Condition No. 20. The notice reads thus: Above Eating House M/s. Parkhi Hospitalities (Orange Mint), License No. 887780133, situated at 16 C, Asha Studio, S.T. Road, Chembur, Mumbai 400071. The said license was issued only for an Eating House. The Eating House was inspected by the concerned sanitary inspector on 18.08.2022, 16.09.2022 and 12.01.2023 and inspection reports were issued accordingly. During these inspections the following violations of the license condition were observed: (1) General Condition No. 8: Using flame/burnt charcoal other than approved in fire condition in service area. (2) General Condition No. 12: Conducting the other activity in the license area (activity other than the permitted license). (3) General Condition No. 20: Endangerment to public safety. Show‑Cause Notice No. 1 was issued on 20.09.2022, giving sufficient time for rectification of General Conditions No. 8 and 12. Nevertheless, as per the reply letter dated 19.01.2023 with reference to Inspection Report No. 0008186 dated 12.01.2023, the establishment continued to violate conditions No. 8 and 12. In view of the above, you are once again directed to submit your explanation within seven (7) days as to why the license should not be revoked/cancelled, failure of which you will be liable for further necessary action of revocation/cancellation without further notice., The petitioner was heard by the Designated Officer in pursuance of the order dated 13 February 2023 passed by the coordinate Bench of the Bombay High Court in Writ Petition No. 501 of 2023, and the impugned order is passed. The impugned order refers to the inspection reports dated 18 August 2022, 16 September 2022 and 12 January 2023, inter alia observing that the Eating House was conducting the activity of serving Herbal Hookah by using burnt charcoal in the service area, directly violating condition Nos. 8, 12 and 20 of the General License Conditions. On hearing the petitioner, the Designated Officer observed that the Herbal Hookah activity in the Eating House premises is seriously objectionable as it endangers public safety and puts life at risk, thereby breaching General License Conditions Nos. 8 and 20. The petitioner was directed to stop such activity within seven (7) days from the issuance of the order, failing which further steps to cancel/revoke the license of the Eating House will be required. The order reads thus: Office of the Medical Officer of Health, West Ward, Office building, Room No. 208, Second Floor, Sharadbhau Acharya Marg, Chembur, Mumbai 400071. E‑mail: mohmw.phd@mcgm.gov.in. Smt. Sayli Bhairavnath Parkhi, M/s. Parkhi Hospitalities (Orange Mint), 16 C, Asha Studio, S.T. Road, Chembur, Mumbai 400071. Sub: Cancellation/Revocation of the Eating House Licence No. 887780133 – M/s. Parkhi Hospitalities (Orange Mint). Ref.: (1) Court order dated 13/02/2023 passed in Writ Petition No. 501 of 2023 by Hon'ble Justice Chandurkar and Hon'ble Justice Chandwani. (2) Hearing for M/s. Parkhi Hospitalities (Orange Mint) vide letter dated 13.03.2023. The Eating House licence was issued for an Eating House. During inspections dated 18.08.2022, 16.09.2022 and 12.01.2023 it was observed that the Eating House was conducting the activity of Herbal Hookah by using burnt charcoal in the service area, directly violating conditions No. 8, 12 and 20 of the General License Conditions, as notified through Inspection Reports No. 0008068, 0008083 and 0008186. The Show‑Cause Notices dated 20.09.2022 and 01.02.2023 were challenged by the petitioner in the Hon'ble High Court. The reply to the show‑cause notices submitted by the petitioner on 23.02.2023 was received on 23.02.2023. The hearing was conducted on 20.03.2023. In view of the hearing, this office is of the opinion that the Herbal Hookah activity in the Eating House premises is strongly objectionable as it endangers public safety and puts life at risk, thereby breaching General License Conditions No. 8 and 20. Accordingly, the following decisions are passed: (1) Only Eating House activity shall be carried out under Licence No. 887780133 issued to M/s. Parkhi Hospitalities (Orange Mint). No other activity other than the permitted licence shall be allowed. (2) The Hookah/Herbal Hookah activity shall be stopped at the above Eating House premises. As per the Hon'ble High Court orders dated 13/02/2023, this office has communicated the decision taken by the Medical Officer of Health, West Ward by this letter. After seven (7) days from the date of receipt of this letter, any continuation of serving Hookah/Herbal Hookah in the service area by using burnt charcoal shall result in cancellation/revocation of the licence without any further notice., Mr. Khandeparkar, learned counsel for the petitioner, has limited contentions in assailing the impugned order. The objections are on technical issues, firstly that no reasons are given by the Designated Officer/Municipal Corporation in passing the impugned order. In our opinion, the reasons contained in the impugned order are more than sufficient to bring home the petitioner’s violation of the terms and conditions of the license, namely that the objected activity was the Hookah activity, which was the entire cause of concern, being the breach of the license conditions. We are therefore not inclined to accept the contention urged on behalf of the petitioner that the impugned order is not a reasoned order. The reasons set out in the impugned order are sufficient to indicate that the petitioner was in breach of the license conditions in conducting the Hookah activity. It is not expected from the licensing authority that an unnecessarily verbose lengthy order be passed as expected by the petitioner. Explicitly setting out the breach of the terms and conditions of the license on the basis of the material is certainly sufficient., The second contention urged on behalf of the petitioner is that section 394 of the Mumbai Municipal Corporation Act would not take within its ambit an issue in relation to any Hookah activity. We have perused the provisions of section 394 of the Mumbai Municipal Corporation Act, which provides for certain articles or animals not to be kept, and certain trades, processes and operations not to be carried on without a license, and things liable to be seized, destroyed, etc., to prevent danger or nuisance., Section 394 – Certain articles [or animals] not to be kept, and certain trades, processes and operations not to be carried on, without a license; and things liable to be seized, destroyed, etc., to prevent danger or nuisance. (1) Except under and in accordance with the terms and conditions of the license granted by the Commissioner, no person shall (a) keep, or suffer or allow to be kept, in or upon any premises, (i) any article specified in Part I of Schedule M; or (ii) any article specified in Part II of Schedule M, in excess of the quantity therein specified as the maximum quantity (or where such article is kept along with any other article or articles specified in that Schedule, such other maximum quantity as may be notified by the Commissioner) of such article which may at any one time be kept in or upon the same premises without a license; (b) keep, or suffer or allow to be kept, in or upon any premises, for sale or for other than domestic use, any article specified in Part III of Schedule M; (c) keep, or suffer or allow to be kept, in or upon any premises, horses, cattle or other four‑footed animals for sale, for letting out on hire or for any purpose for which any charge is made or any remuneration is received, or for the sale of any produce thereof; (d) keep or use, or suffer or allow to be kept or used, in or upon any premises, any article [or animal] which, in the opinion of the Commissioner, is dangerous to life, health or property, or likely to create a nuisance either from its nature or by reason of the manner in which, or the conditions under which, the same is, or is proposed to be, kept or used; (e) carry on, or allow or suffer to be carried on, in or upon any premises, (i) any of the trades specified in Part IV of Schedule M, or any process or operation connected with any such trade; (ii) any trade, process or operation which, in the opinion of the Commissioner, is dangerous to life, health or property, or likely to create a nuisance; (f) carry on within Brihan Mumbai or use or allow to be used any premises for the trade or operation of a carrier. (2) The State Government may, by notification in the Official Gazette, add to, amend or delete any item in Schedule M and the said Schedule shall be deemed to be amended accordingly, without prejudice to anything done or omitted to be done before such amendment. (3) A person shall be deemed (a) to have known that keeping any article [or animal] or carrying on a trade, process or operation is, in the opinion of the Commissioner, dangerous or likely to create a nuisance within the meaning of clause (d) or, as the case may be, paragraph (ii) of clause (e), of sub‑section (1), after written notice to that effect, signed by the Commissioner, has been served on such person or affixed to the premises; (b) to keep or suffer or allow the keeping of an article [or animal] or to carry on or allow to be carried on a trade, process or operation within the meaning of clause (d) or, as the case may be, paragraph (ii) of clause (e) of sub‑section (1), if he does any act in furtherance of keeping such article or animal or carrying on such trade, process or operation or is in any way engaged or concerned therein whether as principal, agent, clerk, master, servant, workman, handicraftsman, watchman or otherwise. (4) If it appears to the Commissioner that the keeping of any article [or animal] or the carrying on of any trade, process or operation in or upon any premises is dangerous or likely to create a nuisance, the Commissioner may, by written notice, require the person to take such measures (including discontinuance of the use of the premises for any such purpose) as may be specified. If such measures are not taken within the specified time, the Commissioner may seize and carry away or seal such article [or animal] or any machinery or device used in connection with such trade, process or operations. Any seized article may be redeemed within one month on payment of a sum and subject to conditions fixed by the Commissioner. If the seized article is of an explosive or dangerous nature, the Commissioner may cause it to be destroyed. If not claimed, the Commissioner may cause it to be sold by auction. (5) It shall be in the discretion of the Commissioner (a) to grant any license referred to in sub‑section (1), subject to such restrictions or conditions as he shall think fit, or (b) for the purposes of ensuring public safety, to withhold any such license. The Commissioner, when withholding any license, shall record his reasons in writing and furnish the person concerned a copy of the order. Any person aggrieved by an order of the Commissioner under this sub‑section may, within sixty days of the date of such order, appeal to the Chief Judge of the Small Cause Court, whose decision shall be final. (6) Every person to whom a license is granted shall (a) keep such license in or upon the premises to which it relates; (b) put up a board outside such premises on a conspicuous part, indicating the nature of the article [or animal] kept or the trade, process or operation carried on, the municipal license number and the name and local address of the owner or occupier; (c) put a proper label on the packing or container of every licensable article to indicate its name, contents and hazardous nature. (7) The Commissioner may, from time to time with the approval of the Standing Committee, specially exempt from the operation of this section any mills for spinning or weaving cotton, wool, silk or jute or any other large mill or factory., On a bare reading of the provisions of section 394, it is evident that sub‑section (1)(d) categorically provides that, except under and in accordance with the terms and conditions of the license granted by the Commissioner, no person shall keep or use, or suffer or allow to be kept or used, in or upon any premises, any article or animal which, in the opinion of the Commissioner, is dangerous to life, health or property, or likely to create a nuisance either from its nature or by reason of the manner in which, or the conditions under which, the same is, or is proposed to be, kept or used. Further, sub‑section (3)(a) provides that a person shall be deemed to have known that keeping any article or animal or carrying on a trade, process or operation is, in the opinion of the Commissioner, dangerous or likely to create a nuisance, after written notice to that effect signed by the Commissioner has been served on such person or affixed to the premises. Sub‑section (5) clearly provides that it shall be in the discretion of the Commissioner to grant any license referred to in sub‑section (1), subject to such restrictions or conditions as he shall think fit, and for the purposes of ensuring public safety, to withhold any such license. The proviso below sub‑section (5) ordains a remedy that any person aggrieved by an order of the Commissioner under this sub‑section may, within sixty days of the date of such order, appeal to the Chief Judge of the Small Cause Court, whose decision shall be final., In our opinion, on a holistic reading of section 394 of the Mumbai Municipal Corporation Act, the contention of the petitioner that the Eating House license granted to her permits Hookah activities or the conduct of any Hookah parlour under the terms and conditions of the Eating House license is totally untenable. The canvas of section 394 of the Mumbai Municipal Corporation Act is quite broad to take within its ambit articles, trades and operations which are dangerous to life, health or likely to create nuisance, as extensively described in the provision.
id_486	1	The intention of the legislature can be derived from the explicit wordings of the provision, when it takes within its ambit issues inter alia in regard to articles, trade, process or operation which in the opinion of the Commissioner are dangerous to life, health or property or are likely to create nuisance either from its nature or by reason of the manner in which or the conditions under which the same are or are proposed to be used and carried on. Thus, a narrow interpretation cannot be attributed to Section 394. It is also clearly seen from Section 394 that it is the discretion of the Municipal Commissioner to grant an eating house licence, hence if the discretion is exercised by the Municipal Commissioner within the parameters of law, there is no question of any applicant for grant of the eating house licence claiming any absolute legal right to be entitled to a licence. It also cannot be conceived that an activity which is not specifically permitted under the terms and conditions of licence would be deemed to be included in any licence conditions. Such reading of the licence conditions would lead to an absurdity., It thus cannot be countenanced that grant of a licence to conduct an eating house is deemed to include a licence to conduct hookah activities. Such cannot be the interpretation of Section 394 of the Mumbai Municipal Corporation Act. The Municipal Commissioner in granting a licence is certainly required to apply his mind to such issues which are dangerous to life, health or property of the citizens, as also to issues which are likely to create a nuisance either from its nature or by reason of the manner in which, or the conditions under which, the same are inter alia used, kept or suffered, as clearly ordained by Section 394(1)(d) of the Mumbai Municipal Corporation Act. In our opinion, in the present case, the Municipal Commissioner has appropriately exercised his discretion and authority to prevent the petitioner from conducting the smoking/hookah activities of the nature carried out by the petitioner., This apart, if the connotation of Section 394 of the Mumbai Municipal Corporation Act as canvassed on behalf of the petitioner is accepted, it would be nothing but doing violence to the said provision, as such interpretation would mean that once an eating house licence is granted, it would deem to include permission to conduct activities of a hookah parlour, or other similar activities. Certainly such object and intention of the legislature can neither be derived nor attributed to the provisions of Section 394 of the Mumbai Municipal Corporation Act. Even otherwise, it may not be possible even for the eating house to control the ingredients of the hookah once the apparatus is in the custody of the customers. Illustratively, in a restaurant or eating house where children, women and elderly visit for refreshments/eating, it cannot be expected that hookah is one of the menus being served and more particularly of the category as offered by the petitioner using flame or burnt charcoal. This would amount to an absolute nuisance in so far as an eating house is concerned. Further, if this is to be a reality, the impact it would create on such customers at the eating house can just be imagined., We are thus not persuaded to accept any of the contentions as urged on behalf of the petitioner. By the impugned order, the petitioner has been rightly prevented from undertaking hookah activities., Mr. Khandeparkar has drawn our attention to an order dated 15 July 2019 passed by the Coordinated Bench of the Bombay High Court in Criminal Writ Petition No. 2719 of 2019 in Ali Reza Abdi vs. The State of Maharashtra & Ors. The observations as made in paragraph 9 of the said order are relied upon by Mr. Khandeparkar, wherein the Division Bench, in the context of the criminal proceedings it was dealing with, observed that the Municipal Commissioner has taken a stand by stating that the hookah parlours do not fall within the ambit of eating house and therefore do not fall within the provision of Section 394 of the Mumbai Municipal Corporation Act. The Division Bench then proceeded to make an observation on which emphasis is laid by Mr. Khandeparkar that the contention of the Municipal Commissioner appears to be the effect that under the Mumbai Municipal Corporation Act, no licence is required for the hookah bar. The Division Bench in such case was examining as to whether the product contains tobacco, nicotine, narcotic or any psychotropic substance. In such context, the Court also examined the provisions of the 2018 Amendment to the Cigarettes and Other Tobacco Products Act, 2003 (COTPA Act). This was the case in which no action akin to the action taken in the present petition was taken by the Municipal Corporation. The Court examining such issue made such passing observations on the stand of the Municipal Corporation. In our considered opinion, such observations as noted above would certainly not assist the petitioner. The relevant observations as made by the Division Bench in the said order read thus:, 9. Mr. Gole, learned counsel for respondent No. 2 Municipal Corporation, placed on record the communication dated 10 January 2018 issued by the Municipal Commissioner of the Bombay Municipal Corporation to the Additional Chief Secretary (HOME). This communication is the Municipal Commissioner’s response to the Additional Chief Secretary in pursuance of the letter from the Commissioner of Police regarding hookah parlours in Mumbai City. The Municipal Commissioner made his stand clear by stating that hookah parlours do not fall under the ambit of eating house and therefore do not fall within the provision of Section 394 of the Mumbai Municipal Corporation Act under notified trades for licence. In short, the contention of the Municipal Commissioner is that under the Mumbai Municipal Corporation Act no licence is required for the hookah bar. However, the police officers are empowered to take legal action for the infringement of the conditions imposed under the Cigarettes and Other Tobacco Products Act as well as taking action on the hookah parlours where drugs/narcotics are provided and consumed which falls under the purview of the Police Department.\n\n10. In the light of the above it is clear that the petition is filed on a mere apprehension and as long as the petitioner complies with the provisions of the Cigarettes and Other Tobacco Products Act and does not serve any prohibited substance in the hookah parlour then no action can be taken against them. However, it is made clear that if it is found the petitioner is selling/using any substance prohibited under the COTPA Act then surely action can be taken against him. We find that at this stage no declaration more than what is stated above is necessary. (emphasis supplied), The petitioner’s reliance on the said order passed in Criminal Writ Petition No. 2719 of 2019 is totally unfounded also for the reason that the issue, subject matter of consideration in the present case is an action being taken by the Municipal Corporation against the petitioner for breach of the licence conditions, which was not the case in the proceedings of the said criminal writ petition. The present case is not a case of an activity of a pure hookah parlour, as the case of the petitioner is purely on an eating house licence granted to her and whether it would include hookah activities. Also, the observation of the Division Bench as emphasized by Mr. Khandeparkar is not on any interpretation of Section 394 of the Mumbai Municipal Corporation Act., Before parting, we may observe that in the present case, the Municipal Commissioner, taking into consideration the facts and circumstances of the case and the overall situation, has appropriately used his discretion in taking the impugned decision, also bearing in mind the requirements of the licence conditions. It cannot be overlooked that the Municipal Commissioner is not expected to keep a continuous vigil on the hookah trade/activities of the petitioner, including on the petitioner’s claim of its herbal ingredients and the further claim that they are not affecting health or creating a nuisance, as specified in the licence conditions to run an eating house. Once it is clear that hookah activities are not part of the eating house licence conditions, such activity cannot be permitted., If it is permitted, every eating house in the city can provide hookah, the nature of which the Municipal Commissioner in the normal course of his duties cannot ascertain. This would result in a situation beyond one’s imagination and totally uncontrolled., It may also be observed that when licensing provisions are incorporated in municipal legislations, the same are required to be interpreted keeping in mind the object of the legislation, which would include achieving societal welfare and public good not only from the point of public health but avoidance of public nuisance., In the light of the above discussion, we find no merit in the petition. The petition is dismissed. No costs.
id_487	0	Writ Petition (Criminal) No. 202/2022, reserved on 29 January 2024 and pronounced on 31 January 2024, filed by Muyeeb Shafi Ganie, petitioner, through Mr. Wajid Haseeb, Advocate, versus Union Territory of Jammu and Kashmir and others, respondents, through Mr. Sajad Ashraf, Government Advocate., Through this writ petition, the petitioner seeks to quash Detention Order No. DMS/PSA/09/2022 dated 7 April 2022, passed by the District Magistrate, Srinagar, under which the detainee, namely Muyeeb Shafi Ganie, son of Mohammad Shafi Ganie, resident of Sabzi Mandi, Soura, Srinagar, has been placed under preventive detention to prevent him from acting in any manner prejudicial to the maintenance of security of the state, and to set the detainee at liberty on the grounds mentioned therein., The main grounds for quashing the detention are that the grounds of detention are vague, indefinite and cryptic, as the detaining authority has not attributed any specific allegation against the detainee; that the detaining authority has not furnished the material, including the dossier relied upon by it, to the detainee to enable him to make an effective representation by giving his version of the facts and to attempt to dispel the apprehensions of the detaining authority concerning his alleged involvement in activities; that the grounds of detention do not give details or particulars of the terrorists whom the detainee is alleged to have met or of those who are alleged to have received assistance from the detainee; and that there is no live link between the last activity and the impugned order of detention, insofar as First Information Report No. 48/2020 of Police Station Soura has been taken into account by the detaining authority while passing the impugned order, unmindful of the fact that the detainee was bailed out in that FIR on 19 August 2020 and there have been no further activities alleged against him., The respondents have filed a reply affidavit, insisting that the activities indulged in by the detainee are highly prejudicial to the maintenance of security of the State and, therefore, his remaining at large is a threat to the security of the State. The activities narrated in the grounds of detention have been reiterated in the reply affidavit filed by the respondents. The factual averments that the detainee was not supplied with the relevant material relied upon in the grounds of detention have been refuted. It is insisted that all the relevant material relied upon by the detaining authority was provided to the detainee at the time of execution of the warrant., I have heard learned counsel for the parties. I have gone through the detention record produced by the counsel appearing for the respondents and considered the matter., Taking into account the rival contentions of the parties and submissions made by learned counsel for the parties, it would be relevant to go through the detention record produced by counsel for the respondents. The detention record, inter alia, contains an Execution Report and a Receipt of Grounds of Detention. It would be advantageous to reproduce the relevant portion of the Execution Report hereunder: the detention order (one leaf), notice of detention (one leaf), grounds of detention (two leaves), dossier of detention (nil), copies of First Information Report, statements of witnesses and other related documents (one leaf), total five leaves, have been handed over to the above‑said detainee., It would also be appropriate to reproduce the relevant portion of the Receipt of Grounds of Detention herein: received copies of the detention order (one leaf), notice of detention (one leaf), grounds of detention (two leaves), dossier of detention (nil), copies of First Information Report, statements of witnesses and other related documents (one leaf), total five leaves, through the executing officer., It is evident from a bare perusal of the Execution Report and the Receipt of Grounds of Detention that only five leaves have been given to the detainee., Perusal of the impugned detention order reveals that on the basis of a dossier placed before the detaining authority by the Senior Superintendent of Police, Srinagar, vide No. LGL/Det‑PSA/2022/6058‑59 dated 6 April 2022, the detaining authority was satisfied that there were sufficient grounds to prevent the detainee from acting in any manner prejudicial to the maintenance of security of the State, and it was necessary to detain him under the appropriate provisions of law. Thus, the impugned detention order was passed on the basis of the dossier and other connected material and documents. The grounds of detention refer to First Information Report No. 48/2020 registered against the detainee at Police Station Soura. The involvement of the detainee in the aforesaid case appears to have weighed with the detaining authority while making the detention order. The detention record, as noted above, does not indicate that copies of the aforesaid First Information Report, statements recorded under Section 161 of the Criminal Procedure Code, and other material collected in connection with the investigation of the case were ever supplied to the detainee, on the basis of which the impugned detention order was passed. The aforesaid material thus assumes importance in the facts and circumstances of the case., It needs no emphasis that the detainee cannot be expected to make a meaningful exercise of his constitutional and statutory rights guaranteed under Article 22(5) of the Constitution of India and Section 13 of the Jammu and Kashmir Public Safety Act, 1978, unless and until the material on which the detention order is based is supplied to him. Only after the detainee has all the said material available can he make an effort to convince the detaining authority and thereafter the Government that their apprehensions regarding his activities are baseless and misplaced. If the detainee is not supplied with the material on which the detention order is based, he will not be in a position to make an effective representation against his detention order. The failure of the detaining authority to supply the material relied upon at the time of making the detention order to the detainee renders the detention order illegal and unsustainable. In this regard I draw support from the law laid down in Tahira Haris etc. v. Government of Karnataka, AIR 2009 SC 2184; Union of India v. Ranu Bhandari, 2008 Criminal Law Journal 4567; Dhannajoy Dass v. District Magistrate, AIR 1982 SC 1315; Sofia Gulam Mohd Bham v. State of Maharashtra and others, AIR 1999 SC 3051; and Syed Aasiya Indrabi v. State of Jammu and Kashmir & others, 2009 (I) SLJ 219., The Supreme Court of India in Abdul Latief Abdul Wahab Sheikh v. B.K. Jha, 1987 (2) SCC 22, has held that only the procedural requirements are the safeguards available to the detainee and must be followed and complied with, as the Court is not expected to go behind the subjective satisfaction of the detaining authority. In the present case, procedural requirements, as discussed above, have not been followed and complied with by the respondents in letter and spirit, and consequently, the impugned detention needs to be quashed., The question whether the prejudicial activities of a person requiring a detention order are proximate in time to when the order is made, or whether the live link between the prejudicial activities and the purpose of detention is broken, depends on the facts and circumstances of each case. Nonetheless, when there is an undue and long delay between the prejudicial activities and the passing of the detention order, the Supreme Court of India must scrutinize whether the detaining authority has satisfactorily examined such a delay and afforded a tenable and reasonable explanation for it, and further investigate whether the causal connection has been broken in the circumstances of each case. Certainly, in the present case, there is no cogent explanation from the perusal of the grounds of detention with reference to the live link between the prejudicial activities and the purpose of detention, and consequently, the impugned detention order is liable to be quashed. In this regard reference is made to the law laid down in T. A. Abdul Rahman v. State of Kerala (1989) 4 SCC 741 and Rajendra Arora v. Union of India and others (2006) 4 SCC 796., The law on the subject is settled. If the detaining authority is apprehensive that, in case the detainee is released on bail, he may again carry on his criminal activities, then the authority should oppose the bail application and, if bail is granted, the authority should challenge such a bail order in a higher forum. Merely on the ground that an accused in detention is likely to get bail, an order of preventive detention should not ordinarily be passed. Paragraph 24 of the judgment passed in Sama Aruna v. State of Telangana and another, AIR 2017 SC 2662, reads as follows: “There is another reason why the detention order is unjustified. It was passed when the accused was in jail in Crime No. 221 of 2016. His custody in jail for the said offence was converted into custody under the impugned detention order. The incident involved in this offence is sometime in the year 2002‑2003. The detainee could not have been detained preventively by taking this stale incident into account, more so when he was in jail.” In Ramesh Yadav v. District Magistrate, Etah and Others, this Supreme Court of India observed as follows: “On a reading of the grounds, particularly the paragraph which we have extracted above, it is clear that the order of detention was passed as the detaining authority was apprehensive that in case the detainee was released on bail he would again carry on his criminal activities in the area. If the apprehension of the detaining authority was true, the bail application had to be opposed and, in case bail was granted, a challenge against that order in the higher forum had to be raised. Merely on the ground that an accused in detention as an under‑trial prisoner was likely to get bail, an order of detention under the National Security Act should not ordinarily be passed.”, There is force in the submission of learned counsel for the petitioner that there is no live link between the last activity and the impugned detention order because First Information Report No. 48/2020 has been taken into account by the detaining authority while passing the impugned order, unmindful of the fact that the detainee was admittedly bailed out in that FIR and there have been no further activities alleged against the detainee. Consequently, the impugned order of detention is liable to be quashed., Based on the above discussion, the petition is disposed of and Detention Order No. DMS/PSA/09/2022 dated 7 April 2022, issued by the District Magistrate, Srinagar against the detainee is quashed. As a corollary, the respondents are directed to set the detainee at liberty forthwith provided he is not required in any other case. The detention record is to be returned to counsel for the respondents. (Vinod Chatterji Koul)
id_489	0	The Petitioner seeks bail in FIR No.60/2020 dated 25.02.2020 registered at PS Dayalpur for offences under Sections 186, 353, 332, 323, 147, 148, 149, 336, 427, 302 of the Indian Penal Code, 1860 (hereinafter, IPC) and Sections 3 and 4 of the Prevention of Damage to Public Property Act, 1984 (hereinafter, PDPP Act)., The FIR relates to the violence that took place in the National Capital Territory of Delhi in February 2020., The brief facts leading to the instant bail application are that a protest against the Citizenship (Amendment) Act, 2019 (hereinafter, CAA) had been taking place for one and a half months prior to the incident at Khajuri Square to Loni Circle on Wazirabad Road, Chand Bagh near 25 Futa Service Road by the Muslim community., It is stated in the FIR that the complainant, i.e., Constable Sunil Kumar, was on duty with the deceased Head Constable Ratan Lal and others, namely Giri Chand, Constable Mahavir, Constable Jitender, Head Constable Narender, Head Constable Brijesh, W/Head Constable Savitri, as well as Deputy Commissioner of Police Shahdara District Amit Kumar and his staff., It is stated that on 24 February 2020, at about 1:00 PM the protestors had mobilized near the Chand Bagh area and 25 Futa Road, and were moving towards the Main Wazirabad Road. When they assembled near Main Wazirabad Road, the complainant and other police officers present attempted to convince the protestors not to move towards the Main Wazirabad Road, however the protestors were carrying sticks, baseball sticks, iron rods and stones. Assistant Commissioner of Police Gokalpuri and Deputy Commissioner of Police Shahdara warned the protestors via loudspeaker that lack of adherence to legal warnings would necessitate strict action against the crowd. Some people amongst the crowd started pelting stones at the police officials and beat them as well as other passersby with the aforementioned weapons that had been hidden., The complainant received an injury on his right elbow and right hand due to a huge stone. It is further stated that the crowd even snatched tear‑gas balls and lathis from the police and started beating them with them. Assistant Commissioner of Police Gokalpuri, Head Constable Ratan Lal and Deputy Commissioner of Police Shahdara Amit Kumar were also beaten with sticks and stones, and as a result they fell down and suffered grievous head injuries., The FIR states that post the incident, the protestors fled and the injured were sent to a hospital, with the complainant receiving treatment at Panchsheel Hospital, Yamuna Vihar, Delhi., The complainant then states that he was informed that Head Constable Ratan Lal had succumbed to a bullet injury, and some other police officers as well as public persons had also suffered injuries. It is stated that the protestors had also set fire to the vehicle of Deputy Commissioner of Police Shahdara and private vehicles of police officers, and also damaged public and private property., It is stated that investigation is now completed and a chargesheet has been filed against the petitioner on 8 June 2020 wherein the petitioner has been added. The chargesheet states that there is sufficient material to proceed against the petitioner under Sections 201, 120‑B and 34 of the IPC, read with Sections 3 and 4 of the PDPP Act. Thereafter, supplementary chargesheets have been filed on 30 June 2020, 20 August 2020, 17 November 2020 and 30 December 2020., Mr. Dinesh Kumar Tiwari, learned counsel appearing for the petitioner, has submitted that the petitioner has been falsely implicated in the FIR and that there exists no evidence which can prove the connection of the petitioner to the incident beyond reasonable doubt. It is also submitted that the evidence is fabricated and therefore cannot be admissible and the petitioner cannot be convicted on the basis of the available material., It has further been submitted to the Delhi High Court by Mr. Tiwari that the petitioner has been in judicial custody since 29 March 2020. The Delhi High Court has been informed that the petitioner is 22 years of age and is the sole breadwinner of a family with aged parents., The learned counsel for the petitioner states that the investigation has been completed and a chargesheet has been filed, and therefore the custody of the petitioner is no longer required for the purpose of investigation. Moreover, it has been submitted that keeping the petitioner in custody with other hardened criminals will serve no fruitful purpose and will be injurious to the health of the petitioner., On the aspect of evidence, Mr. Tiwari has argued that neither is there any electronic evidence like CCTV footage or video clip against the petitioner in the instant case, but also that the exact call‑detail‑record location of the petitioner has not been established by the prosecution and is inconclusive as the petitioner is a resident of the area., Mr. Tiwari has brought the attention of the Delhi High Court to the bail order dated 16 February 2021 of this Hon'ble Court in Bail Application No. 3550/2020 wherein co‑accused Mohd. Danish has been released on bail, and has submitted that this bail order entitles the petitioner to be released on parity., It has been submitted that no public witnesses are present in the matter against the petitioner and that the petitioner has only been arrested on the basis of the disclosure statements of other co‑accused., Mr. Tiwari has contended before the Delhi High Court that no incriminating material has been recovered from the petitioner or at his instance. Furthermore, he has submitted that the petitioner has no criminal history or previous convictions. It has also been stated that the petitioner has no motive to commit a heinous offence., The learned counsel for the petitioner has argued that Article 21 of the Constitution of India states that no person shall be deprived of his life or personal liberty except according to procedure established by law, and this includes the right to live with dignity. Therefore, the continued incarceration of the petitioner would violate his liberty and deprive him of his personal freedom., Mr. Tiwari, the learned counsel for the petitioner, has stated before the Delhi High Court that the petitioner will not misuse the concession of liberty, will maintain good behaviour during the period of bail, and will appear before the trial court and cooperate in the expeditious disposal of the case. He concluded his submissions on the note that the rule is to allow bail and that bail should not be the punishment in itself as the basic principle of criminal law dictates that an accused shall be presumed innocent till proven guilty., Mr. Amit Prasad, learned Special Public Prosecutor for the State, has painstakingly taken the Delhi High Court through the videos pertaining to the topography of the area where the riots happened and the preparatory work that allegedly took place prior to the incident. Mr. Prasad brought to the attention of the Court three videos that had been found during the investigation which depict the scene of crime – Vishal Chaudhry Video (1 minute 48 seconds) shot from Gym Body Fit Garage, Skyride Video (1 minute 37 seconds) and Yamuna Vihar Video (40 seconds) – and has submitted that the three videos shed light on how the assault on the police personnel was pre‑meditated. The learned SPP has further taken the Court through all the available CCTV footage displaying timestamps and respective lanes wherein the accused have been caught on camera. He has further pointed out the timestamps which showcase the dislocation and deactivation of the CCTV cameras and has submitted that the same has been done in a synchronised and planned manner., Mr. Prasad has argued that the role of the accused could be discerned from the statements of Constable Gyan and Head Constable Tejveer who had stated that the petitioner was present along with other co‑accused near the divider on Main Wazirabad Road and had attacked the police officers. Further, the call‑detail‑record of the petitioner reveals that he was present at the scene of crime during the alleged incident., The learned Additional Solicitor General Shri S. V. Raju, opposing the instant bail application, has submitted that the instant case is regarding the brutal assault on police officials wherein Head Constable Ratan Lal succumbed to his injuries, and Deputy Commissioner of Police Shahdara Amit Sharma and Assistant Commissioner of Police Gokalpuri suffered grievous injuries along with more than fifty police officials also getting injured., It has been submitted that the death of Head Constable Ratan Lal was the first death in the North‑East Delhi riots, and that the trial court has been dealing with the riot cases since then. It has also been submitted that the trial court has been apprised of the matter and has already dismissed the bail application of the petitioner, and that the order of rejection of bail does not contain any legal infirmities., The learned ASG has iterated that on 23 February 2020, the protestors who were convened at Wazirabad Main Road, Chand Bagh, unauthorizedly came onto the road and blocked the same. He submitted that in response, the local police had issued a proclamation under Section 144 of the Criminal Procedure Code to bring law and order under control. He further submitted that the protestors held a meeting on the night of 23 February 2020 at Chand Bagh to finalise a plan for 24 February 2020 as the President of the United States, Donald Trump, was coming to New Delhi. This meeting was subsequently attended by several of the accused persons., The learned ASG has submitted that on the morning of 24 February 2020, CCTV cameras which had been installed by the Government of National Capital Territory of Delhi for security in the area were systematically disconnected or damaged or dislocated from 08:00:41 AM to 12:50:57 PM. He argued before the Delhi High Court that the protest at Chand Bagh continued despite the proclamation of Section 144 CrPC orders. As a consequence, police officials had been deployed for law and order arrangements. The learned ASG averred that between 12:30 PM and 1:00 PM, at the behest of the organisers of the protest, a crowd carrying various weapons such as dandas, lathis, baseball bats, iron rods and stones converged at the main Wazirabad Road, and refused to heed the orders of the senior officers and police force. The crowd soon got out of control and started pelting stones at the police officers and, resultantly, more than fifty police personnel suffered injuries and Head Constable Ratan Lal was shot dead. It was further submitted by the learned ASG that the protestors turned violent, burnt private and public vehicles, as well as other properties in the vicinity, including a petrol pump and a car showroom., It was then submitted by the learned ASG that absence of an accused from a video does not translate into absence of the accused from the scene of crime. He has stated that identification of an accused in videography was a Herculean task, and therefore, if an accused has been identified, that would be a positive point. The learned ASG relied upon Masalti and Ors. v. State of Uttar Pradesh, (1964) 8 SCR 133, and submitted that by way of application of Section 149 IPC, the petitioner would be deemed to be a member of the unlawful assembly and, therefore, would be equally and squarely liable for the crime committed., The learned ASG has also contended that the addition of the offence under Section 302 IPC meant that ordinarily bail should not be granted. He has argued that it was not a case of a simple offence; if it was a grievous offence which was specially punishable with death, then bail could not be granted. On the issue of the parameters of bail, the learned ASG has submitted that in Gurcharan Singh v. State (Delhi Administration), (1978) 1 SCC 118, the Supreme Court has reiterated that the principle underlying Section 437 is towards grant of bail except in cases where there appears to be reasonable grounds for believing that the accused is guilty of an offence punishable with death or imprisonment for life, and also when there are other valid reasons to justify refusal of bail. He has argued that the overriding considerations in granting bail are, inter alia, the nature and gravity of the circumstances in which the offence is committed. The learned ASG has submitted that in P. Chidambaram v. Directorate of Enforcement, (2020) 13 SCC 791, the Supreme Court held that in addition to the triple test or tripod test, gravity of the offence had to be considered while making a decision on grant of bail. Further, one of the circumstances to consider the gravity of offence would be the term of sentence that is prescribed for the offence which the accused is said to have committed. The learned ASG has argued that as the instant case pertains to the murder of a police officer and that Section 302 IPC has been invoked, the matter lies within the gravest of offences, and therefore, the accused cannot be entitled to bail., Mr. Raju, the learned ASG, has then contended that conspiracy had been established on 23 February 2020, and that the offence was pre‑planned. He has submitted that meetings were held one to two days prior to the alleged incident wherein the protestors were motivated to gather at the site of the alleged incident on 24 February 2020 in order to instigate violence, and therefore, there was a meeting of minds due to which Section 149 and Section 120‑B of the IPC were made out. Furthermore, secret codes had been used, and the petitioner was fully involved., It was further submitted that in his disclosure statement, the petitioner had stated that he, along with co‑accused Sameer @ Mendhak and other protestors, had pelted stones at the police personnel and had also assaulted them with rods, sticks etc. He had further allegedly chased the officials towards Yamuna Vihar after jumping the divider, and he himself got injured while returning by one of the stones that had been hurled by the protestors. It has been submitted that an audio clip was recovered from the mobile phone of the petitioner wherein he is having a conversation with co‑accused Sameer @ Mendhak about the riots, their active participation and the injuries that have been sustained by the police officers., It was also submitted by the learned ASG that there was only a small contingent of police officers present, and they were trying to protect themselves from the frontal attack by the crowd as they were heavily outnumbered. He argued that had it been a simple protest, the crowd would not have been required to come with sticks, weapons etc. Furthermore, if sticks and other weapons were to be utilised for self‑defence, then the damage and dislocation of CCTV cameras defeats the case because such an action would only lead to the inference that the accused wished to destroy the evidence or to ensure that the evidence did not surface., The Delhi High Court has heard the learned ASG S. V. Raju with Mr. Amit Prasad, learned SPP for the State, and Mr. Dinesh Kumar Tiwari, learned counsel for the petitioner. The Delhi High Court has also perused the material on record., A perusal of the chargesheet indicates that the petitioner is a resident of Chand Bagh and was a part of the protest against the Citizenship (Amendment) Act, 2019, and the National Register of Citizens. As per the chargesheet, the disclosure statement of the petitioner states that the petitioner, along with other protestors, had pelted stones at the police personnel and even assaulted them with rods, sticks etc. Further, according to the disclosure statement, he had chased the police officials towards Yamuna Vihar after jumping the divider, and while returning, he himself got injured by one of the stones hurled by the protestors., It is further stated in the chargesheet that an audio clip was recovered from the mobile phone of the petitioner wherein he is allegedly having a conversation with co‑accused Sameer @ Mendhak about the riots and the injuries sustained by the police officials; he is also using very instigating language., The chargesheet additionally states that the call‑detail‑record of the petitioner places him at the location of the scene of crime. Furthermore, it is stated that the identity of the petitioner was confirmed by the statement of Constable Gyan recorded on 25 March 2020 under Section 161 of the Criminal Procedure Code and he was also identified by Head Constable Tejveer in his statement under Section 161 CrPC on 31 March 2020. The statement of Constable Gyan under Section 161 CrPC reveals that the petitioner was present at the site of protest and, along with the other accused, pre‑meditated the attack on the police with various weapons. The statement also notes that he destroyed public and private property. Head Constable Tejveer’s statement reveals that the petitioner attacked the police personnel near the divider of Main Wazirabad Road., In the instant case, the issue which arises for consideration is whether when an offence of murder is committed by an unlawful assembly, each person in the unlawful assembly should be denied the benefit of bail, regardless of his role or the object of the assembly. Section 149 IPC reads as follows: 'Every member of unlawful assembly guilty of offence committed in prosecution of common object. If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.', The Supreme Court has consistently held that in order to convict an accused with the aid of Section 149, a clear finding needs to be given by the Court regarding the nature of the unlawful common object. Furthermore, if any such finding is absent or if there is no overt act on behalf of the accused, the mere fact that the accused was armed would not be sufficient to prove common object., In Kuldip Yadav and Ors. v. State of Bihar, (2011) 5 SCC 324, the Supreme Court categorically stated: 'It is not the intention of the legislature in enacting Section 149 to render every member of unlawful assembly liable to punishment for every offence committed by one or more of its members. In order to attract Section 149, it must be shown that the incriminating act was done to accomplish the common object of unlawful assembly and it must be within the knowledge of other members as one likely to be committed in prosecution of the common object.', In Sherey and Ors. v. State of Uttar Pradesh, (1991) Supp (2) SCC 437, the Supreme Court considered whether Section 149 of the IPC could be applied to hold an accused constructively liable on the basis of omnibus allegations made by witnesses and on the basis of their mere presence at the spot/scene of crime. The Court observed that all eye‑witnesses were present and named the appellants, but specific overt acts were attributed only to certain accused. The Court held that it is unsafe to convict all appellants on vague evidence and that only those consistently mentioned as having participated in the attack should be convicted., It is therefore noted that the applicability of Section 149 IPC, specifically read with Section 302, cannot be done on the basis of vague evidence and general allegations. When there is a crowd involved, at the juncture of grant or denial of bail, the Court must hesitate before concluding that every member of the unlawful assembly shares a common intention to accomplish the unlawful common object. There cannot be an umbrella assumption of guilt on behalf of every accused, and each decision must be taken based on careful consideration of the facts and circumstances., With regard to the submission that if there appears to be reasonable grounds that the accused has committed an offence punishable with death or life imprisonment, there is a bar imposed by Section 437(1) CrPC on granting bail, this Court states that the case of Gurcharan Singh also acknowledges that it is the Court which has the last say on whether reasonable grounds exist. Furthermore, there is no blanket bar on granting bail in such cases and the Court can exercise discretion as long as reasons are recorded. Additionally, in Prabhakar Tiwari v. State of Uttar Pradesh, (2020) SCC Online 75, the Supreme Court held that despite the alleged offence being grave and serious, and several criminal cases pending against the accused, these factors alone cannot be the basis for refusal of bail. The Supreme Court held that Section 439(1) CrPC confers special powers on the High Court or the Court of Session in respect of bail and there is no ban on granting bail to persons accused of an offence punishable with death or life imprisonment, though the Court must exercise judicial discretion considering the nature and gravity of the circumstances, the position of the accused, likelihood of fleeing, tampering with witnesses, etc., The petitioner was arrested on 29 March 2020 and has been in judicial custody since then. It has been seventeen months since the arrest of the petitioner. Bail jurisprudence attempts to bridge the gap between the personal liberty of an accused and ensuring social security remains intact. It is the intricate balance between securing the personal liberty of an individual and ensuring that this liberty does not lead to an eventual disturbance of public order. It is egregious and against the principles enshrined in our Constitution to allow an accused to remain languishing behind bars during the pendency of the trial. Therefore, the Delhi High Court, while deciding an application for grant of bail, must traverse this intricate path very carefully and consider multiple factors before arriving at a reasoned order., In Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496, the Supreme Court laid down the parameters for granting or refusing bail which are: (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding if released on bail; (v) character, behavior, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger of justice being thwarted by grant of bail., In Mahipal v. Rajesh Kumar, (2020) 2 SCC 118, the Supreme Court observed that the determination of whether a case is fit for grant of bail involves balancing numerous factors, among which the nature of the offence, the severity of the punishment and a prima facie view of the involvement of the accused are important. No strict formula exists for courts to assess an application for bail. At the stage of assessing whether a case is fit for grant of bail, the court is not required to enter into a detailed analysis of the evidence on record to establish beyond reasonable doubt the commission of the crime by the accused. That is a matter of trial. However, the court is required to examine whether there is a prima facie or reasonable ground to believe that the accused had committed the offence and, on a balance of the considerations, the continued custody of the accused subserves the purpose of the criminal justice system. Where bail has been granted by a lower court, an appellate court must be slow and guided by the principles set out for the exercise of the power to set aside bail.
id_489	1	It is the Constitutional duty of the Delhi High Court to ensure that there is no arbitrary deprivation of personal liberty in the face of excess of State power. Bail is the rule and jail is the exception, and the Delhi High Court must exercise its jurisdiction to uphold the tenets of personal liberty, subject to rightful regulation of the same by validly enacted legislation. The Supreme Court of India has time and again held that courts need to be alive to both ends of the spectrum, i.e., the duty of the courts to ensure proper enforcement of criminal law, and the duty of the courts to ensure that the law does not become a tool for targeted harassment., The petitioner has been in custody for 17 months and was formally added by way of chargesheet dated 08.06.2020. A perusal of the material on record has revealed to the Delhi High Court that there is no electronic evidence which places the petitioner at the scene of crime during the time of the alleged incident. The call detail records in the instant case of the petitioner are inconclusive as the petitioner is a resident of the local area, i.e., Gali No. 1. Furthermore, the call detail record at 12:47:07 PM places the petitioner at Main Wazirabad Road; however, the definitiveness of the same will be revealed during trial and cannot form the basis for the continued incarceration of the petitioner., The Delhi High Court has also noted that the audio clip recovered from the mobile phone of the petitioner is inconclusive at this juncture as it fails to reveal whether it was the petitioner who was involved in the acts committed. The audio clips also do not indicate whether the petitioner was at the scene of crime, and therefore, they cannot form any basis for keeping the petitioner in prolonged incarceration. Further, this Delhi High Court is of the opinion that the petitioner cannot be kept in custody only on the basis of the disclosure statements. The veracity of the statements of Court Gyan and High Court Tejveer under Section 161 of the Criminal Procedure Code are also to be dealt with during the course of trial and cannot justify the petitioner remaining behind bars for a continued period of time., The fourth chargesheet has already been filed, and trial in the matter is likely to take a long time. This Delhi High Court is of the opinion that it would not be prudent to keep the petitioner behind bars for an undefined period of time at this stage. The petitioner has roots in society, and therefore, there is no danger of him absconding and fleeing., In view of the facts and circumstances of the case, without commenting on the merits of the matter, this Delhi High Court is of the opinion that the petitioner cannot be made to languish behind bars for a longer period of time, and that the veracity of the allegations levelled against him can be tested during trial., Accordingly, this Delhi High Court is inclined to grant bail to the petitioner in First Information Report No. 60/2020 dated 25.02.2020 registered at Police Station Dayalpur for offences under Sections 186, 353, 332, 323, 147, 148, 149, 336, 427, 302 of the Indian Penal Code, read with Sections 3 and 4 of the Prevention of Damage to Public Property Act, on the following conditions: a) The petitioner shall furnish a personal bond in the sum of Rs 35,000/- with one surety of the like amount to the satisfaction of the Trial Court/Duty Magistrate. b) The petitioner shall not leave the National Capital Territory of Delhi without prior permission of this Delhi High Court. c) The petitioner shall report to the concerned Police Station every Monday and Wednesday at 10:30 AM and should be released after completing the formalities within half an hour. d) The petitioner is directed to give all his mobile numbers to the Investigating Officer and keep them operational at all times. e) The petitioner has given his address in the memo of parties as House No. E-283, Gali No. 1, Chand Bagh, Delhi. The petitioner is directed to continue to reside at the same address, and in case there is any change in the address, the petitioner is directed to intimate the same to the Investigating Officer. f) The petitioner shall not, directly or indirectly, tamper with evidence or try to influence the witnesses. g) Violation of any of these conditions will result in the cancellation of the bail granted to the petitioner., It is made clear that the observations made in this order are only for the purpose of grant of bail and cannot be taken into consideration during the trial., Accordingly, the bail application is disposed of along with any pending applications, if any.
id_49	0	Appellant: Sanni Singh. Respondent: State of Uttar Pradesh and Another. Counsel for Appellant: Manish Gupta, Vinay Kumar. Counsel for Respondent: G.A., Arvind Kumar, Rahul Chaudhary. Honorable Justice Rahul Chaturvedi, J. Heard Sri Manish Gupta, learned counsel for the appellant, Sri M.S. Arya, Advocate connected virtually from Delhi assisted by Sri Arvind Kumar, learned counsel for the complainant as well as Sri Satendra Tiwari, learned Additional Government Advocate for the State and perused the record., This criminal appeal under Section 14A(2) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 has been filed for setting aside the impugned order dated 15 September 2021 passed by the learned Special Judge, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, Additional Session Judge, Gorakhpur in Bail Application No. 4107 of 2021, arising out of Case Crime No. 291 of 2021, under Sections 302, 307, 506, 120B of the Indian Penal Code and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, Police Station Gola, District Gorakhpur. Pleadings between the parties have been exchanged and the matter is ripe for final submissions., The FIR lodged by Anis Kumar for the incident dated 24 July 2021 was filed on 25 July 2021 at 2.45 hours against as many as seventeen named accused persons and four persons on two motorcycles. The informant's younger brother was a Gram Panchayat Adhikari posted at Block Urwa, Gorakhpur and belongs to a Scheduled Caste community. During his training period he developed an intimacy with his classmate Ms. Dipti Mishra. Despite objections of family members and friends they performed a registered marriage and started residing as husband and wife. This marriage raised objections of Dipti Mishra's family who allegedly conspired to eliminate Anis Kumar. On 24 July 2021, when the deceased went to market around 9‑10 a.m. with his uncle Devi Dayal, he was ambushed by two motorcycle riders who assaulted Anis Kumar with a sharp‑edged weapon and seriously injured Devi Dayal. Anis Kumar was taken to hospital where he was declared dead. The FIR states that the informant firmly believes that the named accused persons hatched the conspiracy and eliminated his brother. The informant further alleged that Abhishek Tiwari, Vivek Tiwari and Sanni Singh (the applicant), on account of previous enmity, actively participated in the offence., Counsel for the applicant submitted that out of the seventeen named accused persons, Nalin Mishra, Manikant Mishra, Ajay Mishra, Abhishek Tiwari and Vivek Tiwari were admitted on bail by the coordinate Bench of this Court on 17 December 2021 after allowing their respective appeals. It is contended that the applicant's case stands on a much better footing than that of the close relatives of Dipti Mishra who were said to have been involved in this case., It is further submitted that a casual remark in the last lines of the FIR has been made that, on account of previous animosity, the name of the applicant has been purposely dragged. The applicant has no connection or motive in committing the crime. The applicant Sanni Singh does not have an emotional bond with Dipti Mishra nor is he a family member. The theory floated by the prosecution that this is a case of honour killing is therefore inapplicable. Counsel for the informant relied heavily upon the judgment of the Honorable Apex Court in Rama Devi Nayar v. State of Rajasthan reported in 2020 SCC (Cr) 185, wherein the appellant was held to be the main conspirator in an honour killing. The present case does not involve any such relationship., The 161 Criminal Procedure Code statement of Dipti Mishra, widow of Anis Kumar, annexed as Annexure No. CA‑2, contains no allegation against the applicant. Counsel for the applicant further states that co‑accused persons Nalin Mishra (Criminal Appeal No. 4075 of 2021), Abhinav Mishra (Criminal Appeal No. 4032 of 2021), Manikant Mishra (Criminal Appeal No. 3349 of 2020), Abhishek Tiwari (Criminal Appeal No. 4875 of 2021) and Ajay Mishra (Criminal Appeal No. 3888 of 2021) were allowed bail by the coordinate Bench of this Court by order dated 17 December 2021., It is contended that the applicant is an outsider having no concern whatsoever in the commission of the offence. Neither from the applicant nor from his premises has any incriminating material been recovered. The applicant has been languishing in jail since 27 July 2021 and deserves to be released on bail. The submission made by counsel for the appellant is prima facie appealing and convincing for the purpose of bail., Counsel for the complainant submits that Dipti Mishra, who is the widow of the deceased, faces threats from the named accused persons and that, of the seventeen named accused, only eleven have been apprehended by the police. The complainant argues that if the applicant is released on bail, the bailed‑out accused may make the life of Dipti Mishra and other family members miserable., The Superintendent of Police, Gorakhpur will provide necessary security to the family members of the deceased and, after periodical assessment, will deploy requisite security during trial and take stringent action against any person who attempts to take the law into his own hands. Keeping in view the nature of the offence, the evidence, the complicity of the accused, the submissions of the learned counsel for the parties, the manner and mode of the offence and the period of detention already undergone, and without expressing any opinion on the merits of the case, I am of the view that the appellant has made out a case for bail., Let the appellant Sanni Singh be released on bail in the aforesaid case crime number upon furnishing a personal bond and two heavy sureties each in the like amount to the satisfaction of the court, with the conditions imposed in the interest of justice. Any wilful violation of the above conditions by the appellant shall have serious repercussions on his bail. Accordingly, the appeal succeeds and the order is allowed. The impugned order dated 15 September 2021 passed by the learned Special Judge, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, Additional Session Judge, Gorakhpur, is hereby set aside.
id_491	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. Dr Dhananjaya Y Chandrachud, Chief Justice of India. This judgment consists of the following sections: D. Requirement of security clearance for renewal of permission; E.1 Principles of natural justice: purpose and content; E.2 Constitutionalizing principles of natural justice: the impact of Maneka; E.3 Standard to test reasonableness of procedure: proportionality as ...; G. Whether the infringement of MBL's right to a fair hearing is justified; G.1 Natural justice and national security: decisions in Digi and Ex‑Armymen; (II) Closed Material Procedure and Special Advocates; I. Proportionality standard to test public interest immunity claims; J. Public interest immunity or sealed cover: the less restrictive means; K. Substantive Challenge: the validity of the action of the Ministry of Information and Broadcasting in denying to renew., 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 first respondent. By a judgment dated 8 February 2022, a Single Judge dismissed the petitions. The writ appeal was dismissed by the Division Bench of the High Court by a judgment dated 2 March 2022. The High Court relied on material disclosed solely to the Court in a sealed cover by the second respondent, the Union Ministry of Home Affairs. The appellants instituted proceedings under Article 136 of the Constitution to challenge the correctness of the judgment of the Division Bench of the High Court., 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 inter alia to compliance with the terms and conditions set out in the Annexure to the letter. The Annexure prescribed the following conditions: (i) The Licensing Authority shall be empowered to impose such restrictions as may be necessary; (ii) The Licensing Authority shall have the power to revoke the licence on grounds of national security and public order; (iii) The Licensing Authority shall have the power to prohibit transmission of programmes considered prejudicial to friendly relations with foreign governments, public order, security of the state, communal harmony etc.; (iv) Licence should provide access facilities of all equipment and records/system to the Licensing Authority or its representative; (v) Licence should make available detailed information about equipment and its location; (vi) Licensing Authority shall be legally competent to take over the stations on the occurrence of public emergency or in the interest of public safety/order; (vii) Monitoring stations should be set up to facilitate prompt intervention for deterrent action against violations of technical parameters and provisions laid down in the legislation and licensing agreements; (viii) The applicant would make available to the Licensing Authority the detailed technical information about the equipment to be used., On the same day, the Ministry of Information and Broadcasting issued a registration certificate for downlinking of the Media One channel for a period of five years according to the provisions of the Policy Guidelines for Downlinking of Television Channels. The downlinking permission stipulated that, in addition to complying with the terms and conditions set out in the Annexure, the channel was required to comply with the Programme and Advertising Code prescribed under the Cable Television Networking (Regulation) Act, 1995 and the Rules framed under it., 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. Madhyamam Broadcasting Limited withdrew 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 a period of ten years., On 12 February 2016, the Ministry of Information and Broadcasting issued a show cause notice to Madhyamam Broadcasting Limited 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 for TV channels, that the licence can be revoked on grounds of national security and public order, that the Ministry of Home Affairs had recently conveyed denial of the security clearance, and that due to withdrawal of security clearance the company would cease to fulfil the basic prerequisite for grant of permission. The notice called upon Madhyamam Broadcasting Limited to show cause within fifteen days why its permission should not be revoked or cancelled., Seven days after the show cause notice was issued, Madhyamam Broadcasting Limited applied to renew the licence to downlink the channel Media One since the licence initially granted for five years had expired. By an order dated 11 July 2019, the Ministry of Information and Broadcasting renewed the downlinking permission of Media One for a further period of five years. By an order dated 11 September 2019, the Ministry of Information and Broadcasting cancelled the uplinking and downlinking permission to Media One Life. Although the show cause notice was issued to both Media One Life and Media One, only the permission granted to the former was revoked., On 3 May 2021, Madhyamam Broadcasting Limited applied to renew the downlinking and uplinking permissions granted to operate Media One, which were 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 proposed to revoke the permission granted to operate Media One. The notice specified that security clearance is a pre‑condition for the grant of permission, that the Ministry of Home Affairs had denied security clearance in the past to the proposals of Madhyamam Broadcasting Limited and may be considered denied in the present case, and that due to denial of security clearance the company had ceased to fulfil the eligibility requirement for renewal of permission., On 19 January 2022, Madhyamam Broadcasting Limited replied to the show cause notice, submitting that it did not receive any intimation of the denial of security clearance, that the grounds for denial were not intimated, that Madhyamam Broadcasting Limited and Media One Channel had not indulged in any activity warranting denial, that a similar show cause notice had been served on 12 February 2016 and after a reply the licence was renewed on 11 July 2019, that the actions of the Ministry of Information and Broadcasting were arbitrary and violative of Article 14 of the Constitution, and that the denial of renewal violated Madhyamam Broadcasting Limited's right to freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution., By an order dated 31 January 2022, the Ministry of Information and Broadcasting revoked the permission that was granted to uplink and downlink Media One because of the denial of a security clearance. The order stated that the permission granted on 30 September 2011 was valid up to 29 September 2021, that clause 9.2 of the Uplinking Guidelines stipulates that security clearance to the company and its directors is a prerequisite condition for grant of permission, that Madhyamam Broadcasting Limited had applied on 3 May 2021 for renewal of permission for a period of ten years, that the Ministry of Home Affairs had denied the security clearance for renewal, and that consequently the permission was revoked with immediate effect and the name of the channel was removed from the list of permitted channels., Madhyamam Broadcasting Limited initiated proceedings under Article 226 of the Constitution before the High Court of Kerala to challenge the Ministry of Information and Broadcasting's order revoking the uplinking and downlinking permission granted to Media One. 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 Madhyamam Broadcasting Limited an opportunity to be heard before revoking the permission; and (iii) a declaration that there are no circumstances warranting a denial of security clearance or the revocation of the licence since Madhyamam Broadcasting Limited has not violated any law or indulged in anti‑national activity., The Assistant Solicitor General of India filed a statement before the High Court submitting that security clearance was denied on the basis of intelligence inputs, which are sensitive and secret in nature, and that the Ministry of Home Affairs could not disclose reasons for the denial as a matter of policy and in the interest of national security., By a judgment dated 8 February 2022, the Single Judge of the High Court of Kerala dismissed the writ petition. The Single Judge held that: (i) Paragraph 10.4 of the Uplinking Guidelines and paragraph 9.4 of the Downlinking Guidelines stipulate that when the application for renewal of permission is considered, the eligibility criteria of net worth and experience of top management will not apply, but other terms and conditions applicable to permission for uplinking are applicable to renewal, so security clearance is a factor to be considered at the time of renewal; (ii) 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 v. Union of India; and (iii) the files submitted by the Ministry of Home Affairs indicate that the Committee of Officers took note of inputs provided by intelligence agencies, found them serious and within security rating parameters, and advised not to renew the licence. The recommendations of the Committee of Officers were accepted by the Ministry of Home Affairs and are fortified by supporting material., The Division Bench of the High Court directed that the files submitted by the Ministry of Home Affairs be placed before it. On perusing the files, the Division Bench held that: (i) 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 the permission granted to Madhyamam Broadcasting Limited to operate the channel were renewed; (ii) while the State cannot ordinarily interfere with the freedom of the press, the scope of judicial review in matters involving national security is limited; (iii) the Union of India may decline to provide information when constitutional considerations exist, such as security of the State, or when there is a specific immunity under a specific statute, and it must justify the claim on affidavit in Court, relying on M.L. Sharma v. Union of India; and (iv) the State has justified the plea of non‑disclosure since the Ministry of Home Affairs indicated that denial of security clearance is based on intelligence inputs that are sensitive and secret, and therefore, as a matter of policy and in the interest of national security, it does not disclose reasons for denial., The appellants initiated proceedings under Article 136 of the Constitution against the judgment of the Division Bench of the High Court. By an order dated 15 March 2022, this Court, after perusing the relevant files that were submitted before 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 by which the permission to operate the Media One channel was revoked. The Court ordered that, pending further orders, the order revoking the security clearance shall remain stayed and the petitioners shall be permitted to continue operating the news and current affairs TV channel Media One on the same basis as before the revocation. The Court also kept open the issue of whether the contents of the files should be disclosed to the appellants for effective pursuit of their challenge., Mr Dushyant Dave, Senior Counsel appearing on behalf of Madhyamam Broadcasting Limited made the following submissions: (i) The order issued by the Ministry of Information and Broadcasting revoking the permission to uplink and downlink Media One is unconstitutional because security clearance is a pre‑condition only for the grant of permission, not for renewal; under Clause 10.2 of the Uplinking Guidelines, renewal is subject only to the channel not having been found guilty of violating the Programme and Advertising Code on five occasions or more; (ii) security clearance cannot be denied on grounds that exceed the reasonable restrictions on freedom of the press prescribed under Article 19(2) of the Constitution, read with Section 4(6) of the Cable Television Networks (Regulations) Act, 1995; (iii) Paragraphs 5.2 and 5.9 of the Uplinking Guidelines prescribe limited grounds of public interest and national security to suspend the permission for a specified period; (iv) the 2011 permission presupposes that security clearance required under Paragraphs 9.3 and 9.4 of the Uplinking Guidelines was granted and was not withdrawn between 2011 and 2022, so renewal should have been automatic; (v) Madhyamam Broadcasting Limited was not provided access to the material submitted by the Ministry of Information and Broadcasting before the High Court, and the sealed‑cover filing negated the principles of natural justice, violating the principle of an open court and fairness to parties., Mr Huzefa A Ahmadi, Senior Counsel appearing on behalf of the editor, senior web designer and senior cameraman of Media One made the following submissions: (i) The order issued by the Ministry of Information and Broadcasting violates Madhyamam Broadcasting Limited's freedom protected under Article 19(1)(a) of the Constitution; the action is not protected by reasonable restrictions prescribed in Article 19(2); the show cause notice and the order revoking the permission are bereft of reasons and details; the Ministry of Home Affairs, citing sensitivity and policy, does not disclose reasons for denial; the Division Bench acknowledged that the gravity, impact, nature and depth of the issue are not discernible from the files, and that many details are unavailable; (ii) the doctrine of proportionality requires the least restrictive means for restraining fundamental rights, and revocation was not the least restrictive means; (iii) the High Court's reliance on material placed in a sealed cover violates the principles of natural justice., Mr Mukul Rohatgi, Senior Counsel appearing for the Kerala Union of Working Journalists submitted that freedom of the press protected under Article 19(1)(a) is a precious freedom and must not be infringed callously. He contended that although the conditions for renewal of permission are different from those for grant of permission, the High Court applied the same standard for both. Regarding the disclosure of material in a sealed cover, he suggested that if there was sensitive information, the respondent could have redacted it before allowing the appellants to peruse the file., Mr K M Nataraj, Additional Solicitor General appearing on behalf of the respondents submitted that paragraphs 9.2 and 10 of the Uplinking Guidelines demonstrate that security clearance is a pre‑condition for renewal of licence; that the Ministry of Information and Broadcasting was justified in revoking the permission granted to Media One because the Ministry of Home Affairs denied security clearance; and that the principles of natural justice are excluded when issues of national security are involved, relying on Ex‑Armymen and Digi Cable., The following issues arise in determining the validity of the order issued by the Ministry of Information and Broadcasting refusing to renew the uplinking and downlinking permission granted to Madhyamam Broadcasting Limited to operate the television channel Media One: (i) Whether security clearance is one of the conditions required to be fulfilled for renewal of permission under the Uplinking and Downlinking Guidelines; (ii) Whether denying renewal of licence and the course of action adopted by the Division Bench of the High Court violated the appellants' procedural guarantees under the Constitution; and (iii) Whether the order denying renewal of licence is an arbitrary restriction on Madhyamam Broadcasting Limited's right to freedom of speech and expression under Article 19(1)(a) of the Constitution., On 3 May 2021, Madhyamam Broadcasting Limited submitted an application for renewal of uplinking and downlinking permission to the Ministry of Information and Broadcasting. The application stated that the permissions would expire on 30 September 2021 and 29 September 2021 respectively. In the statement filed by the Assistant Solicitor General before the Kerala High Court, it was submitted that the application for renewal was forwarded by the Ministry of Information and Broadcasting and that, by a letter dated 29 December 2021, the Ministry of Home Affairs denied security clearance to Madhyamam Broadcasting Limited for renewal. The Ministry of Information and Broadcasting issued a show cause notice stating that Madhyamam Broadcasting Limited had ceased to fulfil the eligibility requirement for renewal due to denial of security clearance and asked it to show cause why the permission should not be revoked or cancelled. By its letter dated 31 January 2022, the Ministry of Information and Broadcasting ordered that the permission granted to Madhyamam Broadcasting Limited to uplink and downlink Media One be revoked. The Division Bench of the High Court noted the inconsistency between the phraseology used in the renewal application and the revocation order, observing that both the notice and the order refer to revocation of licence because security clearance was denied., Paragraph 10 of the Uplinking Guidelines stipulates the conditions for renewal of existing permissions. According to paragraph 10, renewal of permission is to be considered for ten years, subject to the condition that the channel should not have been found guilty of violating the terms and conditions of permission, including any violation of the Programme and Advertising Code on five or more occasions. Paragraph 10.4 provides that the terms and conditions applicable at the time when permission is granted would be applicable at the time of renewal, subject to modifications made by the terms of the permission., Paragraph 9 of the Downlinking Guidelines, which stipulates the procedure for renewal of existing permissions for downlinking, is similar in terms to paragraph 10 of the Uplinking Guidelines. The provision indicates that renewal of an existing permission is not a vested right. Paragraph 10.2 provides that renewal will be considered subject to the conditions spelled out thereafter. The conditions for renewal of uplinking and downlinking are: (i) the channel should not have violated the Programme and Advertisement Code on five or more occasions; (ii) the channel should not have been found guilty of violating the terms and conditions of permission; and (iii) the channel must fulfil all the terms and conditions that apply to the grant of permission as modified by the letter of permission., Media One has not been found guilty of violating the Programme and Advertisement Code on five or more occasions.
id_491	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 a.m. 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. Condition 2 and 3: requirement of security clearance for renewal of licence., 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 provision is extracted below: 9.1 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 wherever prescribed, payable at par at New Delhi, in favour of the Pay and Accounts Officer, Ministry of Information and Broadcasting, Shastri Bhawan, New Delhi. 9.2 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 wherever 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 undertake an exercise to determine if the conditions of eligibility prescribed in Paragraphs 2 and 3 are fulfilled. If the conditions are fulfilled, the application is sent to the Ministry of Home Affairs for security clearance. Thus, Paragraph 9.2 prescribes a condition in addition to those stipulated in Paragraphs 2 and 3 of the Uplinking Guidelines., The heading of Paragraph 9, namely, procedure for obtaining permission, does not detract from the prescription of a substantive condition. 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., Further, Paragraph 10.4 of the Uplinking Guidelines stipulates that the conditions as modified by the permission letter are applicable at the time of renewal of the licence. 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. Though in view of 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. Both non‑renewal of licence and revocation of licence are restrictions on the right to freedom of the press. The intent 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 stipulations 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. Accordingly, 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., Judicial Review on procedural grounds. 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 that are guaranteed under Articles 19 and 21 of the Constitution., The principle of natural justice that is 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., There are three important considerations that have to be answered in this context: (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. This case presents the Supreme Court of India with an opportunity to clarify and lay down the law on the applicability of the principles of natural justice when issues of national security are involved. The Court must choose between either permitting a complete abrogation of the principles of natural justice or attempting to balance the principles of natural justice with concerns of national security., Principles of natural justice: purpose and content. The principles of natural justice were read into the law and conduct of judicial and administrative proceedings with an aim of securing fairness. These principles seek to realise four momentous purposes: Fair outcome – procedural rules are established to prevent bias and unfairness in the process of decision making. A decision reached after following the procedural rules is expected to be fair and reliable. 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., In Chief Constable of North Wales Police v. Evans, the appellant was a probationary member of the North Wales Police Force. He was removed from the force without the allegations against him being put forth. The House of Lords set aside the decision on the ground that non‑disclosure of allegations violated the principles of natural justice. The Court cautioned that there was an extreme danger in proceeding without putting forth the allegations because the veracity of the allegations could never be tested. The Court quoted the appellant’s affidavit describing how a hippy‑type lifestyle allegation was never put to the respondent and would have been found untrue if examined, illustrating the incorrect statement relied upon due to failure of natural justice., Inherent value in fair procedure: Fair procedure is not only a means to the end of achieving a fair outcome but is an end in itself. Fair procedure induces equality in the proceedings and the proceedings appear to be fair. In Kanda v. Government of Malaya, an Inspector of Police challenged his dismissal on the ground that the disciplinary proceedings were not conducted in accordance with the principles of natural justice. The Court held that the likelihood of bias test cannot be solely used to determine violation of natural justice. It is sufficient if non‑disclosure would lead to a possibility of bias and prejudice. The House of Lords held that non‑disclosure of information is per se violative of the principles of fair trial., Legitimacy of the decision and decision‑making authority: When a decision is formed following the principles of natural justice, there is a perception that the decision is accurate and just. It preserves the integrity of the system as the decisions, in addition to being fair, also appear to be fair. The perception of the general public that decisions appear to be fair is important in building public confidence in institutions, which aids in securing the legitimacy of the courts and other decision‑making bodies., Dignity of individuals: Non‑outcome values, that is, values that are independent of the accuracy and soundness of the verdict, are intrinsically important. The principles of fairness express the elementary idea that to be a person, rather than a thing, is at least to be consulted about what is done with one. D.J. Galligan explains that insisting on fair treatment reflects a renewed understanding of the relationship between citizens and the State. TRS Allan argues that when procedures allow genuine participation and contestation of ideas, a citizen is treated with the respect and dignity deserved in a society governed by the rule of law., Indian courts have been significantly influenced by the courts in England on the interpretation, application, and content of natural justice, primarily because the principles are derived from common law and are grounded in the rule of law. Jurisprudential developments across other common law jurisdictions relating to the principles of natural justice usually spill over to Indian jurisdiction., The duty to act fairly that is derived from common law is not exhaustively defined in a set of concrete principles. Courts, both in India and abroad, have demonstrated considerable flexibility in the application of the principles of natural justice by fine‑tuning them to situational variations. The Supreme Court of India has observed earlier that the concept of natural justice cannot be put into a straitjacket formula and that it is incapable of a precise definition. Courts have undertaken an ends‑based reasoning to test if the action violates the common law principle of natural justice. The party alleging a violation of a principle of natural justice has to prove that the administrative action violated the principles of natural justice and that non‑compliance prejudiced the party., Constitutionalising principles of natural justice: the impact of Maneka Gandhi. Two jurisprudential developments on the interpretation of Part III of the Constitution must be noticed to understand the impact of constitutionalising the principles of natural justice. First, the meaning of the expression ‘procedure established by law’ in Article 21 has been expanded to include procedural due process. Second, 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 appellant contended that ‘procedure established by law’ in Article 21 includes the principles of natural justice. While the majority rejected this contention, Justice Fazl Ali, in his celebrated dissent, held that the expression must include procedural due process, which comprises issuance of a notice, an opportunity to be heard, an impartial tribunal, and an orderly course of procedure. Justice Fazl Ali’s opinion was followed by the Supreme Court of India in Maneka Gandhi. In Maneka Gandhi, it was held that the life and liberty of a person cannot be restricted by any procedure that is established by law but only by a procedure that is just, fair, and reasonable. The appellant challenged the order of the Regional Passport Officer impounding her passport. The Government of India declined to disclose its reasons, relying on Section 10(5) of the Passports Act 1967, which permits non‑disclosure where it is not in the interests of sovereignty, security, friendly relations, or the general public. The Supreme 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 Supreme Court held that principles of natural justice infuse reasonableness into the procedure. However, the Court noted that the principles of natural justice are not set‑in‑stone and are by their very nature modifiable. Therefore, violation of every conception of natural justice will not necessarily render the procedure unreasonable and violative of Articles 21 and 14. The test to determine if non‑compliance of 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 judgment of the Supreme Court in Maneka Gandhi spearheaded two doctrinal shifts on procedural fairness because of the constitutionalising of natural justice. Firstly, procedural fairness is no longer viewed merely as a means to secure a just outcome but as a requirement that holds inherent value in itself. Consequently, courts are now precluded from assessing procedural infringements solely based on whether the procedure would have prejudiced the outcome of the case. Secondly, natural justice principles breathe reasonableness into the procedure. While situational modifications are permissible, the core of natural justice, which infuses procedural reasonableness, cannot be abrogated., Standard to test reasonableness of procedure: proportionality as reasonableness. Once the applicant proves that the procedure followed was not reasonable with reference to the core of the principles 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 courts must decide the standard of review to test the reasonableness of the limitation. Rights are not absolute in a constitutional democracy. The jurisprudence of the Supreme Court is that rights can be limited but such limitation must be justified on the ground of reasonableness. Although only Article 19 expressly prescribes that the limitation must be reasonable, after the judgments in RC Cooper and Maneka Gandhi it is conclusive that the thread of reasonableness runs through the entire chapter on fundamental rights guiding the exercise of procedural and substantive limitations. The Constitution does not prescribe a standard of review. The Supreme Court has identified various standards to test reasonableness: rationality, Wednesbury unreasonableness, proportionality, and strict scrutiny. Reasonableness is a normative concept identified by evaluation of relevant considerations and balancing them according to their weight. It is value‑oriented rather than purpose‑oriented, which is why courts are more comfortable identifying that an action is unreasonable rather than that it is reasonable. Consequently, courts have adopted a higher standard of scrutiny in the form of proportionality to assess the reasonableness of limitations on fundamental rights.
id_491	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. Om Kumar (n 16); Teri Oat Estates (P) Ltd. v. Union Territory, Chandigarh, (2004) 2 SCC 130. The judgments of the Supreme Court of India in Justice K.S. Puttaswamy (9J) (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 of security clearance. 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 against them. (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 by the Ministry of Home Affairs 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; the material is only removed from the affected party’s docket. The party defending its actions, which most often is the State, and the adjudicating authority rely on the material while making arguments and while 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. We are of the opinion that the Supreme Court of India 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 the Court prioritised the process (and the effect of the process) as opposed to the outcome (and the objective of 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 any 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 undertaking the exercise of assessing the validity of such a claim, must view violation claims from a holistic procedural perspective. This is for the simple reason that the principles of natural justice are mouldable. The requirement of procedural fairness does not impose a uniform, unvarying standard to be applied irrespective of the context, facts, and circumstances. Adjudicatory bodies must be provided sufficient flexibility in deciding procedural requirements. As observed above, a non‑compliance of every facet and component 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 while making an argument from a component‑facet perspective. 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 it 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. It places a check on arbitrary exercise of power. Lord Denning observed that in giving reasons lies 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 is not limited to the final finding on law or facts but extends to the reasons to arrive at the finding. A limitation on the right to appeal necessarily means that the scope of judicial review is restricted. 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 are in furtherance of the right to information and the constitutional goal of open government. Secrecy broods partiality, corruption and other vices that are antithetical to a governance model that is 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 press which is protected under Article 19(1)(a) has effectively been trumped without providing them with an effective and reasonable avenue to challenge the decision. This infringes upon the core of a 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 other 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 their 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. As opposed to this method, when relevant material is disclosed in a sealed cover, there are two injuries that are perpetuated. First, the documents are not available to the affected party. Second, the documents are relied upon by the opposite party (which is 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 does not have any 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, and places the judgment beyond the reach of challenge. The affected party would be unable to contradict errors, identify omissions, challenge the credibility of informants or refute false allegations. The right to seek judicial review which has now been 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, J, speaking for the Court commented on the procedural infirmities which the procedure of sealed cover perpetuates: 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, which would with reasonable probability influence the decision of the authority, must be disclosed. A one‑sided submission of material which forms the subject matter of adjudication to the exclusion of the other party causes a serious violation of natural justice. In the present case, this has resulted in grave prejudice to officers whose careers are directly affected as a consequence. The non‑disclosure of relevant material to the affected party and its disclosure in a sealed cover to the adjudicating authority (in this case the Adjudicating Forum Tribunal) sets a dangerous precedent. The disclosure of relevant material to the adjudicating authority in a sealed cover makes the process of adjudication vague and opaque. The disclosure in a sealed cover perpetuates two problems. Firstly, it denies the aggrieved party their legal right to effectively challenge an order since the adjudication of issues has proceeded on the basis of unshared material provided in a sealed cover. The adjudicating authority while relying on material furnished in the sealed cover arrives at a finding which is then effectively placed beyond the reach of challenge. Secondly, it perpetuates a culture of opaqueness and secrecy. It bestows absolute power in the hands of the adjudicating authority. It also tilts the balance of power in a litigation in favour of a dominant party which has control over information. Most often than not this is the State. A judicial order accompanied by reasons is the hallmark of the justice system. It espouses the rule of law. However, the sealed cover practice places the process by which the decision is arrived beyond scrutiny. The sealed cover procedure affects the functioning of the justice delivery system both at an individual case‑to‑case level and at an institutional level., 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 indicate that the Committee of Officers took note of the inputs provided by intelligence agencies and found that the inputs are of a serious nature and fall under the security rating parameters. The Single Judge observed that in those circumstances, the Committee of Officers advised not to renew the licence. The Single Judge does not provide any clarity on the nature of the inputs that were of a serious nature. Additionally, there is no mention of the security rating parameters that have been relied on. 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 though the nature and gravity of the issue is not discernible from the files, there are clear indications that the security of the State and public order would be impacted if the permission granted to MBL to operate the channel is renewed. The Division Bench has also not disclosed 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 of clearance was justified despite observing that the nature and gravity of the issue is not discernible. The sealed cover procedure followed by the Single Judge and the Division Bench have necessarily rendered the appellants’ right to writ remedies, which has been 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, which is the sole ground for denying the permission to renew the licence, and the disclosure of relevant material only to the Court in a sealed cover has 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 that was 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 of the 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) in the interest of national security. It has thus been submitted that the principles of natural justice stand abrogated because: firstly, the decision is based on intelligence inputs which are sensitive in nature from security and intelligence agencies; and secondly, these inputs are in the interest of national security. The Union of India has 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 has to 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. Rule 92 of the Aircraft Rules 1937 stipulates that the business shall be provided subject to security clearance. The appellant was informed that security clearance was withdrawn on grounds of national interest. The appellant initiated proceedings under Article 226 of the Constitution before the High Court of Patna. The writ petition was disposed with a direction that the appellant should be furnished materials that were relied on by the Central Government for withdrawal of security clearance. However, the Central Government passed an order that the documents in the file were classified as secret and could not be shared with the appellant. The documents were placed in a sealed cover before the Single Judge of the High Court. On a perusal of the documents, the Single Judge directed that a gist of the allegations be disclosed. The Division Bench of the High Court allowed the appeal and held that the materials could not be disclosed to the appellant in national interest. The appellant 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, then the party cannot insist on the strict observance of the principles of natural justice. It was further observed that it is open to the Court to satisfy itself that the claim of the government that national security is involved is indeed 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 is of the opinion that issues of national security are involved. However, it was held that the Court may call for records to satisfy itself that issues of national security are involved. Further, the judgment in Council of Civil Service Unions v. Minister of Civil Service was relied on to hold that strict observance of the principles of natural justice may not be possible when national security is involved. The Court noted that this was not a decision on the factual considerations because the security clearance that was granted to the appellant had already expired. The relevant observation is extracted below: “What is in the interest of national security is not a question of law. It is a matter of policy. It is not for the Court to decide whether something is in the interest of the State or not. It should be left to the executive… Thus, in a situation of national security, a party cannot insist for the strict observance of the principles of natural justice. In such cases, it is the duty of the Court to read into and provide for statutory exclusion, if not expressly provided in the rules governing the field. Depending on the facts of the particular case, it will however be open to the Court to satisfy itself whether there were justifiable facts, and in that regard, the Court is entitled to call for the files and see whether it is a case where the interest of national security is involved. Once the State is of the stand that the issue involves national security, the Court shall not disclose the reasons to the affected party.”, In Digi Cable Network (supra), the permission that was granted to the appellant for operating as a Multi‑Systems Operator in the Digital Addressable System was cancelled on the ground that the Ministry of Home Affairs denied security clearance to the appellant. The High Court rejected the challenge to the order of cancellation. The Additional Solicitor General filed a copy of the reasons for the denial of security clearance in a sealed cover before the Supreme Court of India. A two‑Judge Bench of the Supreme Court of India dismissed the appeal by relying on the judgment in Ex‑Armymen’s Protection Services (supra), holding that the appellant was not entitled to claim any prior notice before the order cancelling the permission was passed, and that the principles of natural justice were not violated in this case in the light of the law laid down by the Supreme Court of India in Ex‑Armymen’s Protection Services (P) Ltd., The observation in Ex‑Armymen’s Protection Services (supra) 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 (5J) v. Union of India while deciding on the constitutional validity of Section 33 of the Aadhaar Act., It must be noted that the Supreme Court of India in Ex‑Armymen’s Protection Services (supra) referred to a series of judgments from the Courts in 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. The evidentiary principle laid down by the Courts in the United Kingdom needs to be elucidated in order to understand the scope of the observations in Ex‑Armymen’s Protection Services (supra). In The Zamora (supra), a ship that was captured contained contraband in the cargo. The cargo belonged to the Austrian Government, and was imported into Sweden. The ship was chartered to a German, who was acting as an agent for the Austrian Government, and the Swedish consignees were merely playing a part in the transaction. The right to requisition exists in international law, that is, the right to requisition vessels pending a decision on whether it must be condemned or released. One of the limitations to the right to requisition is that vessels must be urgently required in the defence of the realm or for matters involving national security. It was in this context that the Privy Council made the widely cited observation that: “With regard to the first of these limitations, their Lordships are of the opinion that the judge ought, as a rule, to treat the statement on oath of the proper officer of the Crown to the effect that the vessel or goods which is sought to requisition are urgently required for use in connection with the defence of the realm, the prosecution of the war, or other matters involving national security, as conclusive of the fact. Those who are responsible for the national security must be the sole judges of what the national security requires. It would be obviously undesirable that such matters should be made the subject of evidence in a court of law or otherwise discussed in public.” However, the Court put the affidavit that was filed by the Director of Army Contracts claiming exception to the right to requisition on the grounds of national security to the test of reason. It was observed that there was no satisfactory evidence that such a right was exercisable: “In their Lordships’ opinion the order appealed from was wrong, not because, as contended by the appellants, there is by international law no right at all to requisition ships or goods in the custody of the Court, but because the judge has before him no satisfactory evidence that such a right was exercisable. The affidavit of the Director of Army Contracts, following the words of Order XXIX, merely states that it is desired on behalf of His Majesty to requisition the copper in question. It does not state that the copper is urgently required for national purposes. Further, the affidavit of Sven Hoglund, which is unanswered, so far from showing that there was any real case to be tried, suggests a case for immediate release.”, In Council of Civil Service Unions (supra), the Minister of Civil Service released an instruction that employees of the Government Communications Headquarters cannot be a part of trade unions. This decision was challenged on the ground that the employees and the trade unions were not consulted before the instruction was issued. It was submitted that it was a well‑established practice for the trade unions to be consulted before conditions of service are altered. The Government Communications Headquarters is a branch of the Foreign and Commonwealth Office which ensures the security of the United Kingdom military, and provides intelligence signals for the Government. The respondent defended its action on the ground that because prior consultation would involve a real risk that it would occasion the very kind of disruption at GCHQ which was a threat to national security and which it was intended to avoid. The House of Lords observed that generally the decision of whether the requirements of national security outweigh the duty of fairness is for the Government and not the courts to decide. However, this observation was qualified. It was held that the Government is under an obligation to produce evidence that the decision was based on the grounds of national security which warranted the departure from the rule of fairness if the decision is successfully challenged on the ground that it was arrived by an unfair process. The question is one of evidence. The decision on whether the requirements of national security outweigh the duty of fairness in any particular case is for the Government and not for the courts; the Government alone has access to the necessary information, and in any event the judicial process is unsuitable for reaching decisions on national security. But if the decision is successfully challenged, on the ground that it has been reached by a process which is unfair, then the Government is under an obligation to produce evidence that the decision was in fact based on grounds of national security. Authority for both these points is found in The Zamora [1916] 2 A.C. 77. On a perusal of the evidence on record, the Court was satisfied that the departure was justified because it involved national security concerns. Lord Scarman, in his opinion, observed that the observations in The Zamora (supra) were not indicative of an abdication of judicial function but were an indication that evidence was required by the Court. In this context, it was observed that it has to be established by evidence that the interest of national security arises in judicial proceedings: “My Lords, I conclude, therefore, that where a question as to the interest of national security arises in judicial proceedings the court has to act on evidence. In some cases a judge or jury is required by law to be satisfied that the interest is proved to exist: in others, the interest is a factor to be considered in the review of the exercise of an executive discretionary power. Once the factual basis is established by evidence so that the court is satisfied that the interest of national security is a relevant factor to be considered in the determination of the case, the court will accept the opinion of the Crown or its responsible officer as to what is required to meet it, unless it is possible to show that the opinion was one which no reasonable minister advising the Crown could in the circumstances reasonably have held. There is no abdication of the judicial function, but there is a common sense limitation recognised by the judges as to what is justiciable: and the limitation is entirely consistent with the general development of the modern case law of judicial review.”
id_491	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, 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 organisation. The Secretary of State also added that his deportation from the United Kingdom would be conducive to the 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 civil standard of 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 Supreme Court of India allowed the appeal against the judgment of the Commission. The appeal against the judgment of the Supreme Court of India was dismissed by the Supreme Court of India., Lord Slynn of Hadley observed 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, it is fair that the civil standard of proof is applied. When the Secretary of State decides that a person must be deported for the public good, he is entitled to have precautionary and preventive principles, and 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, although his decision is open to review on the above two grounds. It was held in Council of Civil Service Unions 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 Court that the decision is based on the grounds of national security., Lord Hoffman observed that the Commission cannot differ from the opinion of the Secretary of State on the meaning of national security. 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, it was held that the decision on the validity of deportation is not surrendered 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 may differ from the Home Secretary’s evaluation only where the factual basis is lacking, and it may reject the Home Secretary’s opinion if it is one which no reasonable minister could have held. The Commission also reviews issues that do not lie within the exclusive province of the executive, such as whether deportation would infringe rights under article 3 of the Convention because of a substantial risk of torture or inhuman treatment., 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 Courts have to assess if the departure was justified, requiring the State to first satisfy that national security is involved and then that, on the facts, the requirements of national security outweigh the duty of fairness; 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, but they must review the State’s assessment to the extent of determining whether it has proved through cogent material that the actions of the aggrieved person fall within the principles established., Having held that concerns of national security do not permit an absolute abrogation of the principles of natural justice, the restriction on procedural guarantees must be assessed for reasonableness by applying the proportionality standard laid down by the Supreme Court of India in Modern Dental. The measure restricting a right must have a legitimate goal, must be a suitable means for furthering this goal, must be the least restrictive and equally effective means, and must not have a disproportionate impact on the right holder., The legitimate goal stage requires the State to prove that confidentiality and national security are legitimate aims and that the purposes of confidentiality and national security are served by non‑disclosure. The Constitution of India does not contain a general limitation clause, but provisions such as Article 19 and Article 25 allow reasonable restrictions for purposes including national security. Public interest, as explained by Aharon Barak, must reflect notions of justice and tolerance shared by society, and the Court must be cautious not to cross the thin line between adjudication and policy making. National security is one of the grounds that can be used to reasonably restrict rights under Article 19, and informational privacy and confidentiality have been recognised as values by the Supreme Court of India in Justice K.S. Puttaswamy and the Right to Information Act, 2005., The State must prove that the material it seeks to keep confidential is necessary for national security. The Ministry of Home Affairs (MHA) has claimed that reports from investigative agencies are secret in nature, but the Supreme Court of India has held that the State must specifically plead and prove on affidavit that disclosure would injure national security. The Court does not adopt a hands‑off approach; it requires the State to justify the claim with cogent material. National security has no fixed definition, and the Court must assess whether there is sufficient material to conclude that non‑disclosure is in the interest of national security, applying a reasonable‑prudent‑person standard., In the matter of Media One Broadcasting Ltd (MBL), the Intelligence Bureau (IB) reported adverse remarks linking MBL to Jamaat‑e‑Islami and its publication Madhyamam Daily, which it said propagated an ideology opposed to secularism, democracy and socialism. The IB also noted that MBL’s funding included investments from cadres and sympathisers of Jamaat‑e‑Islami, and that its programmes were critical of the Indian judiciary, security forces and foreign policy. The Ministry of Home Affairs considered these remarks but initially did not deny security clearance. Subsequent reports in 2014 and 2015 reiterated concerns about propaganda of Jamaat‑e‑Islami ideology, portrayal of security agencies in a negative light, and funding sources. The Committee of Officers (CoO) recommended denial of security clearance for new proposals, citing the adverse inputs and the Ministry of Home Affairs policy guidelines on national security. Although the Ministry of Information and Broadcasting had granted permission to uplink and downlink Media One Life, the MHA later denied security clearance for the new proposals, citing the same security concerns., The Supreme Court of India must now assess whether, on the facts, there is sufficient material to conclude that the denial of security clearance is in furtherance of the interests of confidentiality and national security as contended by the State. The Court will examine whether the material presented establishes a factual basis for the executive’s opinion, whether a reasonable minister could have arrived at the same decision, and whether the State’s claim satisfies the proportionality test, balancing the legitimate goal of national security against the duty of fairness owed to the applicants.
id_491	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 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 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 proposals for renewal of security clearance in 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 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 this 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 interest 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 in A 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 lesser 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 affects 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. For this purpose, the court shall 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 in the course of the proceedings 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 the 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. However, the special advocate would be precluded from discussing the evidence with 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 proceeding 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…”., 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 Supreme Court of India 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 further.
id_491	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., The divergence was one of principle. 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. It was held that the disclosure of information aids the party in the proceedings but beyond that the disclosure also serves the purpose of administration of justice. On the extent of scrutiny by the Supreme Court of India, Justice Subba Rao observed that the Supreme Court of India has the power to disallow a claim of privilege. For this purpose, the Supreme Court of India has to determine if the public interest in disclosure outweighs the public interest in non‑disclosure. It was observed that the Supreme Court of India 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 (supra) that the Supreme Court of India does not have the power to inspect documents for which the claim of privilege is made. It was held that it would be difficult to determine the effect of the disclosure on public interest without inspecting the document. The learned Judge classified such documents as those belonging to noxious classes and others. It was held that if the documents belong to noxious classes (such as national security), it would per se infringe on public interest. For other documents that do not belong to noxious classes, the Supreme Court of India 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. Few would question the necessity of the rule to exclude that which would cause serious prejudice to the State. When a question of national security is involved, the Supreme Court of India may not be the proper forum to weigh the matter and that is the reason why a minister's certificate is taken as conclusive. Those who are responsible for the national security must be the sole judges of what national security requires. As the Executive is solely responsible for national security including foreign relations, no other organ could judge so well of such matters. Therefore, documents in relation to these matters might fall into a class which per se might require protection., The power reserved to the Supreme Court of India is a power to order production even though public interest is to some extent prejudicially affected. This amounts to a recognition that more than one aspect of public interest will have to be surveyed. The interests of Government for which the minister speaks do not exhaust the whole public interest. Another aspect of that interest is seen in the need for impartial administration of justice. It seems reasonable to assume that a court is better qualified than the minister to measure the importance of the public interest in the case before it. The Supreme Court of India has to make an assessment of the relative claims of these different aspects of public interest. While there are overwhelming arguments for giving to the Executive the power to determine what matters may prejudice public security, those arguments give no sanction to giving the executive an exclusive power to determine what matters may affect public interest. Once considerations of national security are left out, there are few matters of public interest which cannot safely be discussed in public. The administration itself knows of many classes of security documents ranging from those merely reserved for official use to those which can be seen only by a handful of ministers or officials bound by oath of secrecy., 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. In this case, the Union of India claimed immunity against the disclosure of the correspondence between the Law Minister, the Chief Justice of the Delhi High Court and the Chief Justice of India. It was argued that the documents sought to be disclosed belong to a class that is immune from disclosure, and thus the Supreme Court of India ought to allow the claim for non‑disclosure irrespective of its contents. Justice Bhagwati, whose view five other judges agreed to, rejected the claim for nondisclosure. Justice Bhagwati observed that claim of class immunity is not absolute: The executive cannot by merely invoking the scriptural formula of class immunity defeat the cause of justice by withholding a document which is 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 in respect of a document, whatever be the ground on which the immunity is claimed and whatever be the nature of the document, must stand scrutiny of the Supreme Court of India with reference to one and only one test, namely, what does public interest require disclosure or non‑disclosure. The doctrine of class immunity is therefore no longer impregnable; it does not any more deny judicial scrutiny; it is no more a mantra to which the Supreme Court of India pays obeisance. Whenever class immunity is claimed in respect of a document, the Supreme Court of India has to weigh in the scales the one aspect of public interest which requires that the document should not be disclosed against the other that the Supreme Court of India in performing its functions should not be denied access to relevant documents and decide which way the balance lies. And this exercise has to be performed in the context of the democratic ideal of an open Government., Justice Bhagwati further observed that the non‑appointment of a Judge for an additional term, which was under challenge in this case, could only be challenged on the ground that there was no full and effective consultation between the three constitutional functionaries, or that the decision was mala fide. Hence, the correspondence that is sought is the only documentary evidence that would aid in establishing the claim. On the other hand, the non‑disclosure would have the effect of ensuring the dismissal of the writ petition. Moreover, it was held that other than the impact of non‑disclosure on the applicant's case, it would also affect the wider constitutional principles of independence of the judiciary if the appointment process is insulated from public view. Further, when the transfer of a High Court Judge is challenged, the burden to prove that the transfer was not mala fide is on the Union of India. It was observed that the Union of India cannot seek to discharge such a heavy burden by merely filing an affidavit for non‑disclosure. Justice Bhagwati rejected the claim for non‑disclosure by observing that the Union of India has been unable to prove its claim that the disclosure of the correspondence must be injurious to public interest., The view taken by Justice Mathew in Raj Narain and Justice Subba Rao in Sodhi Sukhdev Singh was partially adopted by Justice Bhagwati, writing for the majority in SP Gupta and was further developed upon. The principles elucidated in the judgment are summarised below: (i) Open government is one of the crucial components of a democratic form of government. Disclosure of information is advantageous to the affected party in the proceedings. In addition, it also furthers public interest in access to information and open government. The conflict which Sections 123 and 162 seek to redress is not between public interest and private interest but between two conflicting conceptions of public interest; (ii) The majority opinion in Sodhi Sukhdev Singh perpetuates two inconsistencies. Firstly, it would be difficult to determine if a document relates to affairs of the state without inspecting it. The Supreme Court of India determines the effect of its disclosure on public interest only after inspection. This conclusion is apparent since Sodhi Sukhdev Singh has already held that only documents which affect public interest can be regarded as documents relating to state affairs; and secondly, the Supreme Court of India and not the head of the department determines if the disclosure of the information would affect public interest. On an objection raised by the head of the department, the Supreme Court of India conducts an exercise to determine if the document relates to affairs of the State by assessing the effect of disclosure on public interest. After the Supreme Court of India undertakes this exercise, it would be futile for the head of the department to again decide if the disclosure would be injurious to public interest; (iii) The burden of establishing the claim for immunity is on the person making the claim; (iv) 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 the disclosure would be injurious to public interest. The Supreme Court of India may inspect the document if it doubts the claim of the State and is unable to satisfy itself on a perusal of the affidavit. This power of inspection of the Supreme Court of India is not excluded by the operation of Section 162 of the Evidence Act; (v) Protection from disclosure must not be granted to documents merely because disclosure would lead to political criticism. The right to access information cannot be limited due to fear of criticism of actions of the government in a democratic society premised on open government; (vi) Disclosure cannot be denied per se merely because the documents belong to a noxious class. The Supreme Court of India must still conduct a balancing exercise. Class immunity is not absolute or inviolable. It is not a rule of law to be applied mechanically in all cases; (vii) The Supreme Court of India must determine if: (a) the disclosure of the document would in effect be against public interest (the effect test), and (b) if so, 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); and (viii) While undertaking the balancing test, the Supreme Court of India should consider the following lines of enquiry: (a) On facts: Whether the non‑disclosure would injure the interest of the party of the case. Injury due to non‑disclosure must be determined on the basis of the nature of the proceedings in which the disclosure is sought, the relevance of the document, the degree of likelihood that the document will be of importance to the litigation, and whether allowing the claim of non‑disclosure would render the issue nonjusticiable; and (b) On principle: Whether non‑disclosure would affect a constitutional principle other than administration of justice., We think that 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. This is necessary because the law on public interest immunity that was developed in India in SP Gupta heavily relied on the jurisprudence emanating from other common law countries. In fact, Chief Justice Ray records in paragraph 41 of the Constitution Bench judgment in Raj Narain that the foundation of the law behind Section 123 and Section 162 of the Evidence Act is the same as in English law., The account of this subject in the United Kingdom began with the decision of the House of Lords in Duncan v. Cammell Laird. The House of Lords in this case gave precedence to form over substance while assessing a public interest immunity claim for non‑disclosure. Lord Simon framed two issues: (i) the form in which an objection to disclosure has to be made; and (ii) if the objection is made in a 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 cannot examine the documents while determining the validity of the claim because it would violate the first principle of justice that the Judge should have no dealings on the matter in hand with one of the litigants save in the presence of and to the equal knowledge of the other. Thus, the House of Lords did not frame the issue as a conflict between conceptions of public interest but that of private interest and public interest. The House of Lords established two principles for the application of public interest immunity: that the interest of a litigant must give way to the secrecy of the government, and the Minister has the sole power to decide if the document ought to be withheld., 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 it is public interest in the administration of justice that is injured due to non‑disclosure of documents. The House of Lords established three principles of seminal importance. Firstly, the power to decide if evidence has to be withheld from the court resides with the court and not the executive. Secondly, the court while exercising this power must balance the potential harm to the public interest due to disclosure with the court's inability to administer justice. The Court while determining the latter harm must assess the effect of non‑disclosure on ascertaining the true facts and on the wider principle of public confidence in the court system. Thirdly, the court is entitled to inspect, in private, the material on which immunity is claimed. On scrutinising the material, the court has to determine if non‑disclosure is necessary due to public interest, and not merely advantageous to the functioning of public service. Lord Hudson held that the Court in its scrutiny must discard the generalities of classes and must weigh the injuries to the public of a denial of justice on the one side and, on the other, a revelation of governmental documents which were never intended to be made public and which might be inhibited by an unlikely possibility of disclosure. The conflict of the claims of public interest must be determined based on the importance of the documents sought to be withheld in the case before the court (a question of outcome), and whether the non‑disclosure would result in a complete or partial denial of justice (a question of process and outcome)., In Reg v. Chief Constable, West Midlands, Ex p. Wiley, Lord Woolf speaking for the House of Lords observed that while determining the balance on the scale, the Court should also enquire if the interest in disclosure could be effectuated through other alternate means: It may be possible to provide any necessary information without producing the actual document. It may be possible to disclose a part of the document on a restricted basis. There is usually a spectrum of action which can be taken if the parties are sensible which will mean that any prejudice due to non‑disclosure is reduced to the 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. In this case, an Ethiopian national who was a former resident of the United Kingdom was held by the authorities of the United States in a detention facility in Cuba where he was alleged to have been treated inhumanly. He sought the disclosure of the information in the possession of the United Kingdom Government which may have supported his defence that the confessions he made while in detention were inadmissible. The Court held that the Security Service of the United Kingdom had facilitated the wrongdoing. In the course of the judgment, the reports by the United States Government to the United Kingdom security and intelligence services were summarised in seven paragraphs. These seven paragraphs were sought to be redacted by the Court by claiming public interest immunity. It was contended that the United States Government would reevaluate its intelligence sharing relationship with the United Kingdom if the paragraphs were published, which would in turn prejudice the national security of the United Kingdom. The Court applied a four‑pronged test to decide the claim of whether the paragraphs had to be redacted: (i) Is there a public interest in bringing the redacted paragraphs into the public domain? (ii) Will the disclosure cause serious harm to an important public interest, and if so which interest? (iii) Can the injury to the public interest in disclosure be prevented by other methods of limited disclosure? (iv) If the alternatives are insufficient, where does the balance of public interest lie? While answering the first test, the Court identified the impact of disclosure on public confidence in the judiciary to the principles of public hearing and reasoned judgement; and the role of information in furthering public debate which promotes a healthy democracy. In the specific context of the case, it was observed that the disclosure would further public discourse on torture and inhuman treatment. Due weightage was given to the affidavit filed. The Court scrutinised the reasons in the affidavit and concluded that the assessment of public injury was made in good faith. This conclusion was arrived at based on the public statements that were made by members at the highest level of the United States Government. Applying the facts to the alternate means test, the court observed that the paragraphs that were sought to be redacted did not disclose all the information but the redacted portions of the information; and that it would not be possible to further redact the information without engendering national security and violating the constitutional principles of open justice. While answering this test, the court looked at whether the interest of both the litigant and the State could be secured by means other than the full disclosure of information. While applying the balancing test, the court held that the democratic principles which the disclosure of information serves can be protected by information that has already been placed in the public forum., Judicial decisions 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 example of the application of this principle is the Reynolds privilege. Reynolds privilege is an evidentiary principle where the successful assertion of the privilege will remove the privileged evidence from litigation. The test propounded in Reynolds is if there is reasonable danger that compulsion of evidence will expose matters which, in the interest of national security, should not be divulged. The privileged evidence is excluded from the case which may incidentally also result in the dismissal of the claims. Unlike the standard in the United Kingdom, even the most compelling necessity in disclosure cannot overcome the claim of privilege if the court is satisfied that state secrets are at stake. Ordinarily, the evidence is excluded unlike a Totten bar where the issue is declared non‑justiciable, if the information relates to a class of protected evidence. However, in some cases, the application of privilege may require dismissal of the action and at this point, the Reynolds privilege converges with the Totten bar., The US Court of Appeals for the Ninth Circuit in Binyam Mohamed v. Jeppesen Dataplan observed that in three circumstances, the termination of the case is justified on the application of Reynolds privilege: (i) if the plaintiff cannot prove their case prima facie; (ii) if the plaintiff prima facie proves their case but if the privilege deprives the defendant of information that would provide the defendant a valid defence, then the court may grant a summary judgment to the defendant; and (iii) even if the claims might be theoretically established without relying on privileged evidence, it may be impossible to proceed since the privileged evidence is inseparable from the non‑privileged evidence. The standard of scrutiny followed by the courts in the United States is different from the United Kingdom on three basic principles: firstly, the standard established in Reynolds privilege is to identify if the information relates to protected classes; secondly, the court does not conduct the exercise of balancing the claims of disclosure and non‑disclosure. If the information relates to the protected class, the claim is allowed irrespective of the effect of non‑disclosure on the case and broader constitutional principles; and thirdly, the burden of proof is on the affected party to prove its case with non‑privileged evidence and not on the State to prove the necessity of non‑disclosure., Similar to the Courts in the United Kingdom, the Canadian jurisprudence on nondisclosure of information has shifted away from class scrutiny towards the scrutiny of individual documents. The consistent view of the Canadian Courts has been that the documents may be withheld only for the proper functioning of the executive branch and not to facilitate its improper conduct. Section 38 of the Canada Evidence Act 1985 stipulates the conditions for disclosure of information that is sought to be protected. The Court undertakes the following analysis to determine the validity of the claim of non‑disclosure filed by the Attorney General of Canada: (i) The relevancy test: Whether the information sought to be disclosed is relevant to the case. The burden of proof to prove relevancy of the information is on the party claiming disclosure (ii) The injury test: Whether the disclosure would be injurious to international relations, national defence or national security. The burden of proving injury due to disclosure is on the party opposing disclosure. The Court must assess if the executive's claim of injury has a factual basis. The court at this stage must consider the nature of the information, and the nature of the injury that is sought to be protected; (a) The Court should order disclosure if the State is unable to discharge its burden of proving to the court that the disclosure of information is injurious; (b) The court must undertake a balancing exercise if the State has proved that the disclosure would be injurious to national security; (iii) The alternative test: Whether there are alternatives to full disclosure that would protect a fair trial. (iv) The balancing test: The Court must determine if public interest in disclosure outweighs public interest in non‑disclosure. If it does, then the information must be disclosed. The Court must consider the following factors while undertaking the balancing exercise (a) The relative importance of the information in proving or defending the claim – that is, whether the information is necessary and crucial to the case; (b) the extent of injury that would be caused by the disclosure; (c) whether there are higher interests such as human rights issues, the right to make a full answer and defence in the criminal context at stake; (d) the importance of the open court principle; and (e) whether the redacted information is already known to the public., On the basis of the discussion on the public interest immunity claims for nondisclosure in the above‑mentioned jurisdictions, the following conclusions emerge: (i) The earlier position of law across all jurisdictions was that the courts should be deferential to the claim of the government that the disclosure of document(s) would be injurious to public interest. However, this position has undergone a sea‑change. It is now a settled position of law that courts possess the power to assess the validity of public interest immunity claims. The extent of such power is the bone of contention; (ii) The extent of scrutiny of public interest immunity claims by the courts hinges on four primary factors: (a) the identification of the injury that is caused due to non‑disclosure of information; (b) the extent of permissibility of class claims; (c) the burden of proof; and (d) evidentiary requirement to prove the claim; (iii) The identification of injury due to non‑disclosure and the assessment of the ground for non‑disclosure impacts the court's standard of assessment of the permissibility of class claims, the burden of proof and the evidentiary requirement. The standard of scrutiny is higher when the effect of non‑disclosure of information is not identified based on a narrow reference to the facts before the court but on its wider implications to democratic governance and rule of law; (iv) The courts in India, the United Kingdom, and Canada have held that the non‑disclosure of relevant material affects public interest, and the interests of the party seeking disclosure. The non‑disclosure of information injures the principle of open government which is one of the basic premises of a democracy. It denies the citizens an opportunity to initiate a discussion or question the functioning of the government. However, the Courts in the United States have been deferential to the claim of non‑disclosure, particularly on the ground of national security so much so that the court does not undertake a balancing exercise between the claims of disclosure and non‑disclosure. This is also because the courts in the United States give prominence to the objective of nondisclosure as opposed to its effect; (v) The standard laid down in India (in SP Gupta), United Kingdom, and Canada on the assessment of public interest immunity claims is similar to the extent that the impact of non‑disclosure on broader principles of constitutional governance is also considered; (vi) In Canada, the party seeking production is required to prove relevancy of the material sought after the public interest immunity claim is made by the state. The inclusion of the relevancy test as one of the tests imposes a heightened burden of proof than what is required otherwise. This is because the court is at that stage aware that the state is contesting the production on grounds of national security. Such claims are always met with a deferential tone by the courts. Secondly, and most importantly, this leads to an integration of the discovery stages and the objection stages. This integration is problematic because the considerations of the court at the discovery stage and objection stage are distinct. The party seeking discovery of documents must prima facie prove the relevance of the document to the proceedings. Once the party discharges this burden, and the court orders disclosure, the state may object to disclosure on the ground that it would injure public interest. At this stage, the burden is wholly on the state to prove injury to public interest. After the objection is raised, the relevancy of the disclosure must only be weighed at the balancing stage.
id_491	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. 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 that are in the possession or power of the other party. The Supreme Court of India may either refuse or adjourn the application if it is satisfied on the hearing 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. The provision uses the phrase fair disposal of the suit, which 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 is as follows: No. 5 (Title as in No. 1, supra) I, the above‑named defendant C. D., make oath and say as follows: 1. 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. 2. I object to produce the said documents set forth in the second part of the first schedule hereto [state grounds of objection]. 3. 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. 4. 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]. 5. 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 of account, 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. Order XI Rule 13 of the Code of Civil Procedure stipulates that the form of discovery may be changed if circumstances require. 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 at the stage of discovery. The burden of proof lies entirely on the party objecting to disclosure to prove injury to public interest and to justify the claim of public interest immunity. It is important 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., 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 Supreme Courts of India 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, it has any doubt whether the document relates to the affairs of the state. Therefore, the affidavit stipulating the reasons for non‑disclosure (along with the grounds) must be made in sufficient detail to enable the Supreme Courts of India to assess the claim of public interest immunity. This Court 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, and that the claim should always be made in the form of an affidavit., The substance of a public interest immunity claim is to seek an exception to the compliance of principles of natural justice. 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., 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: (i) 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 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 protected under Article 21 is reasonable; (ii) Secondly, although 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, the standard that was laid down resembled the sub‑facets of the proportionality standard, focusing on effect rather than purpose of non‑disclosure and balancing the effects of disclosure and non‑disclosure; (iii) The proportionality standard, in addition to introducing a culture of justification by prescribing a four‑step test, provides sufficient flexibility within each step for the Supreme Courts of India to apply the jurisprudence already evolved on the subject; (iv) Finally, public interest immunity is founded on common law doctrine, and the jurisprudence from the United Kingdom and Canada, which use the proportionality standard to assess the validity of a public interest immunity claim, has persuasive value in India., 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 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 restriction to disclosure is justified only if public interest is injured, thereby prescribing 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. No purpose of sufficient importance can override the right to a fair hearing; only an injury to public interest justifies 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 prescribed by 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: (i) Whether the disclosure of information would injure public interest (injury stage); (ii) Whether there is a less restrictive but equally effective alternative means by which the injury to public interest could be protected (necessity stage); and (iii) Whether the public interest in non‑disclosure outweighs the public interest in disclosure (balancing stage). In the balancing stage, as 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 must consider if non‑disclosure would render the issue non‑justiciable, the relative relevancy of the material—whether the material is crucial or necessary, or is the essence of the case against the claimant—and, on questions of principle, the impact of non‑disclosure on other constitutional rights such as freedom of the press., 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 this standard, the party opposing disclosure of documents bears the burden of proving the claim of public interest in non‑disclosure. The proportionality test prescribes a strict standard to test the reasonableness of an action. In contrast, the exercise of power by courts to secure material in a sealed cover has 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 this power, 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 of India Rules 2013 stipulates that a party to a proceeding in the Supreme Court of India 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, stating 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; or (iii) whose disclosure is not in public interest. Such documents can be disclosed only with the permission of the Supreme Court of India or the Chief Justice. Order XIII Rule 7 reads: '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 Court 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 Court.', The power of the Supreme Court of India to receive material relevant to a proceeding in a sealed cover is read from Order XII 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. Rule 7, while prescribing the power of the court 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 court to secure material in a sealed cover, but indicates that the court may exercise its power if the material is confidential or its disclosure would injure public interest. Public interest immunity claims also seek to address the same harms. The sealed cover procedure was not intended to replace public interest immunity proceedings, which constitute an established method for dealing with claims of 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 are conducted ex‑parte, with the counsel for the party claiming disclosure precluded from accessing a part of the record. However, a crucial difference is that in the sealed cover procedure, the court relies on the material disclosed in a sealed cover during the proceedings, whereas in public interest immunity the documents are completely removed from the proceedings and neither the parties nor the adjudicator can 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 compared to public interest immunity. The closed material procedure is similar to the sealed cover procedure in that material not disclosed to the applicant is used in the course of substantive hearings. The issue before the Court was whether it has the power to order a closed material procedure for the whole or 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 observed: 'The public interest immunity procedure respects the common law principles. 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.', 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 these considerations into account 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 Supreme Court of India 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. The Commission noted that although 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: '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.', 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. The State argued that the Court 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 if an open procedure is followed. The State contended that exclusion of relevant material after a public interest immunity exercise reduces the chances of the Court reaching a correct outcome. While the Court unanimously agreed that courts cannot substitute a public interest immunity procedure with a closed material procedure, the judges disagreed on whether a closed material procedure can be used in addition to, and not in alternative to, the public interest immunity procedure., Lord Dyson held that the Supreme Court of the United Kingdom does not have the power to direct a closed material procedure in addition to a public interest immunity claim because: (i) closed material procedure is the antithesis of public interest immunity procedure; there is no equality of arms in closed material procedure; (ii) the party in possession of the document possesses sole knowledge of whether the document would be beneficial in their case, and the claimant, who does not have access, would be at a disadvantage, making the procedure inherently unfair; and (iii) the courts should not be called upon to decide the relevance of a document to the case of the claimant and the defendant., Lord Kerr pointed out two additional problems with the State’s argument. He noted that the proposition that placing all evidence before the Judge is preferable to withholding potentially pivotal evidence is misleading. It cannot be assumed that the adjudicator would reach a fair result merely because the judge sees all the evidence; to be truly valuable, evidence must be capable of withstanding challenge. Evidence insulated from challenge may positively mislead. The right to know the case that one’s opponent makes and to have the opportunity to challenge it occupies a central place in the concept of a fair trial. Even an astute judge cannot compensate for the procedural disadvantage created by a closed procedure., Lord Mance (with whom Lord Hale agreed) and Lord Clarke held that the Supreme Court of the United Kingdom has the power to order a closed material procedure in certain circumstances after the public interest immunity claim is decided, but they disagreed on what those circumstances would be. In Lord Mance’s view, after the public interest immunity claim is allowed, the Court may order a closed material procedure if the material is in the defendant’s possession and the claimant consents to 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 introduce closed material proceedings as an additional step after the completion of public interest immunity proceedings. In a closed material procedure, similar to the sealed cover process, the Supreme Court of the United Kingdom relies on material that the claimant is not privy to while disposing of the proceedings. The closed material proceedings are sought to counterbalance the injustices caused by the conclusion of 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, the claim that a closed material procedure would provide a fairer outcome is premised on the assumption that the adjudicator is impartial. Beyond this assumption, it must be recognised that the Supreme Court of the United Kingdom could be misled by material that is not subject to inspection and examination, leading to an unfair judgment that would not be amenable to judicial review or public criticism on merits., While it cannot be denied that allowing a public interest immunity claim may cause some 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 were provided the option of requesting a closed material procedure after the conclusion of public interest immunity proceedings. The effect of public interest immunity proceedings of removing the evidence completely from the proceedings would persuade the State to make restricted claims of public interest immunity. Moreover, 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 are so closely intertwined with the cause of action. Although this argument holds merit at first glance, it does not hold when examined more closely. One of the relevant considerations for the Supreme Court of India in the balancing stage of adjudicating the public interest immunity claim is whether 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 due to non‑disclosure, may direct that the material should be disclosed. The purpose of the balancing prong is to weigh the conflicting claims and effects of such claims.
id_491	7	Even if the disclosure would conceivably injure public interest, the Supreme Court of India 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 outweighs 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 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 the 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 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 renewal of 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 freedom of the 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, 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 the press, and such restriction is constitutionally permissible only on the grounds stipulated in Article 19(2)., 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 Supreme Court of India, 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 the 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 because 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 submitted by the Intelligence Bureau on the alleged role and activities of JEI‑H states that the organisation was banned three times and all three bans were revoked. The organisation was banned last in 1992 under the Unlawful Activities (Prevention) Act 1947. This Court nullified the ban in 1994. Thus, when JEI‑H is not a banned organisation, it would be precarious for the State to contend that 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, but there is no evidence on record to link them to JEI‑H. Hence, 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 were accepted that the investment 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 Security Parameter No. 20 and No. 22 of the 2018 Guidelines used to assess security clearance proposals. Security Parameter No. 20 reads as \Involvement in religious proselytisation activities in India\, and Security Parameter 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 and the security parameters in No. 20 and No. 22. MBL cannot be said to be indulging in religious proselytisation merely for publishing reports on alleged discrimination against the Muslim community in India, nor infringing safety concerns by a mere reference to the shareholding pattern of MBL., 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 the Uplinking and Downlinking Guidelines; (ii) The challenge to the order of the Ministry of Information and Broadcasting and the judgment of the High Court on procedural grounds is allowed for the following reasons: (a) The principles of natural justice were constitutionalised by the judgment of this Court in Maneka Gandhi (supra). The effect is that the courts have recognised 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 non‑disclosure 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 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, namely 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 Supreme Court of India and the party seeking non‑disclosure of the material who are privy to the public interest immunity proceedings. The Supreme Court of India 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 Supreme Court of India 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 and 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 Supreme Court of India is required to pass a reasoned order for allowing or dismissing the claim in open court. We are cognizant of the objection that an order justifying the reasons for allowing the claim would inevitably disclose information on the very material that it seeks to protect. The Supreme Court of India, 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 the Supreme Court of India shall continue to operate until the renewal permissions are granted.
id_492	0	Mehul Choksi Applicant versus State of Maharashtra and Enforcement Directorate, Mumbai Respondents. Vijay Aggarwal, Advocate as well as Rahul Agarwal, Yash Agrawal, Abhiraj Rai, Jasmin Purani, Rohit Kaul, Yashwardhan Tiwari for the Applicant. A.R. Patil, Additional Public Prosecutor for Respondent No.1 – State. H.S. Venegavkar, Special Public Prosecutor as well as Aayush Kedia for Respondent No.2., Heard Vijay Aggarwal, learned counsel for the Applicant in both applications, A.R. Patil, learned Additional Public Prosecutor for Respondent No.1 – State, and H.S. Venegavkar, learned Special Public Prosecutor for Respondent No.2., The Applicant has challenged the order dated 30 August 2019 passed by the Special Judge, Bombay High Court, below Exhibit‑55 in Criminal Miscellaneous Application No. 997/2018. The application was filed by the Applicant before the Special Judge for directions to dismiss the application preferred under Section 4 of the Fugitive Economic Offenders Act, 2018 (hereinafter referred to as the FEO Act). The Special Judge directed that the matter would proceed for hearing of the arguments of counsel for the respondent before him and thereafter for rejoinder by the Special Public Prosecutor for the Applicant before him on the main application under Section 4 of the FEO Act., The brief background of the case is as follows: An FIR No. RC02(E)/2018 was registered with the Central Bureau of Investigation, Mumbai on 15 February 2018 under Section 120‑B read with Section 420 of the Indian Penal Code and under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. Pursuant to the FIR, the charge sheet was filed by the CBI before the Special Judge, Central Bureau of Investigation Court on 15 May 2018. The judge took cognizance against the Applicant and the other accused on 22 May 2018. The matter was registered as Special CBI Case No. 38/2018 and is pending before the Special Judge, Sessions Court, Greater Bombay. In pursuance to the FIR, the Enforcement Directorate registered Enforcement Case Information Report No. MBZO‑I/04/2018. The Enforcement Directorate filed a complaint under Section 45 of the Prevention of Money Laundering Act, 2002 before the Special Court under the Prevention of Money Laundering Act. That court took cognizance on 3 July 2018 against the Applicant and the other accused and the case is pending before that court at the stage of appearance., On 10 July 2018, the Enforcement Directorate filed an application under Section 4 read with Section 12 of the Fugitive Economic Offenders Ordinance, 2018 praying that the Applicant be declared a fugitive economic offender and that his properties be confiscated under the FEO Act., The Applicant filed an application before the Special Judge praying for dismissal of the application filed under the FEO Act on the ground that the application under Section 4 of the FEO Act was not accompanied by an affidavit as contemplated under Section 297 of the Code of Criminal Procedure. This application was filed below Exhibit‑55, which was rejected by the impugned order, and hence the present application is filed., Learned counsel Vijay Aggarwal appearing for the Applicant relied on various provisions of the Fugitive Economic Offenders Act, the Code of Criminal Procedure, 1973 and the Prevention of Money Laundering Act. He made the following submissions: Section 16 of the FEO Act puts the burden on the Director or the authorized person to establish that an individual is a fugitive economic offender or that the property in question was the proceeds of crime or any other property in which the individual, alleged to be an economic offender, has an interest. He submitted that the averments in the application are important and must be supported by a proper affidavit. In the present case, the verification clause below the application under Section 4 of the FEO Act is not proper. The requirements of Section 297 of the Code of Criminal Procedure and the provisions of the Criminal Manual issued by the Bombay High Court for the guidance of the criminal courts are not complied with, and hence the application was not maintainable., He argued that various averments in the application filed by the Deputy Director of the Enforcement Directorate were not true and could not be true. Therefore, it was necessary that the application be supported by an affidavit so that the person who filed the application was bound by the averments. As an example, he referred to paragraph 9.5 of the application, wherein it was mentioned that the Applicant had left the country under suspicious circumstances in the first week of January 2018, whereas the FIR was filed in February 2018 and the Applicant could not have imagined the future registration of the FIR. He also disputed the averment that the Applicant was the prime conspirator and mastermind behind the scam. He submitted that all these averments required a proper affidavit. He stated that the application is decided under the procedure mentioned in the FEO Act, which mainly depends on the averments in the application, and therefore filing the application in proper form was very important. Accordingly, the application must be supported by an affidavit adhering to the necessary ingredients of Section 297 of the Code of Criminal Procedure, which is mandatory as it uses the word “shall”. He submitted that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all, and other methods are necessarily forbidden. In support of this contention, he relied on a Division Bench judgment of this Court in the case of Euro School Education Trust versus Divisional Fee Regulatory Committee, Pune and others., He submitted that Sub‑section (2) of Section 4 of the Code of Criminal Procedure provides that all offences under any law, other than the Indian Penal Code, shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions of the Code of Criminal Procedure, subject to any enactment regulating the manner or place of investigation, inquiry, trial or other dealing with such offences. He emphasized Section 5 of the Code of Criminal Procedure, which states that nothing contained in the Code, in the absence of a specific provision to the contrary, shall affect any special or local law or any special form of procedure prescribed by any other law. He argued that unless there is an inconsistency between the FEO Act and the Code of Criminal Procedure, the provisions of the Code, particularly Section 297, are applicable. According to him, there was no inconsistency between the FEO Act and the Code of Criminal Procedure with respect to these provisions., His next submission was that under Section 21 of the FEO Act it is mentioned that the provisions of the Act shall have effect notwithstanding anything inconsistent therewith contained in any other law. Therefore, since there was no inconsistency with the Code of Criminal Procedure, this overriding effect did not affect the provisions of the Code. He submitted that Section 22 of the FEO Act clarifies that the provisions of the FEO Act shall be in addition to and not in derogation of any other law. Accordingly, the provisions of the FEO Act must be read in addition to the provisions of the Code of Criminal Procedure. He referred to Rule 3 of the Declaration of Fugitive Economic Offender (Forms and Manner of Filing Application) Rules, 2018 (FEO Rules). He submitted that this Rule must be read with Section 297 of the Code of Criminal Procedure. In support of this submission, he relied on the judgment of a Single Judge Bench of this Court in the case of M/s. Jaimin Jewellery Exports Private Limited and others versus the State of Maharashtra and another. In that judgment, reference was made to paragraphs 3 to 5 of Chapter VII of the Criminal Manual, holding that filing of an affidavit is not an empty formality. The mandate is that the affidavit should clearly state what portion of the statement is made on the declarant’s knowledge and what portion is made on his information and belief. When a particular portion is not within the declarant’s own knowledge but is based on information obtained from others or on documents, the declarant should disclose the source of the information or his belief. The verification clause in the present case did not disclose that the knowledge of the witness was based on records and did not disclose the source of information as required in paragraph 5(3) of Chapter VII of the Criminal Manual. A Single Judge of the High Court of Punjab and Haryana in the case of Santokh Singh and Sokha versus the State of Punjab took a similar view., Shri Aggarwal then criticised the impugned order. In that order, a reference was made to Jaimin’s case, but according to Shri Aggarwal, it was not given its due importance by the learned judge. The order held that the provisions of the FEO Act had overriding effect and therefore the application was to proceed for hearing. The learned judge further reasoned that even if the provisions of Section 297 of the Code of Criminal Procedure were taken into consideration, the deponent had stated that the contents were true and correct to the best of his knowledge derived from the records. Shri Aggarwal argued that these two reasons were contradictory. He submitted that the learned judge could either have held that Section 297 of the Code of Criminal Procedure is not applicable or could have held that the requirements of Section 297 were complied with, but the observations were contradictory and therefore the order was not based on sound reasoning. He further submitted that the learned judge did not deal with the provisions of the Criminal Manual although argument was advanced in that behalf and it was referred to in Jaimin’s case, and therefore the matter should be remanded back for passing a proper order. In support of this contention, he relied on the observations of the Honourable Supreme Court in the case of Jitendra Kumar versus State of Bihar. In paragraph 9 of that order, the Honourable Supreme Court observed that there was no reasoning on the submissions urged by the learned counsel for the parties and therefore the order passed by the High Court was not proper. He also relied on the judgment of a Division Bench of this Court in the case of Yogesh Waman Athavale versus Vikram Abasaheb Jadhav., His last submission was that this was an important issue which should have been decided as a preliminary issue because it goes to the root of the jurisdiction of the court to entertain such an application, as it was not supported by a proper affidavit. In support of this submission, he relied on the judgment of the Honourable Supreme Court dated 10 May 2019 in Criminal Appeal No. 8/2019, and on a decision dated 11 February 2020 in Contempt Petition No. 127/2019 (Bombay High Court) in the case of State through Central Bureau of Investigation, New Delhi versus Jitender Kumar Singh., In response to these submissions, Shri Venegavkar made the following submissions: He stated that the Fugitive Economic Offenders Act was enacted for a specific purpose, is mainly deterrent in nature and is not punitive. He submitted that the proceedings can be dropped if the Applicant appears before the court. Section 4 of the FEO Act lays down the form of application, which is elaborated in Rule 3 of the FEO Rules, and Section 11 prescribes the procedure. He argued that if there is no procedure prescribed in the special Act, then only the provisions of the Code of Criminal Procedure would apply, but when a special procedure is prescribed under the special Act, the procedure under the Code of Criminal Procedure cannot be applied. The special procedure, in particular Rule 13 of the FEO Rules, is complied with. His most important submission was that under the FEO Act or Rules there is no provision or requirement for filing an affidavit, and therefore the submissions made by counsel for the Applicant had no relevance. He submitted that Jaimin’s case actually supports Respondent No.2’s case. In that case, it was observed that the verification clause did not disclose that the knowledge of the concerned witness was based on records, whereas in the present case, the verification clause specifically mentions that the knowledge of the Applicant filing the application under Section 4 of the FEO Act was based on records. Thus, the observations in Jaimin’s case help Respondent No.2’s case that the procedure was properly followed., He submitted that Section 4 of the FEO Act refers to the reason to believe, for which the Director or the Deputy Director has to rely on the material in his possession that any individual is a fugitive economic offender. He can file an application in such form and manner as prescribed. In the present case, the application itself refers to the statement of reasons to believe that the Applicant was a fugitive economic offender, as specifically mentioned in paragraph 9 of the application. Therefore the question of belief is clearly answered in the application itself., He submitted that there was nothing wrong with the reasoning given by the Special Judge. The judge took into consideration the alternate arguments and gave his reasons with reference to Section 297 of the Code of Criminal Procedure., In rejoinder to the submissions of Shri Venegavkar, Shri Aggarwal further submitted that in all applications filed in courts, an affidavit is necessary. As per the definition of evidence under Section 3 of the Indian Evidence Act, this application is evidence, and as per the special procedure with reference to this particular application, it was necessary that it be affirmed with proper verification., Before referring to the facts in the present case, it is necessary to reproduce certain provisions which are referred to by both the learned Counsel repeatedly: 5. Saving. Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force. 297. Authorities before whom affidavits may be sworn. (1) Affidavits to be used before any Court under this Code may be sworn or affirmed before (a) any Judge or any Judicial or Executive Magistrate, or (b) any Commissioner of Oaths appointed by a High Court or Court of Session, or (c) any notary appointed under the Notaries Act, 1952 (53 of 1952). (2) Affidavits shall be confined to, and shall state separately, such facts as the deponent is able to prove from his own knowledge and such facts as he has reasonable ground to believe to be true, and in the latter case, the deponent shall clearly state the grounds of such belief. (3) The Court may order any scandalous and irrelevant matter in the affidavit to be struck out or amended. 4. Unless it is otherwise provided, an affidavit may be made by any person having knowledge of the facts deposed to. 5. (1) Every affidavit should clearly specify what portion of the statement is made on the declarant’s knowledge and what portion of the statement is made on his information or belief. (2) When a particular portion is not within the declarant’s own knowledge but is stated from information obtained from others, the declarant must use the expression \I am informed\ and if it is made on belief should add \I verily believe it to be true.\ He must also state the source or ground of the information or belief, and give the name and address of, and sufficiently describe for the purpose of identification, the person or persons from whom he had received such information. (3) When the statement rests on facts disclosed in documents or copies of documents procured from any Court or other person, the declarant shall state the source from which they were procured and his information, or belief, as to the truth of the facts disclosed in such documents. 4. Application for declaration of fugitive economic offender and procedure therefor. (1) Where the Director or any other officer not below the rank of Deputy Director authorised by the Director for the purposes of this section, has reason to believe (the reasons for such belief to be recorded in writing), on the basis of material in his possession, that any individual is a fugitive economic offender, he may file an application in such form and manner as may be prescribed in the Special Court that such individual may be declared as a fugitive economic offender. (2) The application referred to in sub‑section (1) shall contain (a) reasons for the belief that an individual is a fugitive economic offender; (b) any information available as to the whereabouts of the fugitive economic offender; (c) a list of properties or the value of such properties believed to be the proceeds of crime, including any such property outside India for which confiscation is sought; (d) a list of properties or benami properties owned by the individual in India or abroad for which confiscation is sought; (e) a list of persons who may have an interest in any of the properties listed under clauses (c) and (d). (3) The Authorities appointed for the purposes of the Prevention of Money‑Laundering Act, 2002 shall be the Authorities for the purposes of this Act. 11. Procedure for hearing application. (1) Where any individual to whom notice has been issued under subsection (1) of section 10 appears in person at the place and time specified in the notice, the Special Court may terminate the proceedings under this Act. (2) Where any individual to whom notice has been issued under sub‑section (1) of section 10 fails to appear at the place and time specified in the notice, but enters appearance through counsel, the Special Court may in its discretion give a period of one week to file a reply to the application under section 4. (3) Where any individual to whom notice has been issued under sub‑section (1) of section 10 fails to enter appearance either in person or through counsel, and the Special Court is satisfied (a) that service of notice has been effected on such party; or (b) that notice could not be served in spite of best efforts because such individual has evaded service of notice, it may, after recording reasons in writing, proceed to hear the application. (4) The Special Court may also give any person to whom notice has been issued under sub‑section (2) of section 10 a period of one week to file a reply to the application under section 4. 12. Declaration of fugitive economic offender. (1) After hearing the application under section 4, if the Special Court is satisfied that an individual is a fugitive economic offender, it may, by an order, declare the individual as a fugitive economic offender for reasons to be recorded in writing. (2) On a declaration under sub‑section (1), the Special Court may order that any of the following properties stand confiscated to the Central Government (a) the proceeds of crime in India or abroad, whether or not such property is owned by the fugitive economic offender; and (b) any other property or benami property in India or abroad, owned by the fugitive economic offender. (3) The confiscation order of the Special Court shall, to the extent possible, identify the properties in India or abroad that constitute proceeds of crime which are to be confiscated and in case such properties cannot be identified, quantify the value of the proceeds of crime. (4) The confiscation order of the Special Court shall separately list any other property owned by the fugitive economic offender in India which is to be confiscated. (5) Where the Special Court has made an order for confiscation of any property under sub‑section (2), and such property is in a contracting State, the Special Court may issue a letter of request to a Court or authority in the contracting State for execution of such order. (6) Every letter of request to be transmitted to a contracting State under sub‑section (5) shall be transmitted in such form and manner as the Central Government may, by notification, specify in this behalf. (7) The Special Court may, while making the confiscation order, exempt from confiscation any property which is a proceed of crime in which any other person, other than the fugitive economic offender, has an interest if it is satisfied that such interest was acquired bona fide and without knowledge of the fact that the property was proceeds of crime. (8) All the rights and title in the confiscated property shall, from the date of the confiscation order, vest in the Central Government, free from all encumbrances. (9) Where on the conclusion of the proceedings, the Special Court finds that the individual is not a fugitive economic offender, the Special Court shall order release of property or record attached or seized under this Act to the person entitled to receive it. (10) Where an order releasing the property has been made by the Special Court under sub‑section (9), the Director or any other officer authorised by him in this behalf may withhold the release of any such property or record for a period of ninety days from the date of receipt of such order, if he is of the opinion that such property is relevant for the appeal proceedings under this Act. 16. Rules of evidence. (1) The burden of proof for establishing (a) that an individual is a fugitive economic offender; or (b) that a property is the proceeds of crime or any other property in which the individual alleged to be a fugitive economic offender has an interest, shall be on the Director or the person authorised by the Director to file the application under section 4. (2) Notwithstanding anything contained in any other law for the time being in force, where any person referred to in sub‑section (2) of section 10 claims that any interest in any property was acquired bona fide and without knowledge of the fact that such property constitutes proceeds of crime, the burden of proving such fact shall lie upon him. (3) The standard of proof applicable to the determination of facts by the Special Court under this Act shall be preponderance of probabilities. 21. Overriding effect. The provisions of this Act shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force. 22. Application of other laws not barred. The provisions of this Act shall be in addition to and not in derogation of any other law for the time being in force. Rule 3 of the FEO Rules reads thus: 3. Form and manner of application for declaring an individual as a fugitive economic offender. (1) The Director or the authorised officer, as the case may be, shall prepare an index containing the following materials, namely: (i) a copy of a warrant of arrest in relation to prosecution of a Scheduled Offence against the individual believed to be a fugitive economic offender issued by any Court in India; (ii) a statement of reasons to believe that an individual is a fugitive economic offender; (iii) a statement on any information available as to the whereabouts of the individual believed to be a fugitive economic offender; (iv) any proof of effort undertaken to bring the individual believed to be a fugitive economic offender back to India; (v) a list of properties or value of such properties believed to be the proceeds of crime, including any such property outside India for which confiscation is sought; (vi) a list of properties or benami property owned by the individual believed to be a fugitive economic offender in India or abroad for which confiscation is sought; (vii) a copy of a confiscation order issued by the Adjudicating Authority under the Prohibition of Benami Property Transactions Act, 1988, if any; (viii) a list of persons who may have an interest in any of the properties listed under clauses (v) and (vi). (2) The index and material prepared under sub‑rule (1) shall be signed on each page and forwarded to the Special Court in a sealed envelope, indicating a reference number and date of despatch. (3) The Director or the authorised officer, as the case may be, shall maintain registers and other records such as acknowledgement slip register and dak register and shall ensure that necessary entries are made in the register immediately as soon as a copy of the application along with the materials are forwarded to the Special Court., The verification clause below the application preferred under Section 4 of the FEO Act is as follows: “I, Kapil Raj, son of Mr. Om Singh, Deputy Director, Directorate of Enforcement, Mumbai Zonal Office, Government of India, Ministry of Finance, Department of Revenue, Mumbai, having its office at 4th Floor, Kaiser‑I‑Hind, Currimbhoy Road, Ballard Estate, Mumbai‑400001, the applicant herein do hereby solemnly affirm and state that whatever is stated in the preceding paragraphs of the above application is true and correct to the best of my knowledge derived from records.” Section 297 of the Code of Criminal Procedure states that the deponent making the affidavit shall separately state such facts as he is able to prove from his own knowledge and such facts as he has reasonable ground to believe to be true, and in the case of belief, he must state the grounds of such belief. In the present case, the verification mentions that the application is filed to the best of the deponent’s knowledge derived from records. He has not stated that he was filing the application based on his own knowledge, but that it was based on knowledge derived from records. Therefore there cannot be any infirmity in this type of verification, as the application is filed based on records which the deponent had perused and he believed to be true to the best of his knowledge. This complies with the requirement of clauses 4 and 5 of the Criminal Manual. The entire application was based on facts derived from records. There were no separate categories that could be restricted to his own knowledge or belief. He gave the source of his knowledge as the records, and the source was properly disclosed. Therefore, there is nothing wrong with the verification., Though Shri Aggarwal found fault with the consideration of alternate arguments, as rightly submitted by Shri Venegavkar, the Special Court could consider the alternate arguments, and there is no infirmity in that regard., I also find substance in the submissions of Shri Venegavkar that the required format of the application was complied with by Respondent No.2.
id_492	1	Section 4 of the Fugitive Economic Offenders Act refers to an application in such form and manner as may be prescribed. This form and manner is prescribed under Rule 3 of the Fugitive Economic Offenders Rules, which are reproduced hereinabove. I find that the application is filed in the format laid down in the said Rule 3. Therefore, there is sufficient compliance with the requirement of Section 4 of the Fugitive Economic Offenders Act. Accepting the arguments of Shri Aggarwal that a thing which is directed to be done in a particular way has to be done in that way only, in the present case, I find that the application is properly filed under Section 4 of the Fugitive Economic Offenders Act., As rightly submitted by Shri Venegavkar, when special procedure is provided under the Special Act, i.e., the Fugitive Economic Offenders Act in this case, this procedure will have to be followed, and in this case the said procedure has been followed. Section 5 of the Code of Criminal Procedure gives more clarity to this issue. Section 5 of the Code of Criminal Procedure provides that nothing contained in the Code of Criminal Procedure, in the absence of a specific provision to the contrary, shall affect any special law or any special form of procedure prescribed by any other law. Thus, the procedure prescribed under the Fugitive Economic Offenders Act is not affected by the provisions of the Code of Criminal Procedure., In fact, Section 21 of the Fugitive Economic Offenders Act gives an overriding effect to the Fugitive Economic Offenders Act and therefore, even as per Section 5 of the Code of Criminal Procedure and also as per Section 21 of the Fugitive Economic Offenders Act, the special procedure prescribed under the Fugitive Economic Offenders Act will not get affected by any provision. In this context, the preamble of the Act is significant. It states that this is an Act to provide for measures to deter fugitive economic offenders from evading the process of law in India by staying outside the jurisdiction of Indian courts, to preserve the sanctity of the rule of law in India and for matters connected therewith or incidental thereto. Therefore, Section 4 of the Fugitive Economic Offenders Act and Rule 3 of the Fugitive Economic Offenders Rules are made to further the objective of this Act and they cannot be bypassed by taking recourse to other provisions of the Code of Criminal Procedure to contend that the affidavit was not proper., Looking at all these aspects of this matter, firstly I do not find any infirmity in the verification and, even otherwise, I find that all the requirements under Section 4 of the Fugitive Economic Offenders Act and under Rule 3 of the Fugitive Economic Offenders Rules are properly complied with in this case. Therefore, I do not see any reason to interfere with the impugned order and hence the application is rejected. The interim relief stands vacated. In view of disposal of the main application, nothing survives in the pending interim applications and the same are also disposed of.
id_493	0	Serial No. 04 Supplementary List Date of Order: 07.02.2022 Sanjeeb Ch. Marak Vs. State of Meghalaya & others. Coram: Honourable Mr. Justice Sanjib Banerjee, Chief Justice Honourable Mr. Justice W. Diengdoh, Judge. Appearance: For the Petitioner/Appellant: Mr. K. C. Gautam, Advocate. For the Respondent(s): Mr. B. Bhattacharjee, Additional Advocate General with Ms. Z. E. Nongkynrih, Government Advocate. Whether approved for reporting in law journals etc.: No. Whether approved for publication in press: No. Judgment (per the Honourable Chief Justice) (Oral)., The marginal delay of about 12 days in preferring the appeal is condoned. The appeal is taken on record., The short grievance of the appellant, who has been dismissed from the Meghalaya police service by an order dated January 15, 2016, is that the precondition to dispensing with an inquiry in terms of Article 311(2)(b) of the Constitution was not complied with in the appellant being summarily dismissed from service without being afforded an opportunity to deal with the charges levelled against him., Article 311(2) of the Constitution is a safety‑net that is provided to every person who is a member of a civil service of the Union or of an All‑India service or a civil service of a State or holds a civil post under the Union or a State. It is constitutionally mandated that such a person shall be dismissed or removed or reduced in rank only upon an inquiry in which he has been informed of the charges levelled against him and given a reasonable opportunity of being heard in respect thereof. The second proviso to the clause, inter alia, mandates that the clause, that is to say Article 311(2) of the Constitution, would not apply in certain situations: 311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State. Provided further that this clause shall not apply (a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or (b) where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or (c) where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to hold such inquiry., The appellant asserts that the three situations covered by the relevant proviso are distinct and do not overlap. According to the appellant, a relevant person may be dismissed or removed from service or reduced in rank following his conviction on a criminal charge, which implies the conviction by a criminal court. The second ground under which the clause would be inapplicable would be when the authority empowered to dismiss the relevant person is satisfied for some reason that it is not reasonably practicable to hold the inquiry envisaged in the substantive provision of the clause. However, there is a caveat to the second condition: the reason as to why it is not practicable to hold such inquiry should be recorded by the relevant authority in writing. Thus, according to the appellant, the mandatory inquiry may not be dispensed with unless the reasons therefor are recorded as to why it is not reasonably practicable to hold such inquiry. In the absence of reasons, the appellant maintains, the relevant order would have no legs to stand on., For the completeness of the discussion, the third limb of the second proviso has also to be covered. Such third limb provides for the satisfaction of the President or the Governor, as the case may be, that in the interest of the security of the State it is not expedient to hold such inquiry., Though the third limb of the relevant proviso does not come into play in the present case, the appellant has laboured on such aspect to emphasise that if it is the security of the State that is in question, it is only for the highest office of the President or the Governor to be satisfied in such regard; no satisfaction on such count even expressly mentioned by the disciplinary authority would allow the inquiry to be dispensed with. In other words, the appellant seeks to compartmentalise the three situations and suggest that the entirety of the conditions in one situation must be complied with and it would not do for a disciplinary authority to dispense with the inquiry on the ground that the interest of the security of the State demands otherwise., In the present case, a confidential report, departmentally rendered, found that the appellant had passed on information pertaining to police operations and movements to a banned and extremist outfit by the name of Garo National Liberation Army. At the time that such confidential report was obtained in or about 2015‑16 there was a spurt in the violent and nefarious activities undertaken by the outfit and it appears that several police personnel lost their lives in the course of dealing with the outfit., The order of dismissal of January 15, 2016 referred to the confidential report of the appellant herein having passed on information to the banned outfit. The order alluded to the casualties suffered by the police and opined that in the light of the material available against the appellant, it was incumbent that he be removed from service immediately without any formal inquiry. However, the relevant order did not expressly indicate why it was not reasonably practicable to hold an inquiry and give the appellant an opportunity to deal with the charges levelled against him before taking any punitive action. To such extent the appellant is justified in the assertion that the letter of Article 311(2)(b) of the Constitution may have not been followed., An initial challenge was launched against the order of January 15, 2016 in proceedings under Article 226 of the Constitution, which culminated in an order passed on August 6, 2019 to the effect that since the appellant herein had preferred a statutory appeal from the order of dismissal, the appellant had to await the outcome thereof before approaching the Meghalaya High Court in its extraordinary jurisdiction. A direction was issued for the expeditious disposal of the appeal which resulted in the appellate order being passed on October 23, 2019., The appellate authority recorded that the papers had been examined and it was evident that the case was that the appellant had links with the banned outfit and had passed on information about police movements and operations to the outlawed organisation. The appellate authority found that the act was very grave in nature considering the fact that he was a member of the police force. The appellate authority recorded that the conduct of the appellant had exposed police personnel to great risk and rendered several operations futile and such conduct was unbecoming of a member of a police force. The appellate authority expressed satisfaction that senior police officials had dealt with the matter in an appropriate manner and the obvious lack of loyalty on the part of the appellant called for his summary dismissal. Again, the letter of Article 311(2)(b) of the Constitution may not have been complied with in the appellate authority finding any express reason for it not being reasonably practicable for an inquiry to be held against the appellant before punishing him., In the judgment and order impugned dated December 17, 2021, the Meghalaya High Court recorded the submission of the parties and noticed the several authorities relied upon by the appellant herein in support of the contention that the reason had to be indicated before any inquiry could be dispensed with. The writ court also recorded that the records pertaining to the proceedings had been placed before the Court and the writ court took the trouble of going through the records., Indeed, the writ court found that the appellant herein had admitted to having links with the banned organisation. In the light of such discovery from the records, the writ court held that it would have been futile to conduct any inquiry since the material in the confidential report regarding the appellant's links with the banned outfit stood corroborated by the appellant's admission which was evident from the records. The writ court also held that since the matter pertained to the security of the State, the decision to summarily remove the appellant from service did not warrant any interference., Reasons are indispensable in any form of adjudication or assessment, whether judicial or quasi‑judicial. Reasons are the links that indicate what impelled the adjudicating mind to arrive at the conclusion after the journey through the facts that were presented before the adjudicating authority. As to the quality of reasons, it has often been said that several volumes may be wasted without indicating any iota of reason; while a terse sentence covering two or three lines may provide adequate reasons. It is also possible to infer reasons from a relevant order when no express reasons may be found therein., Here is a case where a confidential report was obtained indicating the links of the appellant herein with a banned outfit that the appellant's employer was engaged with to quell the disruptive activities initiated by such outfit. Senior police personnel went through the confidential report and found sufficient merit therein. Even if, for the present discussion, the admission of the appellant is not taken into consideration since that has not been expressly referred to in either the original order of January 15, 2016 or the appellate order of October 23, 2019, what is evident is that both the disciplinary authority and the appellate authority found the material against the writ petitioner to be unimpeachable, given that the nature of charge against the writ petitioner was that of betraying his employer and providing information to the banned outfit that the appellant's employer was engaged in fighting. It may be reasonably inferred from the departmental orders impugned that it was not reasonably practicable to hold any inquiry. There is no doubt that the spirit of Article 311(2)(b) has been complied with and the same is evident both from the order of punishment and the appellate order dealing with the same., While it is true that as to whether the security of the State is at stake is a matter that the President or the Governor, as the case may be, must be satisfied with, the three limbs of the second proviso to Article 311(2) of the Constitution cannot be made into watertight compartments. This is particularly so since the appellant herein was a member of a police force and not in any other civil service. When a member of the police force was found betraying his own force and supplying information to an extremist outfit that the police organisation was trying to deal with, it was justifiable on the part of the disciplinary authority to consider it to be not reasonably practicable to afford the writ petitioner an opportunity of dealing with the charge against him in the course of any inquiry. Some latitude has to be given to the police authorities especially in a scenario where no case of malice in fact is made out., Judicial notice must be taken of the fact that the police obtain confidential information from undisclosed sources and it may neither be prudent nor practicable to expose the identity of the sources or risk such sources to be cross‑examined or their identities revealed. In such a scenario, particularly with senior police officials having no axe to grind against the appellant having found that the material against the appellant was clinching, the reason for dispensing with the inquiry is self‑evident and writ large in the departmental orders impugned without being expressly recorded., Before parting with the matter, a word of caution may be inserted. It is elementary that when the law requires a certain thing to be done in a particular manner, it has to be done in such manner or not at all. The rule applies with more vigour in respect of any mandate as found in any provision of the supreme law which is the Constitution. At the same time, no adjudication is made without reference to the context and the surrounding circumstances, be they geographical or situational or even time‑specific or the like. It is also possible that the reason for dispensing with the inquiry is self‑evident in the order impugned despite it not being expressly spelled out., Though this is not to suggest that when reasons are required to be expressed, they may only be inferred; in certain situations, particularly in the context of the present case, when the reasons are obvious and apparent, the mandate of the provision may be seen to have been complied with., For the reasons aforesaid, the judgment and order impugned dated December 17, 2021 do not call for interference. WA No.1 of 2022 is dismissed.
id_497	0	113 CRWP-7874 of 2021 Paramjit Kaur and another v. State of Punjab and others. Present: Mr. Dinesh Mahajan, Advocate, for the petitioners. Case heard via video conferencing. By this petition, filed under the provisions of Article 226 of the Constitution of India, the petitioners seek issuance of a writ in the nature of mandamus, directing the official respondents, especially respondents No. 2 and 3, not to harass them at the instance of respondents No. 4 to 6. Learned counsel for the petitioners submits that petitioner No. 2 and respondent No. 4 having earlier been married, petitioner No. 2 filed a divorce petition, which was however dismissed, upon which an appeal was filed by him before this court which is still pending; and in an order passed in that appeal on 30 September 2008 (copy Annexure P‑4), it was observed by this court that there are no chances of reconciliation, though that possibly may have been only the contention made by counsel appearing for the appellant (petitioner No. 2 herein). He further submits that the petitioners are in a live-in relationship with each other and are in apprehension of danger to their life and liberty at the hands of respondents No. 4 to 6, with the Station House Officer, Police Station Samrala, District Ludhiana, harassing the petitioners at the instance of the said respondents. On 19 August 2021 the petitioners had been directed by a coordinate Bench to address arguments in terms of a judgment of the Allahabad High Court in Smt. Aneeta and another v. State of Uttar Pradesh and three others. Learned counsel for the petitioners today submits that in the said judgment it has been observed that without obtaining a divorce, a spouse is not entitled to protection qua a relationship with another person. With due respect, I find myself unable to agree with that, especially in view of the fact that the Supreme Court in Joseph Shine v. Union of India (Writ Petition (Criminal) No. 194 of 2017, decided on 27 September 2018) has struck down Section 497 of the Indian Penal Code as being unconstitutional and violative of Articles 14, 15 and 21 of the Constitution of India, the said provision being one providing punishment for adultery. Consequently, prima facie at least at this stage, no offence would seem to have been committed by the petitioners, they being adults in a live-in relationship with each other, whether or not any divorce petition is pending before this court, which of course it is in the present case, by way of First Appeal Order M‑146 of 2008., Consequently, notice of motion is issued, with Mr. Rana Harjasdeep Singh, learned Deputy Advocate General, Punjab, accepting notice at the asking of the Punjab and Haryana High Court on behalf of respondents No. 1 to 3, with respondents No. 4 to 6 to be served by normal process. In the meanwhile, respondent No. 2, i.e., the Senior Superintendent of Police, Khanna, shall ensure that the life and liberty of the petitioners is duly protected at the hands of respondents No. 4 to 6, as also at the hands of the Station House Officer, with obviously a very adverse view to be taken by this court in case the petitioners are again harassed by the Station House Officer on account of any live-in relationship that they have with each other. The Senior Superintendent of Police, Police District Khanna, is directed to file his own affidavit in reply to the petition. The matter is adjourned to 24 September 2021. For the purpose of determining the status of First Appeal Order M‑146 of 2008, the case file of that case shall be put up along with on that date, with this court not to go into the merits of that case at all, it not being a part of the roster of this Bench.
id_498	0	Applicant: Nadeem Ansari. Opposite Party: State of Uttar Pradesh. Counsel for the Applicant: Dhirendra Kumar Agrahari, Mohammad Zakir, Sudhir Mehrotra. Counsel for the Opposite Party: Additional Government Advocate Honourable Deepak Verma, J. Heard Sri Nanhey Lal Tripathi, Advocate holding brief for Sri Mohammad Zakir, learned counsel for the applicant, learned Additional Government Advocate for the State, and perused the record., The bail application has been filed on behalf of the applicant with a prayer to release him on bail in Crime No. 146 of 2022, under Sections 153A, 295A, 505(2) of the Indian Penal Code and Section 67 of the Information Technology Act, 2008, Police Station Khanpur, District Bulandshahr, during the pendency of trial. The allegation against the applicant is that he tried to incite communal tension while posting a video on Facebook and mobile showing the beheading of former Bharatiya Janata Party spokesperson Nupur Sharma., Learned counsel for the applicant submitted that the applicant is innocent and has been falsely implicated in the present case and that there is no evidence of the alleged crime. It was further argued that the offence is triable by the Magistrate. There is one case of criminal history against the applicant which has been explained in paragraph 5 of the affidavit filed in support of the bail application. The applicant has been languishing in jail since 13 June 2022 and, if released on bail, will not misuse the liberty of bail and will cooperate in trial. Learned Additional Government Advocate has opposed the bail prayer of the applicant., Considering the entire facts and circumstances of the case, the submissions of learned counsel for the parties and keeping in view the nature of the offence, evidence, complicity of the accused and without expressing any opinion on the merits of the case and larger mandate of Article 21 of the Constitution of India, as laid down in Satendra Kumar Antil versus Central Bureau of Investigation and Another, passed in Supreme Court of India Special Leave Petition (Criminal) No. 5191 of 2021, the Honourable High Court of Judicature at Allahabad is of the view that the applicant has made out a case for bail., The bail application is allowed. The applicant, Nadeem Ansari, is to be released on bail upon furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court, subject to the following conditions. Before issuing the release order, the sureties shall be verified. The applicant shall not tamper with the prosecution evidence by intimidating or pressurising the witnesses during the investigation or trial. The applicant shall cooperate in the trial sincerely without seeking any adjournment. The applicant shall not indulge in any criminal activity or commission any crime after being released on bail. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.
id_499	0	Date of Decision: 27th November 2020. Through: Mr. Kanhaiya Singhal and Ms. Pratiksha Tripathi, Advocates. Versus: Mr. Rahul Mehra, Standing Counsel for GNCTD with Ms. Aashaa Tiwari, Assistant Public Prosecutor for the State and Mr. Chaitanya Gosain, Advocate. Mr. Rajshekhar Rao, Ms. Aanchal Tikmani and Mr. Shreeyash Lalit, Advocates for Delhi High Court. Mr. Vikas Pahwa, Senior Advocate as amicus curiae with Mr. Sumer Singh Boparai, Mr. Varun Bhati and Ms. Raavi Sharma, Advocates. Prof. (Dr.) G.S. Bajpai, Professor of Criminology & Criminal Justice, National Law University, Delhi as amicus curiae assisted by Mr. Neeraj Tiwari, Assistant Professor of Law, Mr. Ankit Kaushik, Research Associate, Mr. G. Arudhra Rao and Ms. Shelal Lodhi Rajput. Mr. Kanwal Jeet Arora, Member Secretary, Delhi State Legal Services Authority., The appellants have been convicted by the learned Additional Sessions Judge under Sections 302/34 IPC. The learned Additional Sessions Judge reserved the judgment after conclusion of the arguments on 06 March 2020 while being posted at Karkardooma Courts. On 13 March 2020, the learned Additional Sessions Judge was transferred from Karkardooma Courts to Rohini Courts and he pronounced the impugned judgments on 09 July 2020. The appellants have challenged the impugned judgments on two grounds: first, that the learned Additional Sessions Judge ceased to have jurisdiction in respect of Karkardooma Courts matters upon being transferred with immediate effect vide transfer order No. 10/G‑I/Gaz.IA/DHC/2020 dated 13 March 2020 and he was not empowered to deal with this case which was tried in the jurisdiction of Karkardooma Courts; and second, that Note 2 appended to the transfer order dated 13 March 2020 which empowered the judicial officers to pronounce the judgment/order in the reserved matters was invalid. Reliance is placed on the Division Bench judgment of the Supreme Court of India in Jitender @ Kalle v. State, (2013) 196 DLT 103 (DB)., An important question of law has arisen for consideration before the Supreme Court of India with respect to the validity of Note 2 appended to the transfer order dated 13 March 2020 and the correctness of the findings of Jitender’s case relating to Note 2 in respect of similar transfer orders of the Delhi High Court. Note 2 empowered the transferred judicial officers to pronounce the judgments/orders in respect of the reserved matters within a period of two to three weeks after transfer took effect, notwithstanding such posting/transfer. Note 2 appended to the Transfer Order is reproduced herein:, Note 2. The judicial officers under transfer shall notify the cases in which they had reserved judgments/orders before relinquishing the charge of the court in terms of the posting/transfer order. The judicial officers shall pronounce judgments/orders in all such matters on the date fixed or within a maximum period of two to three weeks thereof, notwithstanding the posting/transfer. Date of pronouncement shall be notified in the cause list of the court to which the matter pertains as also of the court to which the judicial officer has been transferred and on the website., Brief facts. On 15 June 2017 at about 09:00 PM, the appellants namely Karan, Sunny and MB, a juvenile in conflict with law, dragged Gulfam out of his house to a nearby park where Karan and Sunny caught hold of Gulfam and MB stabbed Gulfam in his back with a knife. Gulfam suffered fatal injuries. FIR No. 465/2017 was registered at Police Station Nand Nagari and both the appellants were charged for offences under Sections 302/34 IPC. The charge sheet was committed to the learned Additional Sessions Judge Shahdara vide order dated 23 October 2017 of the Chief Metropolitan Magistrate and both the accused persons faced trial., Sh. Jagdish Kumar, Additional Sessions Judge, Karkardooma Courts heard the final arguments which concluded on 06 March 2020 whereupon he reserved the judgment and the matter was listed for orders on 17 March. Vide transfer notification/order bearing No. 10/G‑I/Gaz.IA/DH/2020 dated 13 March 2020, Sh. Jagdish Kumar was transferred from the post of Additional Sessions Judge, Judge‑04, Karkardooma Courts to Additional Sessions Judge (Special Fast Track Court), North Rohini with immediate effect. On 09 July 2020, Sh. Jagdish Kumar, Additional Sessions Judge delivered the judgment while presiding as Additional Sessions Judge (Special Fast Track Court), North Rohini., These appeals came up for hearing for the first time on 16 July 2020, when the Division Bench of the Supreme Court of India issued notice to the State. Considering that the grounds raised by the appellants had wide ramifications on the criminal justice system, the Division Bench issued notice to the Delhi High Court on the administrative side. The Division Bench further appointed Mr. Vikas Pahwa, Senior Advocate to assist this Court as amicus curiae. The Division Bench further directed the learned Additional Sessions Judge to defer the hearing on sentence by two weeks., On 10 August 2020, Mr. Vikas Pahwa, learned amicus curiae, submitted that this case is squarely covered by the law laid down by the Supreme Court of India in Gokaraju Rangaraju v. State of Andhra Pradesh, (1981) 3 SCC 132 in which the Supreme Court held that the judgment passed by a Sessions Judge would be legal and valid even if the appointment of the concerned Judge was subsequently declared to be invalid. The Supreme Court held that the de facto doctrine was well established. The Supreme Court considered earlier cases on the de facto doctrine and noted that it was recognized by British as well as American courts. The Supreme Court further noted that Article 233A was incorporated by the 20th Amendment to the Constitution in 1966 to protect the judgments delivered by the Judges notwithstanding that their appointment, posting, promotion or transfer was not valid. The 20th Amendment was the consequence of the decision of the five‑Judge Bench judgment of the Supreme Court in Chandra Mohan v. State of U.P., AIR 1966 SC 1987 in which the appointment of the District Judges was held to be invalid. The Supreme Court also noted that the de facto doctrine is not a stranger to the Constitution or to the Parliament/Legislatures of the States. Article 71(2) of the Constitution protects the actions of the President and the Vice‑President even if their election was declared void. Section 107(2) of the Representation of the People Act, 1951 protects the actions of the Members of Parliament even if their election was declared void., Vide order dated 10 August 2020, the Division Bench referred these matters to a larger Bench considering the important questions of law relating to the criminal justice system involved in these cases., On 25 August 2020, this matter was placed before the present Bench of three Judges. The brief notes of submissions were filed by Mr. Rajshekhar Rao, learned counsel for the Delhi High Court as well as learned amicus curiae along with the relevant judgments. Learned counsel for the appellants submitted that he had gone through the submissions filed by the High Court as well as the learned amicus curiae and he received instructions from the appellants to withdraw the objections to the jurisdiction of the learned Additional Sessions Judge and not to press these appeals but with liberty to challenge the conviction on merits after the passing of the order on sentence., Mr. Rajshekhar Rao, learned counsel for the Delhi High Court, Mr. Vikas Pahwa, learned amicus curiae and Mr. Rahul Mehra, learned Standing Counsel for the State submitted that the findings of the Division Bench relating to Note 2 in Jitender’s case affected the entire criminal justice system and therefore this Court should examine the validity of Note 2 issued by the High Court in these appeals. This Court, vide order dated 25 August 2020, permitted the appellants to withdraw the objections to the jurisdiction of the learned Additional Sessions Judge and the bail applications were dismissed as infructuous. However, the appeals were kept pending to consider the legal issues raised by the High Court., Mr. Kanhaiya Singhal, learned counsel for the appellant; Mr. Rajshekhar Rao, learned counsel for the High Court; Mr. Rahul Mehra, learned Standing Counsel and Mr. Vikas Pahwa, learned amicus curiae, further submitted that there is a need to frame guidelines for award of compensation under Section 357 CrPC. It was submitted that the courts below are not conducting any inquiry to ascertain the impact of crime on the victims and the paying capacity of the accused before awarding the compensation. It was further submitted that guidelines be framed in this regard. Prof. G.S. Bajpai, Professor of Criminology & Criminal Justice, National Law University, Delhi, who has done extensive research on victimology, has been appointed as amicus curiae to assist in this case in framing guidelines under Section 357 CrPC., The learned Additional Sessions Judge was transferred from Karkardooma Courts to Rohini Courts by the Delhi High Court vide transfer order dated 13 March 2020 and Note 2 appended to the transfer order dated 13 March 2020 is under challenge. Note 2 appended to the Transfer Order dated 13 March 2020 directs: (i) The judicial officers under transfer shall notify the cases in which they had reserved judgments/orders before relinquishing the charge of the court in terms of the posting/transfer order; (ii) The judicial officers shall pronounce judgments/orders in all such matters on the date fixed or within a maximum period of two to three weeks; (iii) Notwithstanding the posting/transfer, judgments/orders shall be pronounced within a maximum period of two to three weeks; and (iv) Date of pronouncement shall be notified in the cause list of the court to which the matter pertains as also the cause list of the court to which the judicial officer has been transferred and on the website., In Jitender’s case, a similar Note 2 was appended to the transfer order of the learned Additional Sessions Judge which is reproduced hereunder: Note 2. Judicial Officers under transfer shall notify the cases in which they had reserved judgments/orders before relinquishing the charge of the court in terms of the postings/transfers order. The Judicial Officers shall pronounce the judgments/orders in all such matters within a period of two to three weeks, notwithstanding the posting/transfer., The aforesaid Note 2 was used for the first time in the transfer/posting order dated 13 May 2009 on the recommendation dated 12 May 2009 of the Administrative and General Supervision Committee of the Delhi High Court. As per minutes of the meeting of the Administrative and General Supervision Committee dated 12 May 2009, the following recommendations were made: (a) It was decided that whenever postings/transfers of judicial officers are made, the order to be issued shall be made effective two to three days after the date of issuance. (b) In the postings/transfers order it shall be directed that the judicial officers under transfer shall notify the cases in which they had reserved judgments/orders before relinquishing the charge of the court in terms of the postings/transfers order. The judicial officers shall be directed to pronounce judgments/orders in all such matters within a period of two to three weeks, notwithstanding the posting/transfer., Note 2 appended to Transfer Order dated 08 February 2010 has been used in various other transfer/posting orders of the judicial officers by this Court such as transfer orders dated 13 March 2009; 17 July 2009; 28 July 2009; 15 October 2009; 14 December 2009; 04 February 2010; 08 March 2010; 26 April 2010; 26 August 2010; 09 September 2010; 29 October 2010; 15 December 2010; 23 December 2010; 02 February 2011; 30 September 2019; 19 November 2019; 04 December 2019; 19 February 2020. Various other versions similar to Note 2 have been used in the transfer/posting orders by the Delhi High Court for transfer of judicial officers of the subordinate judiciary., Article 227 of the Constitution empowers the Delhi High Court with the superintendence over all courts and tribunals throughout its territory. The power of superintendence under Article 227 includes administrative as well as judicial superintendence i.e., the Delhi High Court can transfer a case by exercising its administrative power of superintendence or its judicial power of superintendence. Articles 227 and 235 of the Constitution empower the Delhi High Court to transfer the cases on the administrative side. Article 235 of the Constitution empowers the Delhi High Court with control over subordinate courts including posting and promotion of judicial officers., The Code of Criminal Procedure vests plenary powers in the Delhi High Court relating to the superintendence over the subordinate courts including the appointment, posting, promotion and transfer of the judicial officers. Reference is made to Sections 4(1), 7, 9, 11, 12, 13, 16, 17 and 18 CrPC. Section 33 provides that the judicial officers shall have the powers conferred upon them by the Delhi High Court and the Delhi High Court is empowered to withdraw the powers conferred on any officer. Section 194 empowers the Delhi High Court to direct a Sessions Judge to try a particular case. Section 407 empowers the Delhi High Court to transfer the cases on the judicial side and Section 483 stipulates the duty of the Delhi High Court to exercise continuous superintendence over courts of Judicial Magistrates subordinate to it to ensure expeditious and proper disposal of cases by such magistrates. Section 482 vests inherent power in the Delhi High Court to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of process of any court or otherwise to secure the ends of justice. Section 483 empowers the Delhi High Court to exercise superintendence over the subordinate judiciary. Rule 3, Part B of Chapter 26 of Delhi High Court Rules empowers the Delhi High Court to transfer the cases on administrative grounds. To summarize, the Delhi High Court has both judicial as well as administrative powers to regulate administration of justice. Reliance is placed on Hari Vishnu Kamath v. Syed Ahmad Ishaq, (1955) 1 SCR 1104; Ranbir Yadav v. State of Bihar, (1995) 4 SCC 392; Kamlesh Kumar v. State of Jharkhand, (2013) 15 SCC 460; Ajay Singh v. State of Chhattisgarh, (2017) 3 SCC 330 and S. J. Chaudhri [Lt. Col. (Retd.)] v. State, (2006) 131., Chapter XXXV of the Code of Criminal Procedure deals with irregular proceedings. The object of Chapter XXXV is to protect the irregular proceedings unless the error has resulted in failure of justice. Section 460 protects irregularities which do not vitiate the proceedings whereas Section 461 lists out irregularities which vitiate proceedings. Section 462 deals with proceedings in a wrong place and Section 465 deals with the effect of an error, omission or irregularity., Chapter XXXV of the Code of Criminal Procedure protects the irregularities in procedure unless it has resulted in failure of justice. Section 462 protects judgment given by a criminal court in a proceeding which took place in a wrong jurisdiction unless it has resulted in failure of justice. Section 465 protects the irregularities in the complaint, summons, warrants, proclamation, order, judgment or other proceedings before or during trial. Reliance is placed on Willie (William) Slaney v. State of Madhya Pradesh, (1955) 2 SCR 1140 and State of Madhya Pradesh v. Bhooraji, (2001) 7 SCC 679., In Pulukuri Kotayya v. King‑Emperor, (1947) 1 Mad LJ 219, the Privy Council held that the distinction between an illegality and an irregularity is one of degree rather than of kind. In Willie (William) Slaney (supra), the Constitution Bench of the Supreme Court of India held that the illegality that strikes at the root of the trial and cannot be cured is not merely an irregularity but the illegality that may strike at the root of the trial and can be cured is merely an irregularity., The conviction cannot be set aside merely on the ground of procedural irregularity unless it has resulted in failure of justice., In Darbara Singh v. State of Punjab, (2012) 10 SCC 476, the accused challenged the conviction under Section 302 IPC on the ground that a charge under Section 302/34 IPC was not framed against him. The Supreme Court of India rejected the objection on the ground that the appellant was unable to show what prejudice, if any, was caused to the appellant, even if such charge has not been framed against him; moreover, the appellant was always fully aware of all the facts. The Supreme Court held that failure of justice means serious prejudice caused to the accused. It has to be shown that the accused has suffered some disability or detriment in respect of the protections available to him under Indian criminal jurisprudence. Once the accused is able to show that there has been serious prejudice caused to him with respect to either of these aspects and that the same has defeated the rights available to him under criminal jurisprudence, then the accused can seek benefit under the orders of the Court., In Willie (William) Slaney v. State of Madhya Pradesh (supra), the Supreme Court of India held that the irregularities relating to the charge would not vitiate the conviction if the accused knew what he was being tried for; the main facts sought to be established against him were explained to him clearly and fairly; and he was given a full and fair chance to defend himself., In Hanumant Dass v. Vinay Kumar, (1982) 2 SCC 177, the Supreme Court of India rejected the challenge to the conviction on the ground that the case was transferred to a court which did not have territorial jurisdiction as it has not resulted in failure of justice., In Kalpnath Rai v. State, (1997) 8 SCC 732, the Supreme Court of India rejected the contention that the sanction letter did not mention the section of the offence under which the accused were prosecuted as it has not resulted in failure of justice. Sections 462 and 465 CrPC protect the irregularities pertaining to lack of jurisdiction., There are two types of jurisdiction of a criminal court, namely, (i) the jurisdiction with respect to the power of the court to try particular kinds of offences, and (ii) the territorial jurisdiction. While the former goes to the root of the matter and any transgression of it makes the entire trial void, the latter is not of a peremptory character and is curable under Section 462. Territorial jurisdiction is a matter of convenience, keeping in mind the administrative point of view with respect to the work of a particular court, the convenience of the accused as well as the convenience of the witnesses who have to appear before the court., While considering the ambit of Sections 462 and 465, the Supreme Court of India in State of Karnataka v. Kuppuswamy Gownder, (1987) 2 SCC 74 held that the scheme of the Code of Criminal Procedure is that where there is no inherent lack of jurisdiction either on the ground of lack of territorial jurisdiction or on the ground of any irregularity of procedure, an order or sentence awarded by a competent court could not be set aside unless prejudice is pleaded and proved which will mean failure of justice. The Supreme Court specifically observed that even if a trial takes place in a wrong place where the court has no territorial jurisdiction to try the case, unless failure of justice is pleaded and proved, the trial cannot be quashed. Even in cases where trial was conducted in the wrong jurisdiction, it has been held by the Supreme Court that the same would not vitiate trial unless there has been a failure of justice. Reference is made to Mangaldas Raghavji Ruparel v. State of Maharashtra, (1965) 2 SCR 894; Ram Chandra Prasad v. State of Bihar, (1962) 2 SCR 50; State of Andhra Pradesh v. Cheemalapati Ganeswara Rao, (1964) 3 SCR 297 and Kamil v. State of Uttar Pradesh, (2019) 12 SCC 600., Section 353 of the Code of Criminal Procedure provides that judgment in every trial in a criminal court shall be pronounced by the presiding officer in open court. The term presiding officer has been used in Sections 61, 70, 105, 265D, 265F, 340, 353 CrPC and Sections 366 and 367 CrPC, 1898. In Section 265F, the term presiding officer of the court is used in contrast to Section 353 which uses the term presiding officer. In Section 265F, delivery of judgment is associated with a particular court whereas Sections 353 CrPC and 366 CrPC, 1898 do not associate the delivery of a judgment with a particular court. Section 367 CrPC, 1898 provides that the judgment shall be written by the presiding officer of the court whereas there is no such stipulation in Section 353 CrPC., The Code of Criminal Procedure deals with the situation where the jurisdiction of a judge, who recorded the whole or any part of the evidence, has ceased to exist. The Code draws the distinction between the matters where hearing had been concluded prior to cessation of jurisdiction and part‑heard matters. Section 326 has to be complied with even in cases of transfer of a judicial officer within the same sessions division. Reference is made to Ranbir Yadav (supra); Bhaskar v. State, (1999) 9 SCC 551 and Anil Kumar Agarwal v. State of Uttar Pradesh, 2015 Cri LJ 2826., Section 462 provides that no finding, sentence or order shall be set aside merely on the ground that the inquiry, trial or other proceedings took place in the wrong jurisdiction unless there has been a failure of justice. Similarly, where a judge who had prepared and signed a judgment after having recorded the entire evidence and hearing arguments ceased to exercise jurisdiction prior to pronouncing the same, the successor judge was permitted to pronounce the said judgment written and signed by his predecessor where all formalities stipulated under Section 353 have been complied with by the predecessor judge. Reference is made to Bharti Arora v. State of Haryana, (2011) 1 RCR (Cri) 513 (2)., Section 353 does not limit pronouncement of a judgment in open court or by the presiding officer of the court where matter was heard. However, Sections 353 and 354 have to be complied with. The Code of Criminal Procedure does not impose a bar on pronouncement of orders/judgments by the judge who recorded the entire evidence and heard the matter or who heard the matter finally after evidence was recorded by someone else, merely because the said judge has been transferred to another court., Note 2 attached to the transfer order dated 08 February 2010 was not under challenge in Jitender’s case. In that case, the Division Bench was dealing with the validity of the judgments by which the appellant were convicted, though dictated and signed by the judge who heard the arguments but were announced by a successor judge after the transfer of the predecessor judge. Thereafter, the successor judge heard the arguments on the point of sentence and passed the orders on sentence. The accused challenged the conviction on the ground that the judgment was not duly pronounced and Section 353 was not complied with. The question before the Division Bench was whether such announcements could amount to valid judgments. The Division Bench held that the successor judge cannot adopt his predecessor’s written judgment as his own and the Code of Criminal Procedure does not permit pronouncement of an order by a successor judge authored, signed and dated by a predecessor judge. Paragraph 47 of the judgment is reproduced hereunder:, Paragraph 47 states: While it is true that the note sought to enable the judicial officers to pronounce judgments/orders within a period of two to three weeks notwithstanding the posting/transfer, that was merely an administrative order and cannot override the statutory provisions of the 1973 Code. The High Court could not permit something by way of an administrative order which was not permissible under the 1973 Code. The mere fact that there is a note such as Note 2 in the order dated 08.02.2010 would not enable us to detract from the statutory provisions which do not permit the pronouncement of a judgment by a successor judge which has been written and signed by the predecessor and, that too, after the predecessor ceased to have jurisdiction over the said case., On a bare reading of paragraph 47 of the judgment in Jitender’s case, it appears that the meaning/intention behind Note 2 was not gone into by the Division Bench. The Division Bench held that an administrative order cannot override the statutory provisions of the Code of Criminal Procedure. As such, it cannot be said that Note 2 in itself has been set aside by the Division Bench in Jitender’s case especially since in the facts of the said case, there was a clear departure from what was prescribed in Note 2 i.e., rather than the presiding officer who heard the matter pronouncing judgment after transfer albeit at the court to which he was posted, the judgment was announced by the successor although the same was dictated and signed by the predecessor judge and dispatched to the successor judge in sealed cover. Attention of the Division Bench does not appear to have been drawn to Section 462 CrPC where setting aside of an order/judgment merely on account of lack of jurisdiction has been specifically barred unless such error has in fact occasioned a failure of justice. It also appears that the attention of the Division Bench was not drawn to the judgment of the Supreme Court in Kuppuswamy Gownder, where the scope of Section 462 CrPC has been extended to cases where trial takes place in a wrong place., While considering the impact of Jitender’s case, it is important to note that every observation in a judgment is not a binding precedent. In State of Orissa v. Mohd. Illiyas, (2006) 1 SCC 275, the Supreme Court of India held that a judgment is a precedent on its own facts. It is not everything written in the judgment that constitutes a precedent. The relevant portion is as follows: \Reliance on the decision without looking into the factual background of the case before it is clearly impermissible. A decision is a precedent on its own facts. Each case presents its own features. It is not everything said by a Judge while giving judgment that constitutes a precedent. The only thing in a Judge's decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. According to the well settled theory of precedents, every decision contains three basic postulates: (i) findings of material facts, direct and inferential; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) judgment based on the combined effect of the above. A decision is an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically flows from the various observations made in the judgment. The enunciation of the reason or principle on which a question before a court has been decided is alone binding as a precedent.\
id_499	1	In Mehboob Da Wood Shaikh v. State of Maharashtra, (2004) 2 SCC 362, the Supreme Court of India held that a decision is available as a precedent only if it decides a question of law., Jitender's case before the Division Bench raised three questions: (i) whether decisions can be delivered by a successor judge in criminal matters; (ii) whether decisions announced in open court without complying with the provisions of Section 353 of the Code of Criminal Procedure can be considered as validly pronounced; and (iii) whether decisions can be authored by a successor judge in criminal matters after relinquishing charge on their transfer. However, the Division Bench did not consider whether it was mandatory for the successor judge to pronounce a judgment authored by the predecessor judge in view of Note 2 appended to the transfer order and whether the defect in pronouncement of judgment is curable under Section 462 of the Code of Criminal Procedure., Courts must exercise caution while setting aside administrative orders. Note 2 appended to the Transfer Order dated 8 February 2010 and the Transfer Order dated 13 March 2020 was issued in compliance with the principle that he who hears must decide, as held in Gullapalli Nageswara Rao v. A.P.S.R.T. Court, All India Reporter 1959 Supreme Court 308. Note 2 further ensures that pendency of cases is curbed by permitting a judge to pronounce judgments or orders within a particular time frame after transfer. It is also clear that Note 2 does not violate any legal principles stipulated in the Code of Criminal Procedure., While examining the validity of an administrative order issued by the Patna High Court under Section 9(6) of the Code of Criminal Procedure that the trial would be conducted inside the jail premises for expeditious trial, the Supreme Court of India in Mohd. Shahabuddin v. State of Bihar, (2010) 4 SCC 653 held that while reviewing administrative decisions, standards of natural justice should be maintained and the power of judicial review must not be applied blindly., Pertinently, Note 2 is issued in exercise of the supervisory jurisdiction of the Delhi High Court under Article 235 of the Constitution and in furtherance of the powers of the High Court under Section 483 of the Code of Criminal Procedure to ensure expeditious and proper disposal of cases by the courts. There is a presumption that all judicial and official acts have been regularly performed by judicial officers; unless prejudice or failure of justice can be shown, administrative orders issued by the High Court ought not to be set aside. The procedure adopted by Learned Additional Sessions Judge has not resulted in any irregularity or illegality., It is not the case of the appellants that Learned Additional Sessions Judge Shri Jagdish Kumar failed to comply with the provisions of Section 353 of the Code of Criminal Procedure while pronouncing the judgment, that parties were not duly notified in the cause list of the court where the matter was heard, that the order or judgment was not duly signed, or that the language or contents of the order did not comply with Section 354 of the Code of Criminal Procedure. The entire evidence had been recorded and arguments heard, and the trial was completed on 6 March 2020. As per Section 353 of the Code of Criminal Procedure, judgment in every trial shall be pronounced after termination of trial, and sentencing is a separate stage. The procedure prescribed under Section 235 of the Code of Criminal Procedure for a hearing on sentence was complied with. Thus, the procedure under the Code of Criminal Procedure has not been violated at any stage in the present appeals. The lapse of over four months in delivering the impugned judgment is an irregularity and can be cured., Admittedly, there is a time gap of over four months between completion of trial and pronouncement of the judgment. Learned Additional Sessions Judge relinquished charge as ASJ‑04, Shahdara on 16 March 2020 before the lunch session and took charge as Additional Sessions Judge (Special Fast Track Courts), North District, Rohini on 16 March 2020 in the forenoon., Chapter 11 Part A, Rule 4 of the Delhi High Court Rules provides for the manner in which a delay in pronouncement of a judgment by a subordinate judge is to be dealt with. Various orders of this Court have stipulated that there should be no delay in delivery of judgments in view of the pandemic, for example Dalbir Singh v. Satish Chand, CRP No. 53/2020 decided on 22 July 2020; Shushree Securities Pvt. Ltd. v. Times A & M (India) Limited, CM(M) No. 98/2020 decided on 2 March 2020; and Deepti Khera v. Siddharth Khera, CM(M) No. 1637/2019 decided on 18 November 2019., Although the Supreme Court, in Anil Rai v. State of Bihar, (2001) 7 SCC 318, directed that judgments be delivered in a time‑bound manner, none of the recommendations therein stipulate that judgments ought to be set aside merely on account of a delay of four months. Instances where the Supreme Court has set aside judgments on account of delay involve delays of over two years, such as Kanhaiyalal v. Anupkumar, (2003) 1 SCC 430 and Bhagwandas Fatehchand Daswani v. HPA International, (2000) 2 SCC 13. Practice directions of the Delhi High Court do not provide for setting aside judgments solely on the basis of delay., It is clear that various provisions of the Code of Civil Procedure and the Code of Criminal Procedure aim to ensure no delay in delivery and pronouncement of judgments or orders. If such provisions are violated, a court may consider setting aside the conviction, keeping in mind factors such as possible forgetting of facts by the judge and public confidence in the judiciary. The Supreme Court of India in Mohd. Hussain v. State, (2012) 9 SCC 408 observed that speedy trial and fair trial are integral to Article 21 of the Constitution. While deprivation of the right to speedy trial does not per se prejudice the accused, the right to speedy trial is relative and must be weighed against the impact of the crime on society and confidence in the judicial system., In the present case, Note 2 in the transfer order dated 13 March 2020 permits the judge to pronounce the judgment within two to three weeks after relinquishing charge; therefore there is no irregularity in the pronouncement. Even assuming Note 2 was invalid, the de facto doctrine laid down by the Supreme Court in Gokaraju Rangaraju would protect the impugned judgments. In Gokaraju Rangaraju, the Supreme Court considered the validity of judgments and orders passed by Sessions Judges whose appointments were subsequently quashed and applied the de facto doctrine to protect those judgments., Article 233A of the Constitution, introduced by the Twentieth Amendment, validates appointments of, and judgments delivered by, certain district judges. It provides that appointments, postings, promotions or transfers of district judges made before the commencement of the Constitution (Twentieth Amendment) Act, 1966, otherwise than in accordance with Articles 233 or 235, shall not be deemed illegal or void, and that any jurisdiction exercised or judgment passed before that commencement shall not be deemed illegal or invalid solely because of non‑compliance with those provisions., In the present case, the judgment was delivered by Learned Additional Sessions Judge Shri Jagdish Prasad in open court on 9 July 2020. The pronouncement complies with Section 353 of the Code of Criminal Procedure and no prejudice has been caused to the accused resulting in failure of justice. Learned Additional Sessions Judge presided over the trial, appreciated the evidence and heard the final arguments on 29 February 2020, 2 March 2020, 3 March 2020 and 6 March 2020, before reserving the judgment. The trial concluded under Chapter XVIII of the Code of Criminal Procedure on 6 March 2020, and the only proceeding left was the pronouncement of the judgment under Section 353., The mandate of Section 353 of the Code of Criminal Procedure is that the presiding officer pronounces the judgment in open court immediately after termination of the trial or at any subsequent time, reads the judgment in whole or in part, and signs it with the date. In the present case, the presiding officer has complied, and therefore the pronouncement is in consonance with the provision., The term 'presiding officer' in Section 353 is not defined in the Code of Criminal Procedure and must be construed liberally to include the judge before whom evidence has been recorded, arguments heard and the trial terminated for pronouncement of judgment. The only mandatory requirement is that the judge must apply his mind by appreciating the evidence while pronouncing the judgment., Learned Additional Sessions Judge had jurisdiction to pass the judgment as a de facto judge in service and holding a court of competent jurisdiction in Delhi. He pronounced the judgment on 9 July 2020, assuming jurisdiction in view of the transfer order dated 13 March 2020. To test the validity of that judgment, the de facto doctrine must be applied. This doctrine, as a matter of public policy, protects the acts of officers de facto performed within the scope of their assumed official authority in the interest of the public or third persons., In Pulin Behary Das v. King Emperor, 1911 SCC Online Cal 159, the Calcutta High Court held that the de facto doctrine is aimed at the prevention of public mischief and the protection of public and private interest., In Gokaraju Rangaraju v. State of Andhra Pradesh, 1981 (3) SCC 132, the Supreme Court upheld the validity of judgments and orders passed by Sessions Judges whose appointments were subsequently quashed, applying the de facto doctrine. The doctrine avoids endless confusion; an illegal appointment may be set aside, but the acts of those who hold office de facto are generally valid and binding as if performed by de jure officers. The doctrine requires possession of the office and performance of duties, as well as the color of title, i.e., apparent right to the office and public acquiescence., In the present case, no prejudice whatsoever has been caused to the accused by the pronouncement of the judgment. The learned Additional Sessions Judge pronounced the judgment assuming power under the administrative transfer order dated 13 February 2020, which empowered him to pronounce the judgment in reserved matters. The High Court has superintendence over the District Courts for conferring jurisdiction to try cases and the transfer of judges., Under Articles 227 and 235 of the Constitution, the Delhi High Court has superintendence over all courts in Delhi and confers jurisdiction on the District Courts to try cases in accordance with law, including the power to transfer cases from one district to another. Cases can also be transferred by the High Court under Sections 194, 407 and 483 of the Code of Criminal Procedure. Reliance is placed on Hari Vishnu Kamath v. Syed Ahmad Ishaque, (1955) 1 SCR 1104; Ranbir Yadav v. State of Bihar, (1995) 4 SCC 392; Kamlesh Kumar v. State of Jharkhand, (2013) 15 SCC 460; Ajay Singh v. State of Chhattisgarh, (2017) 3 SCC 330; and Achutananda Baidya v. Prafullya Kumar Gayan, (1997) 5 SCC 76., The transfer order dated 13 March 2020 was issued by the Delhi High Court in exercise of its administrative power of superintendence under Article 227, empowering the judges to pronounce judgments in reserved matters. The administrative order does not conflict with statutory provisions as it is exercised for administrative exigency without impinging upon the rights and interests of the parties. Section 462 of the Code of Criminal Procedure protects a finding, sentence or order challenged on the ground of jurisdiction of a Sessions division unless such error has occasioned failure of justice., In Padam Singh Thakur v. Madan Chauhan, 2016 SCC OnLine HP 4260, the conviction was challenged on the ground that the case was adjudicated by the Judicial Magistrate, Shimla instead of the Judicial Magistrate, Theog. The Himachal Pradesh High Court rejected the challenge, holding that no prejudice was caused to the accused and that Section 462 of the Code of Criminal Procedure saves the judgment even if the trial took place in a wrong Sessions division., In the present case, the learned Additional Sessions Judge presided over the trial, heard the final arguments and reserved the judgment. He thereafter pronounced the judgment under Section 235 of the Code of Criminal Procedure; no prejudice or failure of justice occurred. Section 465 of the Code of Criminal Procedure mandates that an irregularity which does not amount to illegality and does not cause prejudice to the accused can be cured., Section 465 provides that a finding, sentence or order cannot be set aside on the ground of any error, omission or irregularity unless there has been failure of justice. In Willie (William) Slaney, the Supreme Court defined illegality as a defect that strikes at the very substance of justice, such as refusal to give the accused a hearing, to allow defence, or to explain the charge; such illegalities are not protected by Section 465., In Purushottamdas Dalmia v. State of West Bengal, AIR 1961 SC 1589, the Supreme Court of India held that there are two types of jurisdiction: substantive jurisdiction to try particular offences and territorial jurisdiction for convenience. Lack of jurisdiction to try a particular offence renders the trial void, whereas irregularity arising from territorial jurisdiction does not automatically invalidate the proceedings., In Bhooraji, the Supreme Court of India held that a mere irregularity, which is not an illegality, can be cured under Section 465 of the Code of Criminal Procedure unless there has been failure of justice. The Court explained that Sections 460 and 461 catalogue irregularities and illegalities respectively, and that Section 462 saves proceedings conducted in a wrong Sessions division unless failure of justice is shown., It is evident that no failure of justice occurred in the present case; the predecessor judge presided over the trial, heard final arguments, authored and pronounced the judgment in accordance with Section 353 of the Code of Criminal Procedure. Even if an irregularity is presumed due to delay, it is curable under Section 465. In Jitender's case, the defect was an illegality that could not be cured because the judgment was pronounced in violation of Section 353, rendering it no judgment in the eyes of law. Here, the judgment passed by the predecessor judge is valid and legal, and the case was referred to the successor judge to pass the order on sentence under Section 235(2) of the Code of Criminal Procedure. The judgment of the Division Bench in Jitender's case is per incuriam and should be overruled., Section 326(1) of the Code of Criminal Procedure states that when a judge or magistrate, after having heard and recorded evidence, ceases to exercise jurisdiction and is succeeded by another judge or magistrate with such jurisdiction, the succeeding officer may act on the evidence recorded by his predecessor, or partly recorded by his predecessor and partly by himself. If the succeeding officer deems further examination of any witness necessary in the interests of justice, he may re‑summon the witness for further examination, cross‑examination and re‑examination, after which the witness shall be discharged., While Section 326(1) enables the successor judge or magistrate to proceed as described, it does not empower the successor to pronounce a judgment written by the predecessor without applying his mind. The provision applies when the criminal trial is pending and not terminated, whereas the matter in question was fixed for pronouncement of judgment. The Division Bench wrongly relied upon Section 326, which had no application to the facts., The Division Bench, while deciding the legality of Note 2 in the transfer/posting order, ought to have heard the Delhi High Court. However, it did not issue notice to the High Court, depriving it of an opportunity to defend its order, thereby violating the principle of audi alteram partem. Consequently, the order of the Division Bench is improper., Note 2 of the transfer/posting order was issued by the Delhi High Court exercising powers under Article 227 of the Constitution. If given an opportunity, the Delhi High Court could have defended Note 2 as an administrative order passed in exercise of its superintendence power, which forms part of the basic structure of the Constitution. The Division Bench failed to consider the High Court's power of superintendence under Article 227., The Division Bench overlooked the mandate of Section 462 of the Code of Criminal Procedure, which categorically states that no finding, sentence or order can be challenged on the ground of jurisdiction of any Sessions division. It also failed to consider Section 465, which states that convictions cannot be set aside merely on the ground of procedural irregularity unless there has been failure of justice., Since the relevant provisions of the Code of Criminal Procedure, Articles 227 of the Constitution and various Supreme Court of India judgments were overlooked by the Division Bench in Jitender's case, its judgment deserves to be overruled. The judgment is bad in law as the Division Bench did not consider the de facto doctrine discussed in Gokaraju Rangaraju., Section 357 of the Code of Criminal Procedure was introduced on the basis of recommendations made by the Law Commission in its 41st Report submitted in 1969, which discussed the erstwhile Section 545 of the Criminal Code extensively. The Report recognized that criminal courts had discretion to order or not to order payment of compensation. On the basis of the 41st Report, the Government of India introduced the Code of Criminal Procedure Bill, 1970, which revised Section 545 and introduced it as Section 357.
id_499	2	The Statement of Objects and Reasons underlying the Bill was that Section 545 only provided compensation when the Court imposed a fine and the amount of compensation was limited to the fine whereas under the new provision (Section 357), compensation can be awarded irrespective of whether the offence is punishable with fine and if fine is actually imposed. Section 357 empowers the Criminal Court to award compensation to the victim having due regard to the nature of injury, the manner of inflicting the same, the capacity of the accused to pay and other relevant factors. The Code of Criminal Procedure, 1973 incorporated Section 357 which states in its Objects that the provision was inserted as it intended to provide relief to the proper sections of the community., The amendments to the Code of Criminal Procedure, 2008 focused heavily on the rights of victims in a criminal trial, particularly in trials relating to sexual offences. Though the 2008 Amendment left Section 357 of the Code of Criminal Procedure unchanged, it introduced Section 357A of the Code of Criminal Procedure under which the Criminal Court is empowered to direct the State to pay compensation to the victim in cases where Section 357 is not adequate for rehabilitation or where cases end in acquittal or discharge. The insertion of Sections 357A and 357B in the Code of Criminal Procedure has triggered a new compensatory regime. Reference is made to Ankush Shivaji Gaikwad v. State of Maharashtra, (2013) 6 Supreme Court Cases 770., Section 357A was introduced in the Code of Criminal Procedure on recommendation of the 154th Law Commission Report to protect victims. The 154th Law Commission Report on the Code of Criminal Procedure devoted an entire chapter to 'Victimology' in which the growing emphasis on victims' rights in criminal trials was discussed extensively. Increasingly the attention of criminologists, penologists and reformers of the criminal justice system has been directed to victimology, control of victimisation and protection of victims of crimes. Crimes often entail substantive harms to people and not merely symbolic harm to the social order. Consequently the needs and rights of victims of crime should receive priority attention in the total response to crime. One recognised method of protection of victims is compensation to victims of crime. The needs of victims and their families are extensive and varied., The principles of victimology have foundations in Indian constitutional jurisprudence. The provisions on Fundamental Rights (Part III) and Directive Principles of State Policy (Part IV) form the bulwark for a new social order in which social and economic justice would blossom in the national life of the country (Article 38). Article 41 mandates inter alia that the State shall make effective provisions for 'securing the right to public assistance in cases of disablement and in other cases of undeserved want.' Article 51A makes it a fundamental duty of every Indian citizen, inter alia, 'to have compassion for living creatures and humanism.' If interpreted expansively, these provisions can form the constitutional underpinnings for victimology., However, in India the criminal law provides compensation to the victims and their dependants only in a limited manner. Section 357 of the Code of Criminal Procedure incorporates this concept to an extent and empowers the Criminal Courts to grant compensation to the victims., The question then is whether the plenitude of the power vested in the Criminal Courts under Section 357 and Section 357A, notwithstanding, the Courts can simply ignore the provisions or neglect the exercise of a power that is primarily meant to be exercised for the benefit of the victims of crimes that are so often committed though less frequently punished by the Courts. In other words, whether the Courts have a duty to advert to the question of awarding compensation to the victim and record reasons while granting or refusing relief to them., To sum up: While the award or refusal of compensation in a particular case may be within the Criminal Court's discretion, there exists a mandatory duty on the Criminal Court to apply its mind to the question in every criminal case. Application of mind to the question is best disclosed by recording reasons for awarding or refusing compensation. It is axiomatic that for any exercise involving application of mind, the Criminal Court ought to have the necessary material which it would evaluate to arrive at a fair and reasonable conclusion. The occasion to consider the question of award of compensation would logically arise only after the Criminal Court records a conviction of the accused. Capacity of the accused to pay, which constitutes an important aspect of any order under Section 357 of the Code of Criminal Procedure, would involve a certain enquiry albeit summary unless the facts emerging in the course of the trial are so clear that the Court considers it unnecessary to do so. Such an enquiry can precede an order on sentence to enable the Court to take a view, both on the question of sentence and compensation that it may in its wisdom decide to award to the victim or his/her family., In the Malimath Committee Report (March 2003), it was observed: Historically speaking, the criminal justice system seems to exist to protect the power, the privilege and the values of the elite sections in society. The way crimes are defined and the system is administered demonstrate that there is an element of truth in the above perception even in modern times. However, over the years the dominant function of criminal justice is projected to be protecting all citizens from harm to either their person or property, the assumption being that it is the primary duty of a State under rule of law. The State does this by depriving individuals of the power to take law into their own hands and using its power to satisfy the sense of revenge through appropriate sanctions. The State (and society), it was argued, is itself the victim when a citizen commits a crime and thereby questions its norms and authority. In the process of this transformation of torts to crimes, the focus of attention of the system shifted from the real victim who suffered the injury as a result of the failure of the State to the offender and how he is dealt with by the State., The principle of compensating victims of crime has for long been recognised by law though it is recognised more as a token relief rather than part of a punishment or substantial remedy. When the sentence of fine is imposed as the sole punishment or an additional punishment, the whole or part of it may be directed to be paid to the person having suffered loss or injury as per the discretion of the Criminal Court (Section 357 of the Code of Criminal Procedure). Compensation can be awarded only if the offender has been convicted of the offence with which he is charged., Sympathising with the plight of victims under criminal justice administration and taking advantage of the obligation to do complete justice under the Indian Constitution in defence of human rights, the Supreme Court of India and the High Courts in India have of late evolved the practice of awarding compensatory remedies not only in terms of money but also in terms of other appropriate reliefs and remedies. Medical justice for the Bhagalpur blinded victims, rehabilitative justice to the communal violence victims and compensatory justice to the Union Carbide victims are examples of this liberal package of reliefs and remedies forged by the Supreme Court of India. The recent decisions in Nilabati Behera v. State of Odisha (1993) 2 Supreme Court Cases 746 and in Chairman, Railway Board v. Chandrima Das are illustrative of this new trend of using constitutional jurisdiction to do justice to victims of crime. Substantial monetary compensations have been awarded against the instrumentalities of the State for failure to protect the rights of the victim., These decisions have clearly acknowledged the need for compensating victims of violent crimes irrespective of the fact whether offenders are apprehended or punished. The principle invoked is the obligation of the State to protect basic rights and to deliver justice to victims of crimes fairly and quickly. It is time that the criminal justice system takes note of these principles of the Indian Constitution and legislates on the subject suitably., On perusal of Section 357 of the Code of Criminal Procedure it is clear that rights under Section 357 are not foreclosed but continued in Section 357A of the Code of Criminal Procedure. The Criminal Courts are empowered to travel beyond Section 357 and award compensation where relief under Section 357 is inadequate or where the cases end in acquittal or discharge. This amendment has brought forth rehabilitation of victims to the forefront and it is the Criminal Court's duty to make such provisions operative and meaningful., Pursuant to the directions of the Division Bench of the High Court of Delhi in judgment dated 07 July 2008 in Criminal Appeal No. 5 of 2000 titled Khem Chand v. State of Delhi, the Delhi State Legal Services Authority is granting interim compensation to the victims under the Delhi Victims Compensation Scheme, 2011 at the initial stage for their rehabilitation on the recommendations of the Station House Officer of the case concerned and also by the Court concerned while disposing the matter. The nature and extent of victimisation has to be adequately understood considering the social and stark financial disparity amongst our citizens. The rights and rehabilitation needs of each victim have to be minutely gauged, recognised and redressed. Keeping this in consideration, the Delhi Victim Compensation Scheme, 2011 was promulgated which was replaced by the Delhi Victims Compensation Scheme, 2015 and subsequently by the Delhi Victims Compensation Scheme, 2018 notified on 27 June 2019., In State of Gujarat v. Hon'ble High Court of Gujarat, (1998) 7 Supreme Court Cases 392, the issue arose whether the Government should be permitted to deduct the expenses incurred for food and clothes from prisoners' wages. The Supreme Court of India allowed the same and observed that it is constructive thinking for the State to make appropriate law for diverting some portion of the income earned by the prisoners when they are in jail to be paid to deserving victims., The Supreme Court of India succinctly noted: A victim of crime cannot be a 'forgotten man' in the criminal justice system. It is he who has suffered the most. His family is ruined particularly in case of death and other bodily injury. This is apart from factors like loss of reputation, humiliation, etc. An honour which is lost or life which is snuffed out cannot be recompensed but monetary compensation will at least provide some solace., In Hari Singh v. Sukhbir Singh, (1988) 4 Supreme Court Cases 551, seven persons were convicted under Sections 307/149, 325/149, 323/149 and 148 of the Indian Penal Code and sentenced to rigorous imprisonment from one year to three years. The High Court acquitted two of the accused of all charges, and five of the accused of the offence under Section 307/149 IPC while maintaining their conviction and sentence under Sections 325/149, 323/149 and 148 IPC. They were released on probation of good conduct. Each accused was ordered to pay compensation of Rs. 2,500 to Joginder who was seriously injured and whose power of speech was permanently impaired. The Supreme Court of India deplored the failure of Courts in awarding compensation under Section 357 of the Code of Criminal Procedure. The Supreme Court of India recommended all the Courts to exercise the power available under Section 357 of the Code of Criminal Procedure liberally to meet ends of justice. The Supreme Court of India observed: Sub‑section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on the accused. In this case we are not concerned with sub‑section (1). We are concerned only with sub‑section (3). It is an important provision but Courts have seldom invoked it, perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to the victim who has suffered by the action of the accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well as reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We therefore recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way. The same position was reiterated by Courts in Manish Jalan v. State of Karnataka, (2008) 8 Supreme Court Cases 225; K.A. Abbas H.S.A. v. Sabu Joseph, (2010) 6 Supreme Court Cases 230 and Roy Fernandes v. State of Goa, (2012) 3 Supreme Court Cases 221., In Ankush Shivaji Gaikwad (supra), the Supreme Court of India reiterated the law laid down in Hari Singh's case and held that Section 357 confers a power coupled with a duty on the Courts to apply its mind to the question of awarding compensation in every criminal case. After noting a number of cases, the Court observed that Section 357 of the Code of Criminal Procedure confers a duty on the Court to apply its mind to the question of compensation in every criminal case. It necessarily follows that the Court must disclose that it has applied its mind to this question in every criminal case. The ignorant attitude of the lower judiciary was intolerable to the Supreme Court of India when it apparently observed: We regret to say that the trial Court and the High Court appear to have remained oblivious to the provisions of Section 357 of the Code of Criminal Procedure. The judgments under appeal betray ignorance of the courts below about the statutory provisions and the duty cast upon the courts. Remand at this distant point of time does not appear to be a good option either. This may not be a happy situation but having regard to the facts and the circumstances of the case and the time lag since the offence was committed, we conclude this chapter in the hope that the courts remain careful in future. The Supreme Court of India directed that the copy of the judgment be forwarded to the Registrars of all the High Courts for circulation among Judges handling criminal trials and hearing appeals., In Satya Prakash v. State, 2013 (3) Maharashtra Weekly Notes (Criminal) 373 (Delhi), the High Court of Delhi reiterated the same while deciding the scope of compensation under Sections 357 and 357A of the Code of Criminal Procedure to victims of motor accidents. This Court laid down the guidelines for awarding compensation by the Criminal Court to all victims of motor accident offences even if they are in receipt of compensation from the Motor Accident Claims Tribunal. Further the Court directed a summary inquiry to be conducted by the Criminal Court for ascertaining quantum of compensation by directing the Station House Officer of the police station to submit a Victim Impact Report., In Vikas Yadav v. State of Uttar Pradesh, 2015 SCC Online Delhi 7129, the Division Bench of the High Court of Delhi held that although theorising is one thing, practically carrying out what the Section mandates in order to achieve its true objective requires aid of the judiciary to form guidelines on the Scheme of Compensation under Section 357. There is huge cost of litigation even in criminal cases though comparatively criminal cases run for a lesser duration. The contributing factors in the increase is the fact that the accused who is in state custody is deemed to be innocent and therefore, all expenses of such person as long as he is in custody are borne by the State itself. At the end of the trial, Courts may ask the accused to pay for the expenses, which are surprisingly limited to the fine to be paid under Section 357. The litigants take advantage of such expenses borne by the State and the State ends up paying amount for trips to the hospital and other places of the accused. This fact was predominantly deprecated by the Division Bench in Vikas Yadav (supra), where the Court went to minute minutes of each penny spent on the accused during the entire trial and ordered the recovery of the same. The Division Bench imposed a fine of Rs. 50,00,000 on the accused and ordered it to be disbursed. The Supreme Court of India in appeal Vikas Yadav v. State of Uttar Pradesh, (2016) 9 Supreme Court Cases 541 upheld the compensation Scheme under Section 357 of the Code of Criminal Procedure and modified it by enhancing the fine and determining the compensation as per facts of the case, thereby reaffirming the compensation Scheme., The law in many jurisdictions, particularly in continental countries, recognises two types of rights of victims of crime: firstly, the victim's right to participate in criminal proceedings and secondly, the right to seek and receive compensation from the criminal court for injuries suffered as well as appropriate interim reliefs in the course of proceedings., In Suresh v. State of Haryana, (2015) 2 Supreme Court Cases 227, the Supreme Court of India interpreted Section 357 of the Code of Criminal Procedure to include interim compensation also. In a case where the State failed to protect the life of two, the Court observed: We are of the view that it is the duty of the courts, on taking cognisance of a criminal offence, to ascertain whether there is tangible material to show commission of crime, whether the victim is identifiable and whether the victim of crime needs immediate financial relief. On being satisfied on an application or on its own motion, the Court ought to direct grant of interim compensation, subject to final compensation being determined later. Such duty continues at every stage of a criminal case where compensation ought to be given and has not been given, irrespective of the application by the victim. Gravity of offence and need of victim are some of the guiding factors to be kept in mind, apart from such other factors as may be found relevant in the facts and circumstances of an individual case. We are also of the view that there is need to consider upward revision in the scale for compensation and pending such consideration to adopt the scale notified by the State of Kerala in its scheme, unless the scale awarded by any other State or Union Territory is higher. The States of Andhra Pradesh, Madhya Pradesh, Meghalaya and Telangana are directed to notify their schemes within one month from receipt of a copy of this order. We also direct that a copy of this judgment be forwarded to the National Judicial Academy so that all judicial officers in the country can be imparted requisite training to make the provision operative and meaningful. We determine the interim compensation payable for the two deaths to be rupees ten lakh, without prejudice to any other rights or remedies of the victim family in any other proceedings. Accordingly, while dismissing the appeal, we direct that the victim be paid interim compensation of rupees ten lakh. It will be payable by the Haryana State Legal Services Authority within one month from receipt of a copy of this order. If the funds are not available for the purpose with the said authority, the State of Haryana will make such funds available within one month from the date of receipt of a copy of this judgment and the Legal Services Authority will disburse the compensation within one month thereafter., In Ankush Shivaji Gaikwad (supra) the Supreme Court of India developed its position taken in Hari Singh (supra) and held that Section 357 of the Code of Criminal Procedure confers a power coupled with a duty on the Courts to apply its mind to the question of awarding compensation in every criminal case. The Supreme Court laid down the proposition that while the award or refusal of compensation in a particular case may be within the Court's discretion, there exists a mandatory duty on the Court to apply its mind to the question in every criminal case. Application of mind to the question is best disclosed by recording reasons for awarding or refusing compensation. The Court made application of Sections 357 and 357A of the Code of Criminal Procedure mandatory while sentencing the accused by directing the Courts to state the reasons for application or non‑application of Sections 357 or 357A before delivering the order on sentence. The Supreme Court, in Suresh (supra), categorically observed that Section 357A of the Code of Criminal Procedure was introduced on the recommendation of the 154th Law Commission Report with the sole purpose of ensuring protection to victims., Prof. G.S. Bajpai, Professor of Criminology and Criminal Justice, National Law University, Delhi, has submitted a research paper on the Victim Restitution Scheme. He also made oral submissions to assist this Court. Prof. Bajpai referred to the resolution passed by the General Assembly of the United Nations titled United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power on 11 November 1985. Clause 8 of the United Nations Declaration deals with restitution to the victims of crime. It is submitted that crime has numerous impacts on the victim including physical, financial, social and sociological impact. Prof. Bajpai has suggested the Victim Restitution Scheme, according to which the Investigating Officer should prepare a report relating to the loss or injury suffered by the victim and the financial capacity of the accused during the course of investigation., On 29 November 1985, the General Assembly of the United Nations adopted the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power which emphasized the need to set norms and minimum standards for protection of victims of crime. The declaration recognised four major components of rights of victims of crime, namely, access to justice and fair treatment; restitution; compensation and assistance. Section 357A of the Code of Criminal Procedure was incorporated to give effect to the United Nations Declaration., Every victim of crime undergoes immense physical, emotional and mental trauma apart from economic losses. The State, as a custodian of all Fundamental Constitutional Rights, is not only legally but also morally and socially bound to come to the rescue of victims and provide them all help so that they can overcome their trauma, both emotionally as well as financially. The nature and extent of victimisation has to be adequately understood considering the social and stark financial disparity amongst the citizens. The rights and rehabilitation needs of each victim have to be minutely gauged, recognised and redressed. They deserve attention and help., In Khem Chand v. State, Criminal Appeal No. 5 of 2000, this Court passed directions for grant of interim compensation to the victims at the initial stage for rehabilitation whereupon the District Legal Services Authority granted interim compensation to the victims and established a cell to provide counselling to the victims of sexual assault. Victim Compensation Scheme, 2011 was notified which was later replaced by Delhi Victim Compensation Scheme, 2015 and then again replaced by Delhi Victim Compensation Scheme, 2018 which is in force now. In Nipun Saxena v. Union of India, (2019) 2 Supreme Court Cases 703 the Supreme Court passed various directions with respect to the compensation to the victims of crime in pursuance to which Delhi Victim Compensation Scheme, 2015 was replaced by Delhi Victim Compensation Scheme, 2018. Delhi Victim Compensation Scheme, 2018 contains two parts. Part I deals with the victims of offences categorized in the schedule whereas Part II deals with women victims/survivors of sexual assault and other crimes. The salient features of the Delhi Victim Compensation Scheme, 2018 are as follows: (i) In every matter wherein the convict is not in position to compensate the victim, the Trial Court may consider the same and with reasons in writing may recommend the matter to the District Legal Services Authority. (ii) Except Special Courts designated as Children’s Court/POCSO Court, the Trial Court while making the recommendation cannot quantify the quantum of compensation. The POCSO Court is authorised by law laid down under Section 33(8) of the Protection of Children from Sexual Offences Act, 2012 to quantify the quantum. (iii) The recommendation may be made for grant of compensation according to the Delhi Victim Compensation Scheme, 2018. The Legal Services Authority is not authorised to grant the compensation beyond the limit provided in the Scheme. (iv) In matters resulting in acquittal or discharge, similar recommendation may be made in case the Trial Court feels the need of rehabilitation of the victim provided the victim can be considered as a victim of an offence as defined in the scheme. (v) In cases of untraced matters or wherein the identity of the offender cannot be established, the victim/dependants may be referred to the District Legal Services Authority to move an application for grant of compensation. (vi) At any stage of the trial, the Trial Court may also recommend/refer the matter for grant of Interim Compensation. The interim compensation can only be quantified by the POCSO Court. (vii) The compensation can only be granted in the categories mentioned in the Schedule to the Scheme in Part I and Part II. The other matters cannot be considered. Legal Services Authorities are not authorised/empowered to go beyond the Scheme. (viii) Compensation may be recommended in State Cases i.e. matter on which cognisance has been taken on basis of Police Report (for Interim, this may be considered as Institution on basis of FIR) or on complaint cases (only when the accused has been summoned). (ix) In Part I of the Scheme, it has been categorically provided that cases covered under the Motor Vehicles Act, 1988 wherein compensation is to be awarded by Motor Accidents Claims Tribunal shall not be covered under the Scheme. (x) In case the victim/dependents have already been granted compensation under any other governmental scheme, the District Legal Services Authority does not have any authority to grant compensation under Part I and under Part II, the quantum so granted has to be considered/adjusted accordingly. (xi) Under the purview of the Scheme as envisaged in Part I, it is not the offence but the injury suffered by the victim which forms the basis of recommendation for grant of compensation. (xii) The Scheme also provides for factors to be considered while awarding compensation in both Part I and Part II which have to be considered by the District Victim Compensation Committee for grant of compensation. In case none of the factors are satisfied, the committee is not empowered to grant the compensation. (xiii) The Scheme does not provide for compensation in case of loss of property rather it focuses on physical or mental injury sustained by victim and similarly by the dependents in case of loss of life. Therefore, the matter wherein the victim has suffered loss of only movable/immovable property may not be recommended/referred for compensation., The inquiry should be conducted by the District Legal Services Authority with the assistance of Delhi Police and the Inquiry Report with respect to the impact of the crime on the victim as well as with respect to the financial capacity of the accused be filed by the District Legal Services Authority before the Court. It is submitted that the format of the affidavit of the victim with respect to the impact of the crime and the affidavit of the accused with respect to the financial capacity be formulated.
id_499	3	The Trial Court, after holding the accused guilty of the offence, should direct the aforesaid affidavits to be filed within ten days and the District Legal Services Authority be directed to conduct a preliminary inquiry into the matter and submit a report to the Trial Court within thirty days. The affidavit of the victim relating to the impact of the crime and the affidavit of the accused with respect to his financial capacity should be formulated and called for by the Trial Court after the conviction of the accused. Mr. Kanhaiya Singhal, senior counsel for the appellants, has suggested the formats of the affidavits in his written submissions., Constitution of India Article 227 – Power of superintendence over all courts by the High Court. Every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. Without prejudice to the generality of the foregoing provision, the High Court may: call for returns from such courts; make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts. The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts and to attorneys, advocates and pleaders practicing therein, provided that any rules made, forms prescribed, or tables settled shall not be inconsistent with any law in force and shall require the previous approval of the Governor. Nothing in this article shall be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces., Constitution of India Article 235 – Control over subordinate courts. The control over district courts and courts subordinate thereto, including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of a State and holding any post inferior to the post of district judge, shall be vested in the High Court. Nothing in this article shall be construed as taking away from any such person any right of appeal which he may have under the law regulating the conditions of his service or as authorising the High Court to deal with him otherwise than in accordance with the conditions of his service prescribed under such law., Code of Criminal Procedure Section 194 – Additional and Assistant Sessions Judges to try cases made over to them. An Additional Sessions Judge or Assistant Sessions Judge shall try such cases as the Sessions Judge of the division may, by general or special order, make over to him for trial or as the High Court may, by special order, direct him to try. Section 265F – Judgment of the Court. The Trial Court shall deliver its judgment in terms of Section 265E in open court and the judgment shall be signed by the presiding officer of the Trial Court., Code of Criminal Procedure Section 326 – Conviction or commitment on evidence partly recorded by one Magistrate and partly by another. (1) Whenever any Judge or Magistrate, after having heard and recorded the whole or any part of the evidence in any inquiry or trial, ceases to exercise jurisdiction therein and is succeeded by another Judge or Magistrate who exercises such jurisdiction, the succeeding Judge or Magistrate may act on the evidence recorded by his predecessor, or partly recorded by his predecessor and partly by himself, provided that if the succeeding Judge or Magistrate is of the opinion that further examination of any witness whose evidence has already been recorded is necessary in the interests of justice, he may re‑summon such witness and, after further examination, cross‑examination and re‑examination, discharge the witness. (2) When a case is transferred under the provisions of this Code from one judge to another or from one Magistrate to another, the former shall be deemed to cease to exercise jurisdiction and to be succeeded by the latter within the meaning of sub‑section (1). (3) Nothing in this section applies to summary trials or to cases in which proceedings have been stayed under Section 322 or have been submitted to a superior Magistrate under Section 325., Code of Criminal Procedure Section 353 – Judgment. The judgment in every trial in any criminal court of original jurisdiction shall be pronounced in open court by the presiding officer immediately after the termination of the trial or at a later time with notice to the parties or their pleaders, either by delivering the whole judgment, by reading out the whole judgment, or by reading out the operative part of the judgment and explaining its substance in a language understood by the accused or his pleader. Where the judgment is delivered by delivering the whole judgment, the presiding officer shall cause it to be taken down in shorthand, sign the transcript and each page as soon as it is ready, and date the delivery. Where the judgment or its operative part is read out, it shall be dated and signed by the presiding officer in open court, and if not written in his own hand, each page shall be signed by him. When the judgment is pronounced by reading out the operative part, the whole judgment or a copy shall be immediately made available to the parties or their pleaders free of cost. If the accused is in custody, he shall be brought up to hear the judgment; if not in custody, he shall be required to attend to hear the judgment, except where personal attendance during the trial was dispensed with and the sentence is a fine only or he is acquitted. Where there are multiple accused and one or more do not attend on the date of pronouncement, the presiding officer may pronounce the judgment notwithstanding their absence to avoid undue delay. No judgment delivered by any criminal court shall be deemed invalid solely because of the absence of any party or pleader on the notified day or place, or any omission or defect in serving notice. Nothing in this section limits the provisions of Section 465., Code of Criminal Procedure Section 354 – Language and contents of judgment. Except as otherwise expressly provided by the Code, every judgment referred to in Section 353 shall be written in the language of the court; shall contain the points for determination, the decision thereon and the reasons for the decision; shall specify the offence (if any) and the section of the Indian Penal Code, 1860, or other law under which the accused is convicted and the punishment to which he is sentenced; and if it is a judgment of acquittal, shall state the offence of which the accused is acquitted and direct that he be set at liberty., Code of Criminal Procedure Section 357 – Order to pay compensation. When a court imposes a sentence of fine or a sentence (including a death sentence) of which fine forms a part, the court may, when passing judgment, order the whole or any part of the fine recovered to be applied: (a) in defraying the expenses properly incurred in the prosecution; (b) in payment to any person of compensation for any loss or injury caused by the offence, when compensation is, in the opinion of the court, recoverable by such person in a civil court; (c) when any person is convicted of an offence causing death of another person or abetting such offence, in paying compensation to persons entitled to recover damages under the Fatal Accidents Act, 1855; or (d) when any person is convicted of an offence involving theft, criminal misappropriation, criminal breach of trust, cheating, or dishonestly receiving or retaining stolen property, in compensating any bona‑fide purchaser of such property for the loss if the property is restored to the rightful owner. If the fine is imposed in a case subject to appeal, no such payment shall be made before the period for filing the appeal has elapsed, or, if an appeal is presented, before the decision of the appeal. When a court imposes a sentence of which fine does not form a part, the court may, when passing judgment, order the accused to pay, by way of compensation, such amount as may be specified to the person who has suffered loss or injury. An order under this section may also be made by an appellate court, the High Court or the Court of Session when exercising its powers of revision. At the time of awarding compensation in any subsequent civil suit relating to the same matter, the court shall take into account any sum paid or recovered as compensation under this section., Code of Criminal Procedure Section 357A – Victim Compensation Scheme. Every State Government, in coordination with the Central Government, shall prepare a scheme for providing funds for compensation to the victim or his dependents who have suffered loss or injury as a result of the crime and require rehabilitation. Whenever a recommendation is made by the court for compensation, the District Legal Services Authority or the State Legal Services Authority, as the case may be, shall decide the quantum of compensation to be awarded under the scheme. If the trial court, at the conclusion of the trial, is satisfied that the compensation awarded under Section 357 is not adequate for rehabilitation, or where the case ends in acquittal or discharge and the victim needs rehabilitation, it may make a recommendation for compensation. Where the offender is not traced or identified but the victim is identified and no trial takes place, the victim or his dependents may make an application to the State or the District Legal Services Authority for award of compensation. Upon receipt of such recommendations or application, the State or the District Legal Services Authority shall, after due enquiry, award adequate compensation within two months. To alleviate the suffering of the victim, the authority may order immediate first‑aid facilities or medical benefits to be made available free of cost on a certificate of a police officer not below the rank of officer in charge of the police station or a magistrate of the area concerned, or any other interim relief as the appropriate authority deems fit., Code of Criminal Procedure Section 407 – Power of High Court to transfer cases and appeals. Whenever it appears to the High Court that a fair and impartial inquiry or trial cannot be had in any criminal court subordinate thereto; or that a question of law of unusual difficulty is likely to arise; or that an order under this section is required by any provision of the Code; or that transfer will tend to the general convenience of the parties or witnesses or is expedient for the ends of justice, the High Court may order: (i) that any offence be inquired into or tried by any court not qualified under Sections 177 to 185 but otherwise competent; (ii) that any particular case or appeal, or class of cases or appeals, be transferred from a criminal court subordinate to its authority to any other such criminal court of equal or superior jurisdiction; (iii) that any particular case be committed for trial to a Court of Session; or (iv) that any particular case or appeal be transferred to and tried before the High Court itself. The High Court may act on the report of the lower court, on an application of an interested party, or on its own initiative, provided that no application shall lie to the High Court for transferring a case from one criminal court to another in the same sessions division unless an application for such transfer has been made to the Sessions Judge and rejected by him. Every application for an order under this subsection shall be made by motion, which, except when the applicant is the Advocate‑General of the State, shall be supported by affidavit or affirmation. When such an application is made by an accused person, the High Court may direct him to execute a bond, with or without sureties, for the payment of any compensation which the High Court may award under sub‑section (7). Every accused person making such application shall give notice in writing to the Public Prosecutor together with a copy of the grounds; and no order shall be made on the merits of the application unless at least twenty‑four hours have elapsed between the notice and the hearing. Where the application is for transfer of a case or appeal from any subordinate court, the High Court may, if satisfied that it is necessary in the interests of justice, order that pending disposal of the application, the proceedings in the subordinate court shall be stayed on such terms as the High Court may think fit, provided that such stay shall not affect the subordinate court’s power of remand under Section 309. If an application for an order under this subsection is dismissed, the High Court may, if it is of the opinion that the application was frivolous or vexatious, order the applicant to pay compensation to any person who has opposed the application, not exceeding one thousand rupees. When the High Court orders that a case be transferred from any court for trial before itself, it shall observe in such trial the same procedure which that court would have observed if the case had not been transferred. Nothing in this section shall be deemed to affect any order of Government under Section 197., Code of Criminal Procedure Section 460 – Irregularities which do not vitiate proceedings. If any magistrate not empowered by law to do any of the following acts – issue a search‑warrant under Section 94; order, under Section 155, the police to investigate an offence; hold an inquest under Section 176; issue process under Section 187 for the apprehension of a person within his local jurisdiction who has committed an offence outside the limits of such jurisdiction; take cognizance of an offence under clause (a) or (b) of sub‑section (1) of Section 190; make over a case under sub‑section (2) of Section 192; tender a pardon under Section 306; recall a case and try it himself under Section 410; or sell property under Section 458 or Section 459, erroneously in good faith does that thing, his proceedings shall not be set aside merely on the ground of his not being so empowered., Code of Criminal Procedure Section 461 – Irregularities which vitiate proceedings. If any magistrate, not being empowered by law in this behalf, does any of the following acts – attach and sell property under Section 83; issue a search‑warrant for a document, parcel or other thing in the custody of a postal or telegraph authority; demand security to keep the peace; demand security for good behaviour; discharge a person lawfully bound to be of good behaviour; cancel a bond to keep the peace; make an order for maintenance; make an order under Section 133 as to a local nuisance; prohibit, under Section 143, the repetition or continuance of a public nuisance; make an order under Part C or Part D of Chapter X; take cognizance of an offence under clause (c) of sub‑section (1) of Section 190; try an offender; try an offender summarily; pass a sentence, under Section 325, on proceedings recorded by another magistrate; decide an appeal; call, under Section 397, for proceedings; or revise an order passed under Section 446, his proceedings shall be void., Code of Criminal Procedure Section 462 – Proceedings in wrong place. No finding, sentence or order of any criminal court shall be set aside merely on the ground that the inquiry, trial or other proceedings in which it was arrived at took place in a wrong sessions division, district, sub‑division or other local area, unless such error has occasioned a failure of justice., Code of Criminal Procedure Section 465 – Finding or sentence reversible by reason of error, omission or irregularity. Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered by a court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry, unless in the opinion of that court a failure of justice has in fact been occasioned thereby. In determining whether any error, omission or irregularity has occasioned a failure of justice, the court shall have regard to whether the objection could and should have been raised at an earlier stage in the proceedings., Code of Criminal Procedure Section 483 – Duty of High Court to exercise continuous superintendence over Courts of Judicial Magistrates. Every High Court shall exercise its superintendence over the Courts of Judicial Magistrates subordinate to it so as to ensure an expeditious and proper disposal of cases by such magistrates., In Hari Vishnu Kamath v. Syed Ahmad Ishaque, (1955) 1 SCR 1104, the Supreme Court of India held that Article 227 of the Constitution confers the power of superintendence to the High Courts, both on judicial and administrative sides. The Court observed that election tribunals are subject to the superintendence of the High Courts under Article 227 and that such superintendence is both judicial and administrative. The Court also noted that, while a writ of certiorari under Article 226 allows the High Court only to annul the decision of a tribunal, under Article 227 the High Court may both annul the decision and issue further directions. Accordingly, the application of the appellant for a writ of certiorari and other reliefs was maintainable under Articles 226 and 227 of the Constitution., In Ranbir Yadav v. State of Bihar, (1995) 4 SCC 392, the Supreme Court of India dismissed the challenge to the transfer of a case by the High Court on administrative grounds, holding that the High Court is empowered to transfer a case on both administrative and judicial sides and that both powers coexist. The Court observed that as long as the power is exercised purely for administrative exigency without impinging upon or prejudicially affecting the rights or interests of the parties to any judicial proceeding, there is no reason to hold that administrative powers must yield to judicial powers. The Court further noted that invoking its power of superintendence, rather than judicial powers under Section 407 of the Code, allowed the High Court to redress the grievances of the accused and others connected with the trial with utmost dispatch., In Achutananda Baidya v. Prafullya Kumar Gayen, (1997) 5 SCC 76, the Supreme Court of India held that the High Court has both administrative and judicial power of superintendence under Article 227 of the Constitution. The Court explained that the power of superintendence under Article 227 is not confined to administrative superintendence but also includes judicial review. The High Court’s duty under Article 227 is to ensure that courts and tribunals inferior to it have performed their duties. The Court affirmed that the High Court may interfere under Article 227 in cases of erroneous assumption, acting beyond jurisdiction, refusal to exercise jurisdiction, error of law apparent on record, arbitrary or capricious exercise of authority, patent procedural error, or a perverse finding based on no material, resulting in manifest injustice. Regarding findings of fact, the High Court should not quash a subordinate court’s judgment merely because its finding of fact was erroneous, but may interfere if the subordinate court reached a conclusion without any evidence or by manifest misreading of the evidence, thereby indulging in improper exercise of jurisdiction or arriving at a perverse conclusion., In Kamlesh Kumar v. State of Jharkhand, (2013) 15 SCC 460, the Supreme Court of India rejected the challenge to the transfer of a case by the High Court on administrative grounds, holding that the High Court can transfer a case by exercising its administrative power of superintendence under Article 227 read with Article 235 of the Constitution. The Court noted that the High Court does have the power to transfer cases and appeals under Section 407 of the Code of Criminal Procedure, which is essentially a judicial power, and that Section 407(1)(c) allows transfer of a case to a Court of Session when it will tend to the general convenience of the parties or witnesses or is expedient for the ends of justice. The Court affirmed that this does not preclude the High Court from transferring cases by exercising its administrative power of superintendence under Article 227., In Ajay Singh v. State of Chhattisgarh, (2017) 3 SCC 330, the Supreme Court of India rejected the challenge to the transfer of a case by the High Court on administrative grounds. The Court observed that the High Court, on the administrative side, had transferred the case to the learned Sessions Judge, thereby conferring jurisdiction on the trial court to try the case under the Code of Criminal Procedure. The Court held that there was no illegality, as there was no judgment on record but only an order‑sheet. The Court further emphasized that a trial judge has a lawful duty to record evidence in the prescribed manner and pronounce the judgment as provided under the Code, and that errors or mistakes are to be rectified by the appellate court in exercise of its error jurisdiction., In S. J. Chaudhri v. State, 2006 SCC OnLine Del 797, the Division Bench of the High Court rejected the challenge to the transfer of a case by the High Court from one Session Court to another on administrative grounds.
id_499	4	This is not a case of transfer simplicitor from one Sessions Judge to another, but a case where arguments stand more or less concluded in the Court of a particular Sessions Judge and the Honourable Chief Justice of the High Court on the administrative side has deemed it expedient, for the ends of justice, to order that the Sessions Judge who has heard the arguments in extenso pronounce judgment in the case. We say so on the basis of the records which have been scrutinised by us, and on such scrutiny it was found that arguments in the case had been heard by Ms. Mamta Sehgal, Additional Sessions Judge on more than thirty different dates, i.e. on 27‑10‑2004, 1‑11‑2004, 14‑12‑2004, 15‑12‑2004, 9‑11‑2005 and 18‑11‑2005. To say that arguments had been more or less completed cannot, in such circumstances, be stated to be incorrect. This being the position and the complainant (father of the deceased) being over 90 years of age, in our considered opinion, it cannot be said that the orders passed by the Honourable Chief Justice on the administrative side were uncalled for or in any manner prejudicial to the petitioner or accused., In Ranbir Yadav v. State of Bihar, (1995) 4 SCC 392, the High Court exercised the power of transfer on a petition filed by the accused from jail, inter alia, complaining that they could not be accommodated in the courtroom, as a result of which some of them had to remain outside. This order was challenged before the Supreme Court on the ground that administrative power could not be exercised when judicial power was not only available and operational, but was equally effective and efficacious. The Supreme Court held that so long as power can be and is exercised purely for administrative exigency without impinging upon and prejudicially affecting the rights or interests of the parties to any judicial proceedings, it could not be said that administrative powers must yield to judicial powers simply because they happened to co‑exist in a given case., Applying the ratio of the decision in Ranbir Yadav’s case (supra), it cannot be said that the exercise of administrative power in the instant case by the head of the High Court was not supported by any good or cogent reason or that the same was vexatious to the accused in any manner. Here is a case where the father of the deceased has been in pursuit of justice for the last 23 years. He is over 94 years of age and has yet to come to terms with his son’s brutal murder. Arguments have been heard at length on over 30 dates by a Sessions Judge with whom the case has been pending for the last over 5 years. Yet the course of justice is sought to be obstructed by the present transfer petition praying for re‑transfer of the case to a Sessions Judge who will have to hear arguments from the scratch. Should such a prayer be entertained at the behest of the accused? We are of the considered view that the answer must be negative, for any exercise of powers as contained under Sections 407 and 482 of the Code of Criminal Procedure for the aforesaid purpose would not only further delay the disposal of the case, which has been pending already for over 23 years, but would cause untold hardship to the complainant, apart from the fact that the State through the Central Bureau of Investigation would have to argue the matter de novo., Before parting with the order, we deem it expedient to refer to the contention of the petitioner that fair and impartial justice will not be done to him if the matter is heard and decided by Ms. Mamta Sehgal. To say the least, we find no reason for such an apprehension on the part of the petitioner. Merely alleging that he will not get impartial justice is wholly insufficient. The question is whether the petitioner can be said to entertain reasonably an apprehension that he would not get justice. It is not any and every apprehension in the mind of the accused that can be termed as reasonable apprehension. Apprehension must not only be entertained, but must also appear to the Court to be reasonable and justified by facts and circumstances. The petitioner did not entertain any apprehension from the year 2001 when the matter was posted with Ms. Mamta Sehgal, Additional Sessions Judge, till the year 2006 when his posting was changed. But now, all of a sudden, he expresses apprehension that the learned Additional Sessions Judge may not render impartial justice. In the attendant circumstances and in view of the fact that no case of any real bias has been made out by him, the answer must be negative. It cannot be lost sight of that, though assurance of a fair trial is the final imperative of the dispensation of justice, hyper‑sensitivity cannot be allowed to impede the course of justice to such an extent that the resultant delay results in failure of justice. Normally the complainant has a right to choose any Court having jurisdiction and the accused cannot dictate where the case against him should be tried., In Willie (William) Slaney v. State of Madhya Pradesh, (1955) 2 SCR 1140, the Supreme Court held that every error or omission in the trial would not vitiate the trial unless the accused can show substantial prejudice. The Code of Criminal Procedure is a code of procedure and, like all procedural laws, is designed to further the ends of justice and not to frustrate them by the introduction of endless technicalities. The object of the Code is to ensure that an accused person gets a full and fair trial along certain well‑established and well‑understood lines that accord with our notions of natural justice. If he is tried by a competent court, is told and clearly understands the nature of the offence for which he is being tried, the case against him is fully and fairly explained to him and he is afforded a full and fair opportunity of defending himself, then, provided there is substantial compliance with the outward forms of the law, mere mistakes in procedure, mere inconsequential errors and omissions in the trial are regarded as venial by the Code and the trial is not vitiated unless the accused can show substantial prejudice., The Court further observed that when a trial is conducted in a manner different from that prescribed by the Code, the trial is bad and no question of curing an irregularity arises; but if the trial is conducted substantially in the manner prescribed by the Code, but some irregularity occurs, the irregularity can be cured under Section 537, because the irregularity involves, as must nearly always be the case, a breach of one or more of the very comprehensive provisions of the Code. It is obvious that the question of curing an irregularity can only arise when one or more of the express provisions of the Code is violated. The question is whether the departure is so violent as to strike at the root of the trial and make it no trial at all or is of a less vital character. The matter usually narrows down to one of prejudice. The courts must be guided by the plain provisions of the Code without straining its language wherever there is an express provision., In Pulukuri Kotayya v. King‑Emperor, (1947) LR 74 IA 65, the Privy Council held that the distinction drawn in many Indian cases between an illegality and an irregularity is one of degree rather than of kind. If the trial is conducted substantially in the manner prescribed by the Code, but some irregularity occurs, the irregularity can be cured under Section 537, and nonetheless so because the irregularity involves a breach of one or more of the comprehensive provisions of the Code. The distinction between an illegality and an irregularity is therefore one of degree., The Constitution Bench of the Supreme Court, in Willie (William) Slaney v. State of Madhya Pradesh (supra), held that the irregularity is curable if it has not resulted in failure of justice, but the irregularity is not curable if it has resulted in failure of justice. The Court explained that the issue is not whether an express provision of the Code is violated, but what the consequences of such disregard are: whether it results in an illegality that strikes at the root of the trial and cannot be cured, or an irregularity that is curable., In Darbara Singh v. State of Punjab, (2012) 10 SCC 476, the Supreme Court held that failure of justice means serious prejudice caused to the accused. Failure of justice is an extremely pliable expression which can be made to fit any situation, but the court must endeavour to find the truth. There would be failure of justice not only by unjust conviction, but also by acquittal of the guilty as a result of unjust failure to produce requisite evidence. The accused must show that serious prejudice has been caused to him with respect to investigation or trial, and that such prejudice has defeated the rights available to him under criminal jurisprudence., The Supreme Court, in State of Madhya Pradesh v. Bhooraji, (2001) 7 SCC 679, held that the irregularity of the Sessions Court taking cognizance of the offence without the case being committed has not caused any prejudice to the accused. A de novo trial should be the last resort and only when such a course becomes desperately indispensable, limited to the extreme exigency to avert a failure of justice. Any omission or illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial, as the appellate court has plenary powers to re‑evaluate the evidence and, if necessary, direct additional evidence to be taken., In Hanumant Dass v. Vinay Kumar, (1982) 2 SCC 177, the Supreme Court rejected the challenge to the conviction on the ground that the case was transferred to a Court which did not have territorial jurisdiction, as it had not resulted in failure of justice. The Court held that the judgment of the High Court could not be set aside unless the appellant showed that there had been failure of justice., In State of Karnataka v. Kuppuswamy Gownder, (1987) 2 SCC 74, the matter was transferred after framing of charge by the Principal Sessions Judge from one Sessions Judge to another by a distribution memo without an order under Sections 407 or 194 of the Code of Criminal Procedure. The High Court set aside the conviction on the ground of irregularity, but the Supreme Court held that the irregularity in the procedure had not resulted in failure of justice and therefore the conviction could not be set aside. Section 462 of the Code of Criminal Procedure provides that a finding or sentence passed by a court of competent jurisdiction could not be set aside merely on the ground of irregularity if no prejudice is caused to the accused., In Purushottamdas Dalmia v. State of West Bengal, (1962) 2 SCR 101, the Supreme Court explained that there are two types of jurisdiction: the power of a Court to try a particular kind of offence, and territorial jurisdiction, which is provided for convenience. If a Court has no jurisdiction to try a particular offence, the trial is void. Territorial jurisdiction, however, is a matter of convenience and does not, by itself, invalidate a trial unless it results in failure of justice, as provided in Section 531 of the Code of Criminal Procedure.
id_499	5	It is provided in Section 177 that an offence shall ordinarily be tried by a court within the local limits of whose jurisdiction it is committed. In Ram Chandra Prasad v. State of Bihar, (1962) 2 Supreme Court Reports 50, the Supreme Court of India rejected the objection that the Court did not have territorial jurisdiction on the ground that it had not resulted in failure of justice. The relevant portion of the judgment states: In view of Section 531 of the Code of Criminal Procedure, the order of the Special Judge, Patna, is not to be set aside on the ground of his having no territorial jurisdiction to try this case, when no failure of justice has actually taken place. It was contended that Section 531 of the Code of Criminal Procedure is not applicable in view of sub‑section (1) of Section 7 and Section 10 of the Criminal Law Amendment Act. The Court held that the former provision simply lays down that such offences shall be triable by Special Judges and this provision has not been offended. Section 10 provides that cases triable by a Special Judge under Section 7 and pending before a Magistrate immediately before the commencement of the Act shall be forwarded for trial to the Special Judge having jurisdiction over such cases. There is nothing in this section which leads to the non‑application of Section 531 of the Code of Criminal Procedure., In Padam Singh Thakur v. Madan Chauhan, 2016 Supreme Court of India OnLine Himachal Pradesh 4260, the conviction was challenged on the ground that the case was adjudicated by the Judicial Magistrate, Shimla whereas it should have been tried by the Judicial Magistrate, Theog. The Himachal Pradesh High Court rejected the challenge on the ground that no prejudice whatsoever was caused to the accused. The Himachal Pradesh High Court held that Section 462 of the Code of Criminal Procedure saves judgments if the trial took place in a wrong Sessions Division. The judgment observed that the expression ‘failure of justice’ may appear as an etymological chameleon and the Court must examine whether it is truly a failure of justice or merely a camouflage. Justice is a virtue that transcends all barriers; neither procedural rules nor technicalities of law can stand in its way., In Bharti Arora v. State of Haryana, (2011) 1 Report of the Criminal Law 513 (2), the Trial Judge prepared and signed a judgment but could not pronounce it because the accused did not appear before the court despite multiple adjournments. The Trial Judge signed the judgment and kept it in a sealed cover to be pronounced by the successor Judge, who later pronounced the judgment. The Punjab and Haryana High Court held that failure to comply with Section 353 of the Code of Criminal Procedure is a procedural irregularity which is curable unless it occasions failure of justice., The relevant portion of the judgment states: Considering the provisions of Sections 353(7) and 465 of the Code of Criminal Procedure collectively, it transpires that the Presiding Officer was within the ambit of propriety to have pronounced the judgment there, and then on any of the dates after 22 May 2008. By that date all proceedings had concluded, including final arguments, and the case had been fixed for passing of orders for 24 May 2008. The petitioner, while giving one excuse after another, did not appear thereby frustrating the process of the Court and the process of law. It was held that there was no bar, prohibition, hindrance or obstacle for the trial Court to adopt the measure of signing the judgment, affixing a date, and putting it in a sealed cover to be pronounced by the successor Presiding Officer. No provision debars the trial Court from adopting this procedure, and therefore there is no illegality in the conduct of the trial Court. The judgment represents the finalisation of trial of an accused. The Code of Criminal Procedure contemplates that the judgment should be complete in all respects at the time of pronouncement. On pronouncement a copy must be supplied to the accused without delay. The Code is designed to further the ends of justice and not to frustrate them by endless technicalities. Substantial compliance with the requirements of law means that a mere procedural irregularity does not vitiate the trial unless it results in miscarriage of justice. When a Judicial Officer signs the order or judgment, it becomes final as far as he is concerned; pronouncement in open court thereafter remains only a formality to give notice of disposal of the case. In the absence of a specific statutory provision, subordinate courts should not plead helplessness; they may adopt procedures in the interest of justice provided serious prejudice is not caused. There is no legal prohibition that a judgment or order prepared and signed by a Judicial Officer can be pronounced only by him. Pronouncement by a successor Officer does not prejudice the accused and is covered by Section 465 of the Code of Criminal Procedure. A combined reading of sub‑sections (7) and (8) of Section 353 indicates that non‑compliance with Section 353 does not render a judgment invalid unless it occasions failure of justice. The principle is that mere non‑compliance with Section 353, which requires a Judge to pronounce and sign the judgment in open court, will not render the judgment illegal. Procedural irregularity is curable., In Gokaraju Rangaraju v. State of Andhra Pradesh, (1981) 3 Supreme Court Cases 132, while considering the effect of judgments pronounced by judges whose appointments were later quashed, the Supreme Court of India resorted to the de facto doctrine and held: A judge, de facto, is one who holds office under colour of lawful authority though his appointment is defective. Whatever the defect of his title, judgments pronounced by him and acts done by him when he was clothed with the powers of the office, albeit unlawfully, have the same efficacy as judgments pronounced and acts done by a judge de jure. The doctrine is born of necessity and public policy to prevent needless confusion. The defective appointment of a de facto judge may be questioned directly in a proceeding to which he is a party but cannot be questioned in litigation between private litigants. Thus, the rule against collateral attack on the validity of judicial appointments stands. The twentieth amendment of the Constitution applied the de facto doctrine to remove any suspicion of illegality attached to judgments, decrees, sentences or orders passed by certain District Judges appointed before 1966 otherwise than in accordance with Articles 233 and 235 of the Constitution. The Court further held that the de facto doctrine furnishes an answer to submissions based on Section 9 of the Code of Criminal Procedure and Article 21 of the Constitution. Judges who discharged functions under colour of lawful authority are not mere usurpers; the office was validly created, and their judgments and orders remain valid as those of the Court of Session., In Surendra Singh v. State of Uttar Pradesh, All India Reporter 1954 SC 194, the case was heard by a bench of two judges and the judgment was signed by both, but one judge expired before pronouncement. The judgment was subsequently pronounced by the remaining judge. The Supreme Court of India held the judgment to be valid having been pronounced in terms of Section 353 of the Code of Criminal Procedure. The Court observed that the decision pronounced or intimated must be a declaration of the mind of the Court at the time of pronouncement. The mode of delivery is not of essence; it must be done in a judicial way in open court. The final operative act is the formal declaration in open court, which constitutes the judgment., Article 227 of the Constitution empowers the High Court with superintendence over all courts and tribunals throughout its territory. The power includes both administrative and judicial superintendence, allowing the High Court to transfer a case by exercising its administrative power or its judicial power. Articles 227 and 235 empower the High Court to have superintendence over all courts and tribunals in relation to which it exercises jurisdiction, including matters of posting and promotion of Judicial Officers. The Code of Criminal Procedure vests plenary powers in the High Court relating to superintendence over subordinate courts, including appointment, posting, promotion and transfer of judicial officers. Section 33 provides that Judicial Officers shall have the powers conferred upon them by the High Court, which may withdraw such powers. Section 194 empowers the High Court to direct a Sessions Judge to try a particular case. Section 407 empowers the High Court to transfer cases on judicial side and Section 483 on the administrative side. Section 482 vests inherent power in the High Court to make orders necessary to give effect to any order under the Code or to prevent abuse of process or to secure the ends of justice. Section 483 empowers the High Court to exercise superintendence over the subordinate judiciary. Rule 3, Part B of Chapter 26 of the Delhi High Court Rules empowers the High Court to transfer cases on administrative grounds. Thus, the High Court has both judicial and administrative power to regulate the administration of justice., Chapter XXXV of the Code of Criminal Procedure protects irregularities in procedure unless they have resulted in failure of justice. Section 460 protects irregularities which do not vitiate the proceedings, whereas Section 461 lists irregularities which vitiate proceedings. Section 462 protects a judgment given by a criminal court in a proceeding which took place in a wrong jurisdiction unless it has resulted in failure of justice. Section 465 protects irregularities in the complaint, summons, warrants, proclamation, order, judgment or other proceedings before or during trial unless there has been failure of justice. Failure of justice means serious prejudice caused to the accused. Section 465 protects the findings, sentence or order in respect of an irregularity and not an illegality. Illegality is a defect that strikes at the very substance of justice, such as refusal to give the accused a hearing, to allow the accused to defend himself, or to explain the charge. The distinction between illegality and irregularity is one of degree rather than kind., There are two types of jurisdiction of a criminal court: (i) jurisdiction to try particular kinds of offences, and (ii) territorial jurisdiction. While the former goes to the root of the matter and any transgression makes the entire trial void, the latter is not of a peremptory character and is curable under Section 462 of the Code of Criminal Procedure. Territorial jurisdiction is a matter of convenience, considering the administrative point of view, the convenience of the accused, and the convenience of witnesses. The scheme of the Code is that where there is no inherent lack of jurisdiction, an order or sentence awarded by a competent court cannot be set aside on the ground of lack of territorial jurisdiction or any procedural irregularity unless prejudice is pleaded and proved, which means failure of justice., Note 2 appended to the transfer order dated 13 March 2020, whereby the High Court directed judicial officers to pronounce judgment or order in reserved matters notwithstanding their transfer, was issued by the High Court in exercise of its general power of superintendence over all subordinate courts under Articles 227 and 235 of the Constitution. Note 2 is declared to be legal and valid. Notwithstanding the validity of Note 2, the impugned judgment of conviction is protected by Section 462 of the Code of Criminal Procedure. Section 462 protects the judgment given by a criminal court in a proceeding which took place in a wrong jurisdiction unless any prejudice is pleaded and proved. No prejudice to the accused has been shown in the present case. The impugned judgment is also protected by the de facto doctrine based on necessity and public policy., In Jitender’s case, Note 2 of the transfer order was not under challenge. The Division Bench considered the validity of a judgment dictated and signed by the predecessor Judge but announced by the successor Judge and held the pronouncement by the successor Judge to be illegal for violating Section 353 of the Code of Criminal Procedure. The Division Bench also commented on the validity of Note 2, which was not before it, and observed that an administrative order cannot override the statutory provisions of the Code of Criminal Procedure. However, the Division Bench did not consider Articles 227 and 235 of the Constitution, nor Section 462 of the Code, nor the Supreme Court judgment in State of Karnataka v. Kuppuswamy Gownder on the scope of Section 462 where the trial takes place at a wrong place, nor the well‑established de facto doctrine. The notice to the High Court was not issued before considering the validity of Note 2. Given an opportunity, the High Court could have defended Note 2 as an administrative order passed in exercise of superintendence under Articles 227 and 235. The present submission therefore disagrees with the findings of the Division Bench relating to Note 2., In the present case, the learned Additional Sessions Judge concluded the hearing of oral arguments on 6 March 2020 when he reserved the judgment. The learned Additional Sessions Judge pronounced the judgment in open court on 9 July 2020. The pronouncement is in terms of Section 353 of the Code of Criminal Procedure. The delay of over four months in delivering the judgment is a mere irregularity since it has not caused any prejudice to the accused and is therefore curable., Victims are unfortunately the forgotten people in the criminal justice delivery system. The criminal justice system tends to focus more on the rights of the offender than on relief to the victims. The anxiety shown to highlight the rights of the offender is not matched by enforcement of laws relating to compensation for the victim, which also has a social purpose to serve., The Court must consider the effect of the offence on the victim’s family even though human life cannot be restored, nor can its loss be measured by the length of a prison sentence. No term of months or years imposed on the offender can reconcile the family of a deceased victim to their loss, but monetary compensation will at least provide some solace. In Rattan Singh v. State of Punjab, (1979) 4 Supreme Court Cases 719, Justice Krishna Iyer held that it is a weakness of our jurisprudence that victims of crime do not attract the attention of law. He observed that victimisation of the family of the convict is a reality and a deficiency that must be rectified by the legislature., In Maru Ram v. Union of India, (1981) 1 Supreme Court Cases 107, Justice Krishna Iyer held that while social responsibility of the criminal to restore loss or heal injury is part of the punitive exercise, the length of the prison term is no reparation to the bereaved; victimology must find fulfillment not through barbarity but by compulsory recoupment by the wrongdoer, lessening the loss of the forlorn., In Dayal Singh v. State of Uttarakhand, (2012) 8 Supreme Court Cases 263, the Supreme Court held that the criminal trial is meant for doing justice to all the accused, the society and the victim; only then can law and order be maintained. The Courts must ensure that no innocent person is punished and that the guilty person does not escape., In State of Gujarat v. Hon’ble High Court of Gujarat, (1998) 7 Supreme Court Cases 392, the Supreme Court suggested that the State should make a law setting apart a portion of wages earned by prisoners to be paid as compensation to victims of offences that entail imprisonment, either directly or through a common fund. The entitlement of reparation, restitution and safeguarding of the rights of the victim was noted. The Court observed that if justice is not done to the victim, criminal justice looks hollow. While a life lost cannot be recompensed, monetary compensation provides some solace., Reparation is taken to mean the making of amends by an offender to his victim, or to victims of crime generally, and may take the form of compensation, the performance of some service or the return of stolen property (restitution). These are practical or material forms of reparation. The term can also describe intangible outcomes, such as an apology by the offender and reassurance that the offence will not be repeated, thereby repairing psychological harm suffered by the victim., Sections 357 and 357A of the Code of Criminal Procedure empower the Court to award compensation to victims of an offence in respect of loss or injury suffered. The object is to meet the ends of justice in a better way and to reassure victims that they are not forgotten. The amount of compensation depends upon the nature of the crime, the extent of loss or damage, and the capacity of the accused to pay, which the Court determines after a summary inquiry. If the accused lacks capacity to pay or the compensation awarded is insufficient for rehabilitation of the victim, the Court may invoke Section 357A to recommend the case to the State or District Legal Services Authority for award of compensation from the State‑funded Victim Compensation Fund under the Delhi Victim Compensation Scheme, 2018.
id_499	6	Section 357 of the Code of Criminal Procedure is mandatory and it is the duty of all courts to consider it in every criminal case. The court is required to give reasons to show such consideration., In Hari Singh v. Sukhbir Singh, (1988) 4 Supreme Court Cases 551, the Supreme Court of India issued a mild reprimand while exhorting the courts for liberal use of this provision to meet the ends of justice as a measure of responding appropriately to the crime and reconciling the victim with the offender. Sub‑section (1) of Section 357 provides power to award compensation to victims of the offence out of the fine imposed on the accused. It empowers the court to award compensation to victims while passing judgment of conviction and may order the accused to pay some amount by way of compensation to the victim who has suffered by the action of the accused. This power is not ancillary to other sentences but is in addition thereto and is intended to reassure the victim that he or she is not forgotten in the criminal justice system., In Dilip S. Dahanukar v. Kotak Mahindra Co. Ltd., (2007) 6 Supreme Court Cases 528, the Supreme Court of India explained that the purpose of imposing a fine and/or granting compensation must be considered with relevant factors in mind. The amount of compensation must be reasonable and not arbitrary. Before directing payment of compensation, the capacity of the accused to pay must be judged, and a summary enquiry may be necessary. Sub‑section (3) of Section 357 does not impose any limitation and the power should be exercised only in appropriate cases, not at the whims and caprice of a judge., In Manish Jalan v. State of Karnataka, (2008) 8 Supreme Court Cases 225, the Supreme Court of India observed that the courts have not made use of the provisions regarding award of compensation to victims as often as they ought to. Although a comprehensive provision enabling the court to direct payment of compensation has existed throughout, the experience has shown that the provision has rarely attracted the attention of the courts. The courts have been reminded that the provision is aimed at serving a social purpose and should be exercised liberally, yet the results are not very heartening., In K.A. Abbas H.S.A. v. Sabu Joseph, (2010) 6 Supreme Court Cases 230, the Supreme Court of India again noted that Section 357 of the Code of Criminal Procedure is an important provision but the courts have seldom invoked it, perhaps due to ignorance of its object., In Roy Fernandes v. State of Goa, (2012) 3 Supreme Court Cases 221, the Supreme Court of India observed that the criminal courts do not appear to have taken significant note of Section 357 of the Code of Criminal Procedure or exercised the power vested in them., In Ankush Shivaji Gaikwad v. State of Maharashtra, (2013) 6 Supreme Court Cases 770, the Supreme Court of India noted with despair that Section 357 of the Code of Criminal Procedure has been consistently neglected despite a series of pronouncements. The Court held that Section 357 is mandatory and has to be applied in every criminal case and that courts are required to record reasons for such application. The only other aspect that needs to be examined is whether any compensation be awarded against the appellant and in favour of the bereaved family under Section 357. The plenitude of the power vested in the courts under Sections 357 and 357‑A cannot be ignored; the courts have a duty to advert to the question of awarding compensation to the victim and record reasons while granting or refusing relief. The provision confers a power coupled with a duty on the courts to apply its mind to the question of awarding compensation in every criminal case. It is a constructive approach to crimes and a step forward in our criminal justice system. Section 357 of the Code of Criminal Procedure therefore confers a duty on the court to apply its mind to the question of compensation in every criminal case and to disclose that it has done so by recording reasons. While the award or refusal of compensation may be within the court's discretion, there exists a mandatory duty on the court to apply its mind to the question in every criminal case., In paragraph 68 of the said judgment, the Supreme Court of India directed that a copy of the judgment be forwarded to the Registrars of all the High Courts for circulation among judges handling criminal trials and hearing appeals., In Ashwani Gupta v. Government of India, 2005 (117) Delhi Law Times 112, the Delhi High Court held that mere punishment of the offender cannot give much solace to the family of the victim. Since civil action for damages is a long‑drawn and cumbersome judicial process, the compensation under Section 357 of the Code of Criminal Procedure would be a useful and effective remedy., There is therefore not only statutory empowerment under Section 357(3) of the Code of Criminal Procedure of the appellate court to make an appropriate order regarding compensation but also a mandatory duty of every court, at the trial stage as well as the appellate stage, to consider and pass an order of fair and reasonable compensation on relevant factors., In Vikas Yadav v. State of Uttar Pradesh, 2015 Supreme Court Cases Online Delhi 7129, the Division Bench of the Delhi High Court laid down the principles relating to the procedure to be followed in respect of Section 357 of the Code of Criminal Procedure. Section 357(1)(b) empowers the court to award compensation out of the fine to the victim for any loss or injury caused by the offence when the compensation is, in the opinion of the court, recoverable by such person in civil court. Section 357(1)(c) empowers the court to award compensation out of the fine in death cases where the persons are entitled to recover the same under the Fatal Accidents Act, 1855. Section 357(3) empowers the court to award compensation to any person who has suffered loss or injury by reason of the act of the accused. Section 357(5) provides that at the time of awarding compensation in any subsequent civil suit relating to the same matter, the court shall take into account any sum paid or recovered as compensation under this section. The effect of these provisions is that the court has to compute the compensation which the victims are entitled to claim against the accused under civil law., In cases resulting in death, the multiplier method has been accepted as a sound method for determining compensation to the family of the deceased in the law of torts. References may be made to Gobald Motor Service Ltd. v. R.M.K. Veluswami, 1962 (1) Supreme Court Reports 929; Ishwar Devi Malik v. Union of India, ILR (1968) 1 Delhi 59; Lachman Singh v. Gurmit Kaur, I (1984) All India Reporter 489 (SB); Lachhman Singh v. Gurmit Kaur, AIR 1979 Punjab & Haryana 50; Bir Singh v. Hashi Rashi Banerjee, AIR 1956 Calcutta 555; Lata Wadhwa v. State of Bihar, (2001) 8 Supreme Court Cases 197; Municipal Corporation of Delhi v. Association of Victims of Uphaar Tragedy, AIR 2012 Supreme Court 100; Jaipur Golden Gas Victims Association v. Union of India, (2009) 164 Delhi Law Times 346; Nagrik Sangarsh Samiti v. Union of India, 2012 All India Court Journal 1548; Ram Kishore v. M.C.D., (2007) 97 Delhi Reporter Journal 445; and Ashok Sharma v. Union of India, 2009 All India Court Journal 1063. The multiplier method is statutorily recognized for computation of compensation in death cases under Section 163A of the Motor Vehicles Act, 1988., The multiplier method is based on the pecuniary loss caused to the dependants by the death of the victim of a road accident. The dependency of the dependants is determined by taking the annual earnings of the deceased at the time of the accident and giving effect to the future prospects of the deceased. After establishing the income of the deceased, a deduction is made towards personal expenses: if the deceased was unmarried, normally 50 % of the income is deducted; if married with two to three dependents, one‑third is deducted; with four to six family members, one‑fourth is deducted; and where the number of dependent family members exceeds six, one‑fifth is deducted. The remaining amount is taken as the loss of dependency and multiplied by 12 to determine the annual loss of dependency. The annual loss of dependency is then multiplied by the multiplier according to the age of the deceased or victim, whichever is higher. For example, a 36‑year‑old telephone operator earning Rs 7,500 per month who dies in a road accident leaving a widow and two children would have a total income for compensation calculated as Rs 11,250 (adding 50 % for future prospects). After deducting one‑third for personal expenses, the loss of dependency is Rs 7,500 per month, giving an annual loss of Rs 90,000. Multiplying by the age multiplier of 15 yields a total loss of dependency of Rs 13,50,000. Additional compensation is added for loss of love and affection, loss of consortium, loss to estate, medical expenses, emotional trauma, mental and physical shock, and funeral expenses., In Bodhisattwa Gautam v. Subhra Chakraborty, (1996) 1 Supreme Court Cases 490, the Supreme Court of India held that the court has the right to award interim compensation and that the jurisdiction to pay interim compensation is part of the overall jurisdiction of the courts trying the offence. The decision recognises the right of the victim to compensation by providing that it shall be awarded by the court on conviction of the offender subject to the finalisation of the Scheme by the Central Government. The court trying an offence of rape, for example, may award interim compensation as part of the Scheme. The court also has inherent jurisdiction to pass any order it considers fit and proper in the interest of justice., Article 227 of the Constitution empowers the High Court with superintendence over all courts and tribunals throughout its territory. The power of superintendence includes both administrative and judicial aspects; the High Court can transfer a case by exercising its administrative power of superintendence or its judicial power of superintendence. Article 235 of the Constitution empowers the High Court with respect to the posting and promotion of judicial officers. The Code of Criminal Procedure vests in the High Court plenary powers relating to superintendence over subordinate courts, including appointment, posting, promotion and transfer of judicial officers. Section 194 empowers the High Court to direct a Sessions Judge to try particular cases. Section 407 empowers the High Court to transfer cases on the judicial side and Section 483 empowers the High Court to transfer cases on the administrative side. Section 482 vests inherent power in the High Court to make such orders as may be necessary to give effect to any order under the Code or to prevent abuse of process of any court or otherwise to secure the ends of justice. Section 483 empowers the High Court to exercise superintendence over the subordinate judiciary. Rule 3 of Part B of Chapter 26 of the Delhi High Court Rules empowers the Delhi High Court to transfer cases on administrative grounds. Thus, the Delhi High Court has both judicial and administrative power to regulate the administration of justice., Note 2 appended to the transfer order dated 13 March 2020 issued by the Delhi High Court in exercising the aforesaid powers under the Constitution and the Code of Criminal Procedure is declared to be legal and valid. The contrary finding of the Division Bench relating to Note 2 in Jitender's case is overruled., The learned Additional Sessions Judge was duly empowered to pronounce the judgment by virtue of Note 2 appended to the transfer order dated 13 March 2020. The pronouncement of the judgment by the learned Additional Sessions Judge is in terms of Section 353 of the Code of Criminal Procedure. The delay in pronouncing the judgment is a mere irregularity and is hereby condoned., Victims are unfortunately the forgotten people in the criminal justice delivery system. Victims are the worst sufferers; the victim's family is ruined particularly in cases of death and grievous bodily injury, apart from loss of reputation and humiliation. The court has to take into consideration the effect of the offence on the victim's family; although human life cannot be restored, monetary compensation will at least provide some solace., Section 357 and Section 357A of the Code of Criminal Procedure empower the court to award compensation to victims who have suffered by the action of the accused. The object of Section 357(3) is to provide compensation to victims who have suffered loss or injury by reason of the act of the accused. Mere punishment of the offender cannot give much solace to the family of the victim; civil action for damages is a long‑drawn and cumbersome judicial process. Monetary compensation for redressal by the court, finding the infringement of the indefeasible right to life of the citizen, is therefore useful and at times perhaps the only effective remedy to apply balm to the wounds of the family members of the deceased victim, who may have been the bread‑earner of the family., Section 357 of the Code of Criminal Procedure is intended to reassure the victim that he or she is not forgotten in the criminal justice system. It is a constructive approach to crimes and indeed a step forward in our criminal justice system. The power under Section 357 is not ancillary to other sentences but is in addition thereto. The power under Section 357 is to be exercised liberally to meet the ends of justice in a better way., Section 357 of the Code of Criminal Procedure confers a duty on the court to apply its mind to the question of compensation in every criminal case. The word \may\ in Section 357(3) means \shall\ and therefore Section 357 is mandatory. The Supreme Court of India in Ankush Shivaji Gaikwad has directed that the courts shall consider Section 357 in every criminal case and, if the court fails to make an order of compensation, it must furnish reasons., The amount of compensation is to be determined by the court depending upon the gravity of the offence, the severity of mental and physical harm or injury suffered by the victim, the damage or losses suffered by the victim and the capacity of the accused to pay. While determining the paying capacity of the accused, the court has to take into consideration the present occupation and income of the accused. The accused can also be directed to pay monthly compensation out of his income., Before awarding compensation, the trial court is required to ascertain the financial capacity of the accused. This court has formulated the format of an affidavit to be filed by the accused after his conviction to disclose his assets and income, which is Annexure‑A hereto., This court has formulated the format of a Victim Impact Report (VIR) to be filed by the Delhi State Legal Services Authority in every criminal case after conviction. The Victim Impact Report shall disclose the impact of the crime on the victim. The format of the Victim Impact Report in respect of criminal cases other than motor‑accident cases is Annexure B‑1; the format for motor‑accident cases is Annexure B‑2., A summary inquiry is necessary to ascertain the impact of the crime on the victim, the expenses incurred on prosecution as well as the paying capacity of the accused. This court is of the view that the summary inquiry be conducted by the Delhi State Legal Services Authority, considering that the Authority is conducting a similar inquiry under the Delhi Victim Compensation Scheme, 2018 and is well conversant with the manner of conducting the inquiry., After the conviction of the accused, the trial court shall direct the accused to file the affidavit of his assets and income in the format of Annexure‑A within ten days. The court shall also direct the State to disclose the expenses incurred on prosecution on affidavit along with supporting documents within thirty days., Upon receipt of the affidavit of the accused, the trial court shall immediately send the copy of the judgment and the affidavit of the accused in the format of Annexure‑A and the documents filed with the affidavit to the Delhi State Legal Services Authority. The Authority shall conduct a summary inquiry to compute the loss suffered by the victims and the paying capacity of the accused and shall submit the Victim Impact Report containing its recommendations to the court within thirty days. The Authority shall seek necessary assistance from the Sub‑Divisional Magistrate, the Station House Officer and/or the prosecution, who shall provide assistance upon request., The trial court shall thereafter consider the Victim Impact Report of the Delhi State Legal Services Authority with respect to the impact of the crime on the victims, the paying capacity of the accused and the expenditure incurred on prosecution; after hearing the parties, including the victims of crime, the court shall award compensation to the victim(s) and cost of prosecution to the State, if the accused has the capacity to pay. The court shall direct the accused to deposit the compensation with the Delhi State Legal Services Authority, which shall disburse the amount to the victims according to its scheme., If the accused does not have the capacity to pay the compensation or the compensation awarded is not adequate for rehabilitation of the victim, the court shall invoke Section 357A of the Code of Criminal Procedure to recommend the case to the Delhi State Legal Services Authority for award of compensation from the Victim Compensation Fund under the Delhi Victims Compensation Scheme, 2018., In pending appeals or revisions against the order on sentence in which Section 357 has not been complied with, the public prosecutor shall file an application seeking a direction from the court for directing the accused to file his affidavit of assets and income in the format of Annexure‑A and for directing the Delhi State Legal Services Authority to conduct a summary inquiry to ascertain the loss or damage suffered by the victim(s) and the paying capacity of the accused in the format of Annexures‑B/B‑1 in terms of Section 357(4) of the Code of Criminal Procedure., All courts below shall send a monthly statement to the Registrar General of the Delhi High Court containing the list of cases decided each month. The list shall contain the name and particulars of the case; date of conviction; whether the affidavit of assets and income has been filed by the accused; whether a summary inquiry has been conducted to assess the compensation and determine the paying capacity of the accused; and the compensation amount awarded. The monthly statement shall also contain a one‑page summary format of the above information. The first monthly report for the period 1 January 2021 to 31 January 2021 shall be submitted by 15 February 2021 and thereafter by the 15th of each calendar month. The Registrar General shall place these reports before the ACR Committee of the Judicial Officers., Sh. Kanwal Jeet Arora, Member Secretary of the Delhi State Legal Services Authority, submits that additional manpower would be required to conduct the summary inquiry in every criminal case before sentencing. The Authority is directed to prepare a proposal for additional manpower after examining the number of summary inquiries likely to be conducted each month and to send the proposal to the Government of the National Capital Territory of Delhi within one week. The Government shall complete all necessary formalities within three weeks to ensure that the directions of this court relating to the summary inquiry by the Authority in every criminal case are implemented with effect from 1 January 2021., Mr. Rahul Mehra, learned Standing Counsel shall take up the matter with the Government of the National Capital Territory of Delhi to ensure compliance with this direction within the stipulated time. The court will list for reporting compliance and further directions on 25 February 2021., The court appreciates the valuable and effective assistance rendered by Mr. Kanhaiya Singhal, Advocate assisted by Ms. Pratiksha Tripathi, Advocate; Mr. Rahul Mehra, learned Standing Counsel assisted by Ms. Aashaa Tiwari, learned Additional Public Prosecutor and Mr. Chaitanya Gosain, Advocate; Mr. Rajshekhar Rao, Advocate assisted by Ms. Aanchal Tikmani and Mr. Shreeyash Lalit, Advocates for the Delhi High Court; Mr. Vikas Pahwa, learned Amicus Curiae assisted by Mr. Sumer Singh Boparai, Mr. Varun Bhati and Ms. Raavi Sharma, Advocates; Prof. G.S. Bajpai, Professor of Criminology & Criminal Justice, National Law University, Delhi as amicus curiae assisted by Mr. Neeraj Tiwari, Assistant Professor of Law, Mr. Ankit Kaushik, Research Associate, Mr. G. Arudhra Rao and Ms. Shelal Lodhi Rajput; Mr. Kanwal Jeet Arora, Member Secretary, Delhi State Legal Services Authority; Mr. Akshay Chowdhary and Ms. Anjali Agrawal, Law Researchers attached to this court., The court is of the view that the mandatory summary inquiry by the Delhi State Legal Services Authority into the loss or damage suffered by the victim and the paying capacity of the accused after conviction; the affidavit of the accused in the format of Annexure‑A; and the Victim Impact Report by the Authority in the format of Annexure‑B and Annexure B‑1 should be incorporated in the statute and rules. Let this suggestion be considered by the Central Government. A copy of this judgment along with Annexure‑A, Annexure‑B and Annexure B‑1 be sent to Mr. Chetan Sharma, learned Additional Solicitor General for taking up the matter with the Ministry of Law & Justice. Mr. Chetan Sharma, learned Additional Solicitor General is requested to assist this court on 25 February 2021.
id_499	7	Copy of this judgment along with Annexure A, Annexure B and Annexure B‑1 shall be sent to the Registrar General of the Supreme Court of India, who shall forward the same to the District Judge (Headquarters) for circulation to all concerned courts. The same judgment, affidavit of the accused in the format of Annexure A, Victim Impact Report in the format of Annexure B and Annexure B‑1 shall be uploaded on the District Court website in PDF format to enable lawyers and litigants to download them. Copies shall also be sent to the Delhi Judicial Academy to sensitize the judges about the directions given by the Supreme Court of India, to the National Judicial Academy for inclusion in its best practices section, to the Delhi State Legal Services Authority and to the Director of Prosecution for circulation to all prosecutors., Format of the AFFIDAVIT of the Convict (to be filed by the convict within ten days of the conviction): The affidavit shall contain the following particulars: FIR number, date and sections under which it was filed; name of the police station; date, time and place of the offence; date of conviction; name of the convict; father's or spouse's name; age; gender; marital status; permanent and present addresses; contact information including mobile number and email ID; educational and professional qualifications; occupation; monthly income from all sources including employment, business, vocation, interest, investment, income from properties and assets; whether the convict is assessed to Income Tax and, if yes, copies of Income Tax Returns for the last three years; complete details of immediate family members including name, age, relation, occupation, income and address; if the deponent is a salaried person, designation, name and address of the employer and monthly income including salary, dearness allowance, commissions, incentives, bonus and perks; if the deponent is self‑employed, nature of business or profession, form of ownership (individual, sole‑proprietorship, partnership, company, Hindu Undivided Family, joint family business or other), and net monthly income; income from other sources such as agricultural income, rent, interest on bank deposits, fixed deposit receipts, investments including deposits, National Savings Certificates, Public Provident Fund, Post Office schemes, loans, dividends, mutual funds, annuities etc.; income earned by the convict during incarceration; any other income not covered above; total income on a monthly and annual basis; details of immovable properties including joint properties, built‑up properties, leasehold properties, land or agricultural land and investment in real estate such as booking of plots or flats in the convict's name or joint names; details of financial assets including all bank accounts (current and savings), demat accounts in the convict's name or joint names held in the last three years with account numbers, bank names and current balances; investments such as public provident fund, deposits with government and non‑government entities, stocks, shares, debentures, bonds, units and mutual funds with current values; details of movable assets such as motor vehicles, livestock, plant and equipment with cost of acquisition; list of other assets not itemized above and the total value of assets; copies of Aadhaar Card, Voter ID Card and Permanent Account Number Card; statement of account of all bank accounts for the last three years; Income Tax Returns of the deponent along with balance sheets, statements of income and annexures for the last three years; salary slip in case of salaried persons., Declaration: I solemnly declare and affirm that I have made a true, accurate and complete disclosure of my income from all sources and assets. I further declare and affirm that I have no income or assets other than those set out in this affidavit. I undertake to inform the Supreme Court of India immediately upon any material change in my income and assets or any other information disclosed in this affidavit. I hereby declare that the contents of this affidavit have been duly explained to me and have been understood by me. The copies of the documents filed with the affidavit are true copies of the originals and I have self‑attested the copies after comparing them with the originals. I understand that any false statement made in this affidavit may constitute an offence under Section 199 read with Sections 191 and 193 of the Indian Penal Code, 1860, punishable with imprisonment up to seven years and fine, and under Section 209 of the Indian Penal Code, 1860, punishable with imprisonment up to two years and fine. I have read and understood Sections 191, 193, 199 and 209 of the Indian Penal Code, 1860., Verification: Verified at [place] on this [day] of [month] [year]. The contents of the above affidavit relating to my income and assets are true to my knowledge, no part of it is false and nothing material has been concealed. I further verify that the copies of the documents filed along with the affidavit are true copies of the originals., Recommendations of the Delhi State Legal Services Authority: After taking into consideration the gravity of the offence, the severity of mental and physical harm or injuries suffered by the victims, the losses suffered by the victims and the paying capacity of the accused, the Committee recommends the following. Delhi Member Secretary, Delhi State Legal Services Authority, Dated [date]., Documents considered and attached to the report in death cases: death certificate; proof of age of the deceased in the form of a birth certificate, school certificate, certificate from the Gram Panchayat (in case of illiterate persons) or Aadhaar Card; proof of occupation and income of the deceased in the form of a pay slip or salary certificate (for salaried employees), bank statements of the last six months, Income Tax Return and balance sheet; details of the legal representatives of the deceased including names, age, address, phone number and relationship; treatment records, medical bills and other expenditures; bank account number of the legal representatives of the deceased with name and address of the bank; any other document found relevant., Documents considered and attached to the report in injury cases: multi‑angle photographs of the injured; proof of age of the injured in the form of a birth certificate, school certificate, certificate from the Gram Panchayat (in case of illiterate persons) or Aadhaar Card; proof of occupation and income of the injured in the form of a pay slip or salary certificate, bank statements of the last six months, Income Tax Return and balance sheet; treatment records, medical bills and other expenditures; disability certificate, if available; proof of absence from work where loss of income on account of injury is claimed, in the form of a certificate from the employer or extracts from the attendance register; proof of reimbursement of medical expenses by the employer or under a Mediclaim policy, if taken; any other document found relevant., Conduct of the accused: Whether the accused fled from the spot and, if so, when he or she appeared before police or the court; whether the accused reported the accident to the police or the victim’s family; whether the accused provided any assistance to the victim, took the victim to the hospital or visited the victim in the hospital; whether the accused remained at the spot until police arrived; whether the accused cooperated in the investigation; whether the accused removed his or her vehicle from the spot before police arrived; whether the accused paid compensation or medical expenses to the victim or his family; whether the accused has previous convictions; whether the accused is or was a close relative or friend of the victim; age and gender of the accused; whether the accused suffered injuries during the accident; whether the accused discharged duties under Sections 132 and 134 of the Motor Vehicles Act, 1988, and if not, whether the accused has been prosecuted under Section 187 of the Motor Vehicles Act; whether the driver has been previously involved in a motor accident case and, if yes, details of the FIR number and police station; in case the driver fled from the spot, whether the owner complied with the provisions of Section 133 of the Motor Vehicles Act; any other information regarding the conduct of the accused; apparent contributing circumstances such as driving without a valid licence, driving while disqualified, learner driving without supervision, vehicle not insured, driving a stolen vehicle, vehicle taken out without the consent of the owner, dangerous or excessive speed, overloaded vehicle, parking on the wrong side of the road, non‑observance of traffic rules, poorly maintained vehicle, forged licence, history of convulsions or seizures, fatigue, previous violations of traffic rules, medical conditions impairing driving, use of mobile phone while driving (handheld or hands‑free), multiple injuries or deaths, influence of alcohol or drugs; aggressive driving behaviours including jumping red lights, abrupt braking, failure to keep left, criss‑cross driving, driving on the wrong side, tailgating, inappropriate overtaking, cutting in after overtaking, exceeding speed limits, racing, disregarding warnings, overtaking where prohibited, driving with loud music, improper reversing, improper passing, improper turning, turning without indication, driving in no‑entry zones, not slowing at junctions, turning without indication, not respecting stop signs or right of way for pedestrians; and irresponsible behaviour such as failing to stop after an accident, fleeing the scene, destroying or attempting to destroy evidence, falsely claiming a victim’s responsibility, attempting to throw a victim off the vehicle, causing death or injury in the course of dangerous driving after the commission of a crime, evading police, committing offences while on bail, presenting false defence, misleading the investigation or exhibiting post‑accident road‑rage behaviour., Paying capacity of the accused: The accused has submitted an affidavit of his assets and income in the format Annexure A. The particulars given by the accused in his affidavit have been verified through the Sub Divisional Magistrate, police and prosecution, and after considering the same, the paying capacity of the accused is assessed as stated.
id_5	0	Naresh Baliyan Vs M/s Times Now Navbharat 17.08.2023 (at 5.18 pm) fresh suit received by way of assignment. It be checked and registered. Present: Shri Balbir Singh Jakhar, Shri N.C. Sharma, Shri Jai Singh Yadav, Shri Vikram Singh Jakhar, Shri Karamvir Tyagi, Lead counsels for plaintiff. Plaintiff (through video conference) heard. Perused. Additional copy of plaint filed. Taken on record., The case of the plaintiff is that he is engaged in social work and reforms since the last two‑three decades and was elected as a member of the Delhi Legislative Assembly in 2015 and again in 2020, having achieved a great reputation in the vicinity due to his hard work and good conduct. It is stated that the plaintiff has received threats from gangster Shri Kapil Sangwan alias Nandu of the Nandu Gang, for which the plaintiff has lodged police complaints., It is stated that on the noon of 17.08.2023 the plaintiff and his family were shocked by the news broadcast by the defendant on a news channel under the heading “Sarji ka Vidhayak Gangster ka Sahayak”. The said news is also available on the YouTube channel of the defendant and is still broadcast on the channel as well as other electronic social media contents. The false news has caused great loss to the reputation of the plaintiff as well as his family., During the course of arguments it was submitted by lead counsel that the defendant is promulgating/broadcasting the news arbitrarily. It is also submitted that criminal Shri Kapil Sangwan alias Nandu is not traceable even for the entire Delhi Police and the police have issued a Red Corner Notice against Shri Kapil Sangwan alias Nandu. It is further submitted by lead counsel that the defendant has no source or reason to get in touch with a person against whom a Red Corner Notice has been issued by the police and the defendant has not verified the authenticity or veracity of the allegations/statements made by Shri Kapil Sangwan alias Nandu against the plaintiff., Further broadcasting of any such news by electronic media or by print media will badly hamper the reputation of the plaintiff and also the faith and confidence of the public at large living in the constituency of the plaintiff towards the integrity and public spirit of the plaintiff. In view of the above submissions, defendant M/s Times Now Navbharat/Times Group Media Channel is hereby directed not to broadcast, telecast or print the news, statement or opinion under the heading of operation PAAP against the plaintiff till the next date of hearing., Issue summons for settlement of issues and notice of interim application to the defendant through electronic mode, PF/RC, returnable on 18.08.2023. The plaintiff shall comply with the provisions of Order 39 Rule 3 of the Code of Civil Procedure by serving a copy of this order to the defendant. A copy of this order shall be given dasti to the lead counsel for plaintiff for compliance. The plaintiff is also directed to file the e‑mail address and official WhatsApp number of the defendants.
id_50	0	Case: WRIT - C No. 29346 of 2023\nPetitioner: Akash Kumar\nRespondent: Union of India and two others\nCounsel for Petitioner: Shashi Kant Shukla, Sadhana Dubey\nCounsel for Respondent: Additional Standing Government Counsel, Narendra Kumar Chatterjee\nHonourable Mahesh Chandra Tripathi, J.; Honourable Prashant Kumar, J., Heard Mister Shashi Kant Shukla, learned counsel for the petitioner and Mister Narendra Kumar Chatterjee, learned Standing Counsel for Union of India. By means of the instant petition, the petitioner has prayed for the following principal reliefs: Issue a suitable order or direction in the nature of certiorari for quashing the impugned order dated 21 July 2023 passed by respondent No. 3 by which the passport application of the petitioner was rejected on the ground that the police verification report is not clear, as contained in Annexure No. 4 of the writ petition; and issue a writ order or direction in the nature of mandamus directing respondent No. 2 and No. 3 to issue a passport to the petitioner., Mister Narendra Kumar Chatterjee, learned counsel for the Union, on the basis of instructions received by the Senior Superintendent of Police for Regional Passport Officer, Lucknow, submitted that an adverse police verification report dated 07 July 2023 is indicated therein with a remark as \NCR No. 203/2022, under Sections 323, 504, Indian Penal Code registered\ against the applicant. He further submitted that a Show Cause Notice dated 21 July 2023 has been issued to the petitioner to submit his reply regarding the aforesaid case. However, the response to the Show Cause Notice is still awaited from the petitioner and is to be submitted in the office of the Regional Passport Officer, Lucknow., In response, learned counsel for the petitioner submits that, as per the provisions of the Code of Criminal Procedure, 1973 (Cr.P.C.), if there is no order of any Magistrate for investigation under Section 155(1) Cr.P.C., then no police officer could investigate a non‑cognizable case. He further submits that the NCR is of the year 2020 and, as per Section 468 Cr.P.C., if cognizance of the case could not be taken within the limited period then the report of the non‑cognizable case would be a worthless document. The petitioner contends that he has not been convicted in any case to date and has no criminal history except the aforesaid case. He lastly submits that it is settled law by the Supreme Court of India as well as by this High Court that a passport cannot be denied merely on the basis of a criminal case. In support of his submissions, he has placed reliance upon the judgment and order passed by this High Court in Basoo Yadav v. Union of India and four others (Writ‑C No. 29605 of 2022, dated 16 December 2022) and contends that the present matter is squarely covered by that judgment and similar treatment may be extended to the petitioner. For ready reference, the operative portion of the order dated 16 December 2022 is reproduced below., \Having heard learned counsel for the petitioner and learned Standing Counsel and after having gone through the instructions which have been sent by the Director General of Police, the Court is definitely of the view that no non‑cognizable report which was registered could be taken into cognizance if no investigation was ordered by the concerned Magistrate. Even though in the instant case, whether the passport can be refused on the basis of the pendency of the criminal case is not the question involved, we are of the view that even during the pendency of any criminal case, passport could be issued or renewed as per the Government Order dated 25 August 1993 if the Court passes orders for that purpose. In the instant case, we do find that the application of the petitioner was rejected on the basis of the two reports of non‑cognizable cases namely NCR No. 111/2012 and NCR No. 114/2018. The Director General of Police has also given his view that the reports with regard to the non‑cognizable cases could not be made the basis for rejecting an application for issuance of passport if they had not been investigated into. Under such circumstances, we issue the following directions: (1) The passport form of the petitioner for the issuance of a passport be considered within a period of two weeks from the date of presentation of a certified copy of this order before respondent No. 2 – Regional Passport Officer, Regional Passport Office, Vipin Khand, Gomti Nagar, Lucknow; (2) Since we are finding that in quite a few cases the reports of non‑cognizable cases in which the concerned Magistrate had not even ordered investigation were being taken into account for rejection of passport, we issue a direction to the Director General of Police to instruct his officers to give a report with regard to the pendency of reports in non‑cognizable cases after appropriate and proper application of mind; (3) Outright the passport applications shall not be rejected under Section 6(2)(f) of the Passports Act if orders of the Court, where the criminal case is pending, have been passed as per the Government Order dated 25 August 1993. The Director General of Police to issue notification in this regard also. With these observations, the writ petition is, accordingly, allowed.\, Learned counsel for the petitioner has further placed reliance upon the order dated 27 September 2021 passed by the Supreme Court of India in Vangala Kasturi Rangacharyulu v. Central Bureau of Investigation (IA 52346/2021 in Criminal Appeal No. 1343/2017), wherein the Supreme Court held that the passport authority cannot refuse the renewal of the passport on the ground of pendency of the criminal appeal. For ready reference, the operative portion of the order dated 27 September 2021 is reproduced below. \The refusal of a passport can be only in case where an applicant is convicted during the period of five years immediately preceding the date of application for an offence involving moral turpitude and sentence for imprisonment for not less than two years. Section 6(2)(f) relates to a situation where the applicant is facing trial in a criminal court. Admittedly, at present, the conviction of the appellant stands pending the disposal of the criminal appeal. The sentence which he has to undergo is for a period of one year. The passport authority cannot refuse the renewal of the passport on the ground of pendency of the criminal appeal. The passport authority is directed to renew the passport of the applicant without raising the objection relating to the pendency of the criminal appeal in this Court. Subject to the other conditions being fulfilled, the interlocutory application stands disposed of.\, The above‑stated argument of learned counsel for the petitioner is not being disputed by learned Standing Counsel for the Union of India as well as learned Additional Chief Standing Counsel for the State., We have perused the record in question as well as the judgments cited above. In the facts and circumstances of the case, we are of the considered opinion that the claim of the petitioner must be processed in the light of the observations made by the Supreme Court of India in the above‑noted judgment as well as in the light of the judgment in Basoo Yadav (supra) within six weeks from the date of production of a certified copy of this order.
id_502	0	Date of Decision: 18th March 2021. Through: Mr. Gopal Subramanium, Mr. Gourab Banerji, Mr. Rajiv Nayar, Mr. Amit Sibal and Mr. Nakul Dewan, Senior Advocates, along with Mr. Anand S. Pathak, Mr. Amit K. Mishra, Mr. Shashank Gautam, Ms. Sreemoyee Deb, Mr. Mohit Singh, Mr. Harshad Pathak, Mr. Promit Chatterjee, Mr. Shivam Pandey, Ms. Kanika Singhal, Ms. Saloni Agarwal, Ms. Didon Misri, Advocates of P&A Law Offices; Mr. Vijayendra Pratap Singh, Mr. Rachit Bahl, Ms. Roopali Singh, Mr. Abhijnan Jha, Mr. Priyank Ladoia, Mr. Aman Sharma, Mr. Tanmay Sharma, Mr. Arnab Ray, Mr. Vedant Kapur, Advocates of AZB & Partners; Mr. Pawan Bhushan, Ms. Hima Lawrence, Ms. Ujwala Uppaluri, Mr. Mohit Pandey, Ms. Raka Chatterji, Ms. Manjira Dasgupta, Mr. Aishvary Vikram, Mr. Ambar Bhushan, Mr. Vinay Tripathi, Ms. Anushka Shah and Ms. Neelu Mohan, Advocates versus Through: Mr. Vikram Nankani, Senior Advocate, with Mr. Mahesh Agarwal, Mr. Rishi Agrawala, Mr. Karan Luthra, Mr. Pranjit Bhattacharyya, Mr. Ankit Banati, Advocates for Respondent 1, Respondent 3, Respondent 12 and Mr. Harish Salve, Senior Advocate, Mr. Darius Khambata, Senior Advocate, with Mr. Somasekhar Sundaresan, Mr. Ameet Naik, Mr. Raghav Shankar, Mr. Aditya Mehta, Mr. Tushar Hathiramani, Mr. Abhishek Kale, Ms. Madhu Gadodia, Mr. Harshvardhan Jha and Ms. Arshiya Sharda, Advocates for Respondent 2, Respondent 15 and Respondent 16; Mr. Rohan Shah and Mr. Nakul Mohta, Advocates for Respondent 4 to Respondent 11 and Respondent 13., The petitioner has filed this petition under Section 17(2) of the Arbitration and Conciliation Act, 1996 read with Order XXXIX Rule 2A and Section 151 of the Code of Civil Procedure for enforcement of the interim order dated 25th October 2020 passed by the Emergency Arbitrator. The respondents have raised a legal objection to the maintainability of this enforcement petition on the ground that the Emergency Arbitrator is not an arbitrator within the meaning of Section 2(1)(d) of the Arbitration and Conciliation Act; the interim order dated 25th October 2020 is not an order under Section 17(1) and, therefore, not enforceable under Section 17(2) of the Arbitration and Conciliation Act. Respondent 2 has raised two objections. The first objection is that there is no arbitration agreement between the petitioner and Respondent 2 and that the Emergency Arbitrator has misapplied the Group of Companies doctrine to implead Respondent 2. According to Respondent 2, the Group of Companies doctrine applies only in proceedings under Section 8 of the Arbitration and Conciliation Act for transfer of proceedings pending in court to arbitration where the plaintiff claims through a person who is a party to an arbitration agreement, and cannot be invoked to implead Respondent 2. The second objection of Respondent 2 is that the order of the Emergency Arbitrator is a nullity insofar as Respondent 2 is concerned because there is no arbitration agreement between the petitioner and Respondent 2 and treating all the agreements as a single integrated transaction would result in the petitioner acquiring control over Respondent 2, thereby violating the Foreign Exchange Management Act, 1999 and the Foreign Exchange Management (Non‑Debt Instruments) Rules, 2019 (FEMA FDI Rules). Three important questions have arisen for consideration before the Supreme Court of India: (a) What is the legal status of an Emergency Arbitrator, i.e., whether the Emergency Arbitrator is an arbitrator and whether the interim order of the Emergency Arbitrator is an order under Section 17(1) and is enforceable under Section 17(2) of the Arbitration and Conciliation Act? (b) Whether the Emergency Arbitrator misapplied the Group of Companies doctrine which applies only to proceedings under Section 8 of the Arbitration and Conciliation Act as alleged by Respondent 2? (c) Whether the interim order of the Emergency Arbitrator is a nullity as alleged by Respondent 2?, Future.com NV Investment Holdings LLC is the petitioner; Future Coupons Private Limited (FCPL) is Respondent 1; Future Retail Limited (FRL) is Respondent 2; the promoters of Respondents 1 and 2 are Respondents 3 to 13 (hereinafter referred to as the Promoters) and the key managerial personnel of Respondents 1 and 2 are Respondents 14 to 16., The petitioner invested Rs 1,431 crore in FCPL based on certain special, material protective and negative rights available to FCPL in FRL, namely that the retail assets of FRL would not be alienated without the petitioner’s prior written consent and never to a restricted person. FCPL and FRL further agreed that FRL would remain the sole vehicle for conducting its retail business. The entire investment of Rs 1,431 crore was invested by FCPL into FRL, and FRL received the benefit of the petitioner’s entire investment. Between 12th August 2019 and 22nd August 2019, the following agreements were executed: (i) Shareholders Agreement dated 12th August 2019 between Respondents 1 to 13 (referred to as the FRL Shareholders Agreement); (ii) Shareholders Agreement dated 22nd August 2019 between the petitioner and Respondents 1, 3 to 13 (referred to as the FCPL Shareholders Agreement); and (iii) Share Subscription Agreement dated 22nd August 2019 between the petitioner and Respondents 1, 3 to 13 (referred to as the Share Subscription Agreement)., According to the petitioner, the Biyanis began breaching the agreements within months of the investment by permitting their shareholding in FRL to become further encumbered. On 29th August 2020, FRL, controlled by the Biyanis, in violation of its contractual obligations, approved a transaction relating to the transfer of its retail assets to Mukesh Dhirubhai Ambani Group (MDA), which is a restricted person as per the FCPL Shareholders Agreement; this transaction is referred to as the Disputed Transaction., On 5th October 2020, the petitioner initiated arbitration proceedings on the basis of the arbitration agreement contained in Clause 25.2.1 of the Shareholders Agreement dated 22nd August 2019, which provides for resolution of disputes according to the Rules of the Singapore International Arbitration Centre (SIAC). Clause 25.1 provides that the agreement shall be governed by and construed in accordance with the laws of India and that courts at New Delhi shall have exclusive jurisdiction over all matters relating to the agreement. Clause 25.2 stipulates that the seat of arbitration shall be New Delhi. On the same day, the petitioner filed an application seeking Emergency Interim Relief under Rule 30.2 and Schedule 1 of the SIAC Rules for restraining the respondents from pursuing the Disputed Transaction, whereupon SIAC appointed Mr. V. K. Rajah, Senior Counsel, as the Emergency Arbitrator., On 6th October 2020, Respondent 2 raised an objection to the jurisdiction of the Emergency Arbitrator, asserting that there was no arbitration agreement between the petitioner and Respondent 2. The petitioner submitted its response to the objections of Respondent 2 on 7th October 2020. On 9th October 2020, the Emergency Arbitrator fixed the schedule of the proceedings: the respondents were to file their reply by 12th October 2020, the petitioner’s rejoinder by 14th October 2020, and the hearing was set for 16th October 2020. The petitioner requested the respondents to maintain the status quo during the pendency of the proceedings, but the respondents declined to give any assurance to that effect., On 13th October 2020, the respondents submitted their reply before the Emergency Arbitrator, to which the petitioner filed its response. The Emergency Arbitrator then called upon both parties to submit their responses to four Supreme Court judgments: MTNL v. Canara Bank (2019 SCC Online SC 995); Chatterjee Petrochem v. Haldia Petrochemicals Ltd (2014) 14 SCC 574; M/s Duro Felguera S.A. v. M/S Gangavaram Port Ltd (2017) 9 SCC 729; and Ameet Lalchand Shah v. Rishabh Enterprises (2018) 1 SCC 678. Both parties submitted their responses. The respondents raised objections to the jurisdiction of the Emergency Arbitrator on various grounds, inter alia that Part I of the Arbitration and Conciliation Act does not contemplate a remedy before an Emergency Arbitrator; the appointment of an Emergency Arbitrator under the SIAC Rules was invalid; any order granted by the Emergency Arbitrator would not have the force of law under the Arbitration and Conciliation Act; and that the definition of an arbitral tribunal in Section 2(1)(d) of the Act does not include an Emergency Arbitrator. On 16th October 2020, the learned Arbitrator heard all parties through a video conference facilitated by Maxwell Chambers, Singapore., The Emergency Arbitrator passed an interim order on 25th October 2020. The interim order recorded the contentions of all parties, a detailed analysis of their submissions, and reasoned findings. The petitioner’s contentions are recorded in paragraphs 51 to 57, while the respondents’ contentions are recorded in paragraphs 58 to 93 of the interim order., The Emergency Arbitrator held that the Emergency Arbitrator is an arbitral tribunal for all intents and purposes and noted that Emergency Arbitrators are recognized under the Indian arbitration framework. The Arbitrator addressed the objection that Part I of the Indian Arbitration Act, 1996 does not contemplate a remedy before an Emergency Arbitrator, stating that Section 2(6) of the Act acknowledges party autonomy to determine certain issues relating to the arbitration, including authorising any person or institution to determine such issues. Section 19(2) of the Act allows parties to agree on the procedure to be followed by the arbitral tribunal, and the parties’ choice of the SIAC Rules manifests this authority. Section 2(8) incorporates the arbitration rules agreed to by the parties into the arbitration agreement, and Section 17 empowers an arbitral tribunal to grant interim reliefs; neither provision precludes parties from agreeing to institutional rules that allow recourse to an Emergency Arbitrator. The Arbitrator further observed that the 246th Law Commission Report’s suggestion to amend the definition of arbitral tribunal to include Emergency Arbitrators was not adopted by Parliament, but this does not affect the contractual validity of the parties’ agreement. Moreover, several domestic Indian arbitration institutions, including the Delhi International Arbitration Centre of the Delhi High Court, the Mumbai Centre for International Arbitration, and the Madhya Pradesh High Court Arbitration Centre, already provide for Emergency Arbitration, indicating recognition within the Indian framework., The Arbitrator concluded that the notion that Emergency Arbitration is alien to the Indian Arbitration Act, 1996, is contrary to the practice of Indian courts, including the Supreme Court of India, which have considered orders issued by Emergency Arbitrators within the framework of the Act without doubting their validity. All parties were advised by first‑tier Indian law firms when entering into the agreements and were aware of this legal position. The arbitration agreement in Section 25 of the FCPL Shareholders Agreement expressly provides that disputes shall be referred to and finally resolved by arbitration in accordance with the SIAC Rules. Having made a conscious, valid, and enforceable choice, the respondents cannot now resile from the terms of their arbitration agreement or diminish its efficacy., The Arbitrator set out the principles governing the Emergency Arbitrator’s powers under the SIAC Rules: (a) the Emergency Arbitrator must determine whether the requested relief qualifies as an interim measure and cannot grant final relief; (b) interim reliefs are aimed at maintaining the status quo, preventing imminent harm, preserving assets and evidence; and (c) the Emergency Arbitrator may only grant interim measures that have a temporary effect and cannot definitively resolve the dispute. The authority to order provisional measures derives from the parties’ agreement to arbitrate, and the SIAC Rules expressly confer such authority on an Emergency Arbitrator, which is binding on the parties subject to limited review under the Indian Arbitration Act, 1996., Future Retail Limited (Respondent 2) raised an objection before the Emergency Arbitrator that it was not a signatory to the FCPL Shareholders Agreement and therefore could not be drawn into the arbitration proceedings. The Emergency Arbitrator rejected this objection after a detailed analysis, holding that the arbitration agreement, although not signed by FRL, was intended to bind FRL as a non‑signatory under the Group of Companies doctrine and the principle of a single integrated transaction., The Arbitrator examined two issues: whether Indian law requires an arbitration agreement to be in writing and whether only signatories are proper parties to an arbitration agreement. The Supreme Court of India in Chloro Controls India Private Ltd. v. Severn Trent Water Purification Inc. (2013) 1 SCC 641 held that once a valid arbitration agreement exists, the question is which parties are bound, and third parties may be bound within the ratione personae scope. Section 25.2.1 of the FCPL Shareholders Agreement constitutes a valid arbitration agreement. Subsequent Supreme Court decisions, including Indowind Energy Ltd. v. Wescare (India) Ltd. (2010) 5 SCC 306, Cheran Properties Ltd. v. Kasturi and Sons Ltd. (2018) 16 SCC 413, and MTNL v. Canara Bank (2019) SCC Online SC 995, have evolved the law to allow non‑signatories to be bound by an arbitration agreement where the parties’ mutual intention and the Group of Companies doctrine demonstrate such intent. Section 2(1)(h) of the Arbitration and Conciliation Act, 1996 defines a ‘party’ as a party to the arbitration agreement, not merely a signatory, and the Supreme Court in Govind Rubber Ltd. v. Louis Dreyfus Commodities Asia Private Ltd. (2015) 13 SCC 477 reiterated that an arbitration agreement need not be signed by all parties to be effective., In oral submissions, FRL’s counsel, Mr. Harish Salve, did not dispute the legal propositions but emphasized that the public policy element and foreign direct investment restrictions in multi‑brand retail render the Group of Companies doctrine inapplicable, as applying it would defeat Indian law and policy, rendering the contract void. He argued that the intention of the parties was to ensure no contractual relationship between FRL and the petitioner, and that the group doctrine cannot be used to bind a listed company to private shareholder agreements. Conversely, the petitioner asserted that FRL’s objection is incorrect, pointing to the content of the agreements, simultaneous negotiations involving a single common team, full awareness of all respondents of the protective rights created for the petitioner, statutory disclosures, and the overall objective of making the petitioner the single largest shareholder of FRL while preserving retail assets and promoter shareholding. The petitioner further submitted that under Indian law, circumstances evidencing a single integrated bargain include a direct relationship with the party signatory to the arbitration agreement, commonality of subject matter, a composite transaction, and conduct of the non‑signatory demonstrating consent to be bound. Accordingly, the petitioner contends that FRL is a party in its own right by virtue of express and implied consent under a single integrated economic understanding, and that reliance on specific clauses of the FCPL and FRL Shareholders Agreements is misplaced.
id_502	1	The interlinkages of the clauses in the Agreements demonstrate that they constitute a single integrated transaction, with FRL being the beneficiary of the investment made by the Claimant into FCPL and rights created in favour of FCPL for the benefit of the Claimant. FRL's conduct reinforces this position; its disclosures in August 2019 about the FRL Shareholders' Agreement and the FCPL Shareholders' Agreement, as well as its execution of the 19 December 2019 Letter, confirm that it was aware of and considered itself bound by the terms of the FCPL Shareholders' Agreement. FRL's contention that the disclosure dated 22 August 2019 was merely for informational purposes is misleading and contrary to legal requirements, which clearly stipulate disclosure requirements for events that are material for a listed entity. This is consistent with the Respondent's conduct in the present arbitration, in as much as both FCPL and FRL have adopted an identical position in these proceedings., The Claimant submits that a cumulative consideration of all the aforementioned relevant considerations clarifies the frivolity of FRL's objection. The isolated references made to the extent of FCPL's shareholding in FRL, the presence of independent directors and the public shareholdings, or to the transferability of FRL's shares do not alter the fact that the Agreements are part of a single integrated bargain. The Respondents' argument that the Claimant's contention is not consistent with Section 15.17 of the FCPL Shareholders' Agreement is misleading. That provision is meant to clarify that the FCPL Shareholders' Agreement, by itself, does not trigger any open offer requirements under applicable Indian law, to ensure that this would only happen when the Claimant exercises its Call Option in accordance with the FCPL Shareholders' Agreement. This is not to say that the Claimant does not have protective, special and material rights with respect to FRL's Retail Assets., The exchange between Mr. Kishore Biyani (Respondent No. 3) and Mr. Amit Agarwal (Amazon India) in and around March to August 2020 demonstrates that the Claimant's interest in FRL was recognized and admitted. At the time, representatives of FRL initiated a dialogue regarding further investments into FRL and for the Claimant to take an active role in facilitating discussions with other potential investors. Mr. Sanjay Jain, the Group Chief Financial Officer of the Future Group, was facilitating discussions on behalf of FRL, and Mr. Rakesh Biyani (Respondent No. 8) also attended these discussions as a part of FRL's team., FRL, on the other hand, denies the existence of a single integrated bargain on the premise that Section 27.2 of the FCPL Shareholders' Agreement is an Entire Agreement provision, which precludes the Claimant from construing the FCPL Shareholders' Agreement together with the other relevant Agreements., In response, the Claimant asserts that the effect of an Entire Agreement clause depends primarily on its terms, since it is the language chosen by the Parties to express their agreement. It serves a dual objective of clarifying firstly that the instrument contains the entire agreement relating to the subject matter, to the exclusion of any further term that may be implied by law; and secondly, that the agreement will supersede any prior written or oral understanding between the Parties. By alluding to the existence of the single integrated transaction, the Claimant states that it is not attempting to imply any term into either the FCPL Shareholders' Agreement or the FRL Shareholders' Agreement. Equally, the Claimant is not attempting to include any prior written or oral understanding into the terms of the FCPL Shareholders' Agreement or the FRL Shareholders' Agreement., The Claimant's investment into FCPL (including the protective, special and material rights granted to it with respect to FRL's Retail Assets) under the FCPL Shareholders' Agreement read with the FRL Shareholders' Agreement is fully compliant with all laws. It is relevant that the Claimant could, in any event, have directly made the same investment into FRL under the foreign portfolio investor route recognized under Indian law and also obtained the same protective, special and material rights in FRL. Therefore, any question of the Claimant's investment being in violation of India's Foreign Direct Investment laws does not arise. Even otherwise, the Claimant's ability to exercise the FRL Call Option, as provided under Section 15 of the FCPL Shareholders' Agreement, clearly recognises that such an option will be exercised only in a manner compliant with Indian laws., Analysing the Submissions. Over the course of the last decade, the Supreme Court of India has conspicuously been at the forefront of a growing international consensus on how and when arbitral tribunals might legitimately exercise jurisdiction over intimately related parties involved in closely connected transactions. This is a sensible and pragmatic approach as it centralises in a single forum all the relevant parties that are intimately connected to the disputed transaction. It allows affiliated entities who have been intimately involved in negotiations and the performance of contracts to be subjected to and/or benefit from the presence of an arbitration clause entered into by another affiliate. This saves time and costs, hinders dilatory tactics, and precludes conflicting findings that may arise from satellite litigation in multiple forums. As a matter of business common sense, it stands to reason that affiliated commercial parties would ordinarily intend that intertwined disputes with a counterparty be resolved in one forum, for reasons of efficiency and certainty., In the three seminal decisions mentioned above, the Supreme Court of India set out the criteria that would satisfy a consent‑based enquiry that seeks to ascertain whether a non‑signatory ought to be brought within the scope of an arbitration clause it has not expressly acceded to. In the watershed decision of Chloro, the Supreme Court of India ruled: A non‑signatory or a third party could be subjected to arbitration without their prior consent, but this would only be in exceptional cases. The Supreme Court of India will examine these exceptions from the touchstone of direct relationship to the party signatory to the arbitration agreement, direct commonality of the subject‑matter and the agreement between the parties being a composite transaction. The transaction should be of a composite nature where performance of the mother agreement may not be feasible without the aid, execution and performance of the supplementary or ancillary agreements, for achieving the common object, and collectively having bearing on the dispute. Besides all this, the Supreme Court of India would have to examine whether a composite reference of such parties would serve the ends of justice. Once this exercise is completed and the Supreme Court of India answers the same in the affirmative, the reference of even non‑signatory parties would fall within the exception afore‑discussed., The Supreme Court of India will have to examine such pleas with greater caution and by definite reference to the language of the contract and intention of the parties. In the case of composite transactions and multiple agreements, it may again be possible to invoke such principle in accepting the pleas of non‑signatory parties for reference to arbitration. Where the agreements are consequential and in the nature of a follow‑up to the principal or mother agreement, the latter containing the arbitration agreement and such agreements being so intrinsically intermingled or interdependent that it is their composite performance which shall discharge the parties of their respective mutual obligations and performances, this would be a sufficient indicator of intent of the parties to refer signatory as well as non‑signatory parties to arbitration. The principle of composite performance would have to be gathered from the conjoint reading of the principal and supplementary agreements on the one hand and the explicit intention of the parties and the attendant circumstances on the other., In India, the law has been construed more liberally towards accepting incorporation by reference. In Vessel M.V. Baltic Confidence v. State Trading Corporation of India Ltd., the Supreme Court of India was considering the question as to whether the arbitration clause in a charter party agreement was incorporated by reference in the bill of lading and what the intention of the parties to the bill of lading was. The primary document was the bill of lading, which, if read in the manner provided in the incorporation clause thereof, would include the arbitration clause of the charter party agreement. The Supreme Court of India observed that while ascertaining the intention of the parties, attempt should be made to give meaning and effect to the incorporation clause and not to invalidate or frustrate it by giving it a literal, pedantic and technical reading., In Cheran, the Supreme Court of India held (per Dr Chandrachud) that as the law has evolved, it has recognised that modern business transactions are often effectuated through multiple layers and agreements. There may be transactions within a group of companies. The circumstances in which they have entered into them may reflect an intention to bind both signatory and non‑signatory entities within the same group. In holding a non‑signatory bound by an arbitration agreement, the court approaches the matter by attributing to the transactions a meaning consistent with the business sense which was intended to be ascribed to them. Therefore, factors such as the relationship of a non‑signatory to a party which is a signatory to the agreement, the commonality of subject‑matter and the composite nature of the transaction weigh in the balance. The group of companies doctrine is essentially intended to facilitate the fulfilment of a mutually held intent between the parties, where the circumstances indicate that the intent was to bind both signatories and non‑signatories. The effort is to find the true essence of the business arrangement and to unravel from a layered structure of commercial arrangements an intent to bind someone who is not formally a signatory but has assumed the obligation to be bound by the actions of a signatory., Does the requirement, as in Section 7, that an arbitration agreement be in writing exclude the possibility of binding third parties who may not be signatories to an agreement between two contracting entities? The evolving body of academic literature as well as adjudicatory trends indicate that in certain situations, an arbitration agreement between two or more parties may operate to bind other parties as well., Gary B. Born in his treatise on International Commercial Arbitration indicates that the principal legal bases for holding that a non‑signatory is bound (and benefited) by an arbitration agreement include both purely consensual theories (for example, agency, assumption, assignment) and non‑consensual theories (for example, estoppel, alter ego). Explaining the application of the alter ego principle in arbitration, Born notes: Authorities from virtually all jurisdictions hold that a party who has not assented to a contract containing an arbitration clause may nonetheless be bound by the clause if that party is an alter ego of an entity that did execute, or was otherwise a party to, the agreement. This is a significant, but exceptional, departure from the fundamental principle that each company in a group of companies (a relatively modern concept) is a separate legal entity possessed of separate rights and liabilities., Explaining the group of companies doctrine, Born states: the doctrine provides that a non‑signatory may be bound by an arbitration agreement where a group of companies exists and the parties have engaged in conduct (such as negotiation or performance of the relevant contract) or made statements indicating the intention assessed objectively and in good faith, that the non‑signatory be bound and benefited by the relevant contracts. While the alter ego principle is a rule of law which disregards the effects of incorporation or separate legal personality, in contrast the group of companies doctrine is a means of identifying the intentions of parties and does not disturb the legal personality of the entities in question. In other words, the group of companies doctrine is akin to principles of agency or implied consent, whereby the corporate affiliations among distinct legal entities provide the foundation for concluding that they were intended to be parties to an agreement, notwithstanding their formal status as non‑signatories., More recently, just last year, the Supreme Court of India in MTNL further clarified the position: A non‑signatory can be bound by an arbitration agreement on the basis of the Group of Companies doctrine, where the conduct of the parties evidences a clear intention of the parties to bind both the signatory as well as the non‑signatory parties. Courts and tribunals have invoked this doctrine to join a non‑signatory member of the group, if they are satisfied that the non‑signatory company was by reference to the common intention of the parties, a necessary party to the contract. The Group of Companies doctrine has been invoked by courts and tribunals in arbitrations, where an arbitration agreement is entered into by one of the companies in the group; and the non‑signatory affiliate, or sister, or parent concern, is held to be bound by the arbitration agreement, if the facts and circumstances of the case demonstrate that it was the mutual intention of all parties to bind both the signatories and the non‑signatory affiliates in the group. The doctrine provides that a non‑signatory may be bound by an arbitration agreement where the parent or holding company, or a member of the group of companies is a signatory to the arbitration agreement and the non‑signatory entity on the group has been engaged in the negotiation or performance of the commercial contract, or made statements indicating its intention to be bound by the contract; the non‑signatory will also be bound and benefitted by the relevant contracts. The circumstances in which the Group of Companies Doctrine could be invoked to bind the non‑signatory affiliate of a parent company, or inclusion of a third party to an arbitration, if there is a direct relationship between the party which is a signatory to the arbitration agreement; direct commonality of the subject matter; the composite nature of the transaction between the parties. A composite transaction refers to a transaction which is inter‑linked in nature; or, where the performance of the agreement may not be feasible without the aid, execution, and performance of the supplementary or the ancillary agreement, for achieving the common object, and collectively having a bearing on the dispute., It will be a futile effort to decide the disputes only between MTNL and Canara Bank, in the absence of CANFINA, since undisputedly, the original transaction emanated from a transaction between MTNL and CANFINA – the original purchaser of the Bonds. The disputes arose on the cancellation of the Bonds by MTNL on the ground that the entire consideration was not paid. There is a clear and direct nexus between the issuance of the Bonds, its subsequent transfer by CANFINA to Canara Bank, and the cancellation by MTNL, which has led to disputes between the three parties. Therefore, CANFINA is undoubtedly a necessary and proper party to the arbitration proceedings., Given the tripartite nature of the transaction, there can be a final resolution of the disputes only if all three parties are joined in the arbitration proceedings, to finally resolve the disputes which have been pending for over 26 years now., It is evident from the passages cited above that the Supreme Court of India has adopted a broad common sense and pragmatic approach in formulating this criteria. The minutiae of the terms of the subject contracts, even though not insignificant, should not constrain an adjudicatory body from determining which parties are within the scope of the contested arbitration clause. All the circumstances are to be considered when there is a composite transaction involving affiliated entities who are intimately involved in the same transaction., It is clearly not enough that the non‑signatory party whom a claimant seeks to include in arbitration proceedings is from the same group of companies or an affiliate. It is only in exceptional cases, where there exists the closest of connections between the parties as well as an indivisibility of the transaction(s) in question, that a non‑signatory ought to be included in an arbitration. This requires a consent‑based enquiry to ascertain the existence and degree of relational intimacy as well as the presence of an indivisible community of interests to resolve the dispute through a single common modality., The Claimant has prima facie satisfied the established legal criteria that makes FRL a proper party to these proceedings. The facts on record clearly establish the cogent commonality, intimate interconnectivity, and undeniable indivisibility of the contractual arrangements in the Agreements. It is apparent that none of these Agreements would have been entered into without the others. This indeed appears to be an intimate composite transaction between the Claimant and all the Respondents. FRL was actively involved in its negotiation, performance and was its ultimate beneficiary., Mr. Darius Khambata argues that if the Claimant's single integrated contract approach was adopted, the arrangement might likely be illegal, since the Claimant's rights as a foreign investor were limited. He further suggests that the Claimant has misled the Competition Commission of India on the structure of the relationships among the Parties. I do not think there is much substance in any of these arguments. First, the stake was not a direct investment made by the Claimant, but one through an Indian Owned Controlled Entity. This is a permissible arrangement under Indian law and appears to have received regulatory scrutiny. Second, the Agreements do not confer, and the Claimant has not attempted to assert control of or over FRL., The documents that the Claimant filed with the Competition Commission of India have to be read in their entirety, rather than cherry picked. A close reading does not suggest that there were misstatements made by the Claimant. It did not conceal its protective rights. Such protective rights do not amount to control of FRL. Rather, they oblige FRL not to act in a manner that would be inimical to the Claimant's interests, as its long‑term stakeholder., The following factors submitted by the Claimant prima facie make out a strong case for including FRL in these proceedings, by viewing it as being within the scope of the arbitration clause: (a) the intertwined content of the Agreements with several cross references and similar clauses in each of them; (b) simultaneous discussions and negotiations in relation to the Agreements. The FRL Shareholders' Agreement only came into existence because of the framework arrangement that the Agreements be entered into; (c) single/common negotiating and legal team representing all Respondents including FRL vis‑vis the Claimant in those discussions and negotiations including the FRL; (d) full awareness and knowledge of all the Respondents (including FRL) that protective, special and material rights are being created in favour of FCPL for the Claimant's benefit; (e) the purpose of the Claimant's financial collaboration was to strengthen and augment the business of FRL. It was the direct beneficiary of the investment by the Claimant. Section 6.4 of the Share Sale Agreement required FCPL to pay INR 14,990,000,000 to FRL in relation to the FRL Warrants within three business days of the Share Sale Agreement Closing Date; (f) statutory disclosures made by FRL to the public and statutory regulators of material terms of the Parties' Agreements via the disclosures of 12 August 2019 and 22 August 2019; (g) the coordinated conduct and efforts of the Respondents before as well as after the Agreements were entered into and the control asserted and exerted by Respondent No. 3 over all aspects of the entire transaction. He was, in fact, acknowledged to be the Ultimate Controlling Person as regards the Future Group; (h) the objectives of the Agreements, i.e., for the Claimant (at some time when permissible) to become the single largest shareholder of FRL, implemented through the preservation of (i) the Retail Assets of FRL and (ii) the Promoters' shareholding in FRL, free from any encumbrance. Notably, from April to July 2020, representatives from the Future Group have sought additional investments from the Claimant into FRL, prepared and discussed various structure options for the Claimant's investment to benefit FRL, increase the Claimant's stake in FRL and also proposed that the Claimant's nominee would be on the board of directors of FRL. It is clear that rights were created in favour of FCPL (through the FRL Shareholders' Agreement), for the benefit of the Claimant (under the FCPL Shareholders' Agreement), and all the Respondents were fully aware and actively participated in those negotiations; and (i) similar dispute resolution clauses prevail in all the Agreements. Even the FRL Shareholders' Agreement (which is essentially a domestic agreement) has an SIAC dispute resolution clause., It is also material that, before the effective date of the Agreements, FRL accepted the 19 December 2019 Letter sent by FCPL, without qualification. The 19 December 2019 Letter manifested the interconnectivity of the Agreements and, in particular, the dispute resolution clauses. The sending and acceptance of the 19 December 2019 Letter stating the names of the Restricted Persons was a pre‑condition required by the Claimant, prior to the Effective Date of the FCPL Shareholders' Agreement and Share Sale Agreement coming into force. The Claimant only made its investment on 26 December 2019 after this was done. Paragraph 5 of the 19 December 2019 Letter incorporates any dispute over the disposal of the Retail Assets to a Restricted Person, under the terms of the FRL Shareholders' Agreement, into the FCPL Shareholders' Agreement. It creates a direct link between the FCPL Shareholders' Agreement (pursuant to which the letter was sent) and the FRL Shareholders' Agreement to resolve disputes, should a breach take place. This is precisely the situation here., In Chloro, the Supreme Court of India set out four criteria to be met in order for a non‑signatory to be included in arbitral proceedings. They are that: (a) all parties have a direct relationship to the party signatory to the arbitration agreement; (b) there be direct commonality of the subject‑matter, with the agreement between the parties comprising a composite transaction; (c) the transaction should be of a composite nature, where performance of the mother agreement may not be feasible without the aid, execution, and performance of the supplementary or ancillary agreements, for achieving the common object, and collectively having bearing on the dispute; (d) besides all this, a composite reference of such parties must also serve the ends of justice., Subsequently, the Supreme Court of India in Cheran and MTNL did not advert to the justice factor. This is likely because they were adopting a consent‑based conceptual analysis to ascertain whether it was the parties' intention to include non‑signatory affiliate companies within the scope of the arbitration agreement. This makes eminent sense and lends conceptual clarity to the rationale for including a non‑signatory to arbitral proceedings as a proper party, by anchoring its inclusion to satisfying a consent analysis. Once there is consent, the non‑signatory ought to be bound since a contractual relationship has already been found., If it is necessary to satisfy criterion (d), this is also prima facie met as it is undoubtedly just that all the relevant affiliated parties, given their proximity and the indivisibility of the Agreements, be included in the same proceedings for reasons of efficiency, promptness, avoidance of conflicting or inconsistent decisions, and, crucially, after considering all the other criteria have been amply satisfied., Last but not least, the Parties have all assented to SIAC arbitral proceedings on identical terms. The Parties' mutual obligations are inexorably linked. This matter is, at its core, about a group of affiliated companies entering into an indivisible contractual arrangement with the Claimant within a conceptual framework that they all unequivocally consented to., The learned Arbitrator recorded the contentions of the petitioner on merits in paragraphs 173 to 203 and the respondents' contentions in paragraphs 204 to 223. The analysis of the contentions of the parties is recorded in paragraphs 224 to 236 of the award. In paragraph 237, the learned Arbitrator recorded his satisfaction that the petitioner has made out a strong prima facie case that the respondents are in breach of their contractual obligations and/or undertakings to the petitioner under the three agreements. Paragraphs 224 to 237 of the interim order are reproduced hereunder: Analysis of Parties' Contentions – The Merits., It is not disputed by the Respondents that the Claimant entered into the subject transactions on the basis of being accorded two broad categories of special and protective rights. The first is that the Retail Assets of FRL would not be alienated without its prior written consent, and never to a Restricted Person. The Respondents further agreed that FRL would remain the sole vehicle for conduct of the retail business. The second set of rights are that, if Indian laws permitted, the Claimant could become the single largest shareholder of FRL. In relation to this right, the Majority Respondents specifically agreed to maintain the Minimum Shareholding of 16.18% free from encumbrance., The Claimant is also correct in asserting that it is immaterial that (i) the Promoter FRL Securities were invoked on account of existing arrangement with Promoter Lenders, and (ii) that they were disclosed as part of the Disclosure Letters. It is clear that when the arrangements were entered into, the Claimant was already aware that the Promoter FRL Securities had been encumbered by the Promoters and that on 26 December 2019, Promoter FRL Securities constituting only approximately 17% were free from encumbrances. Because of this, the Parties agreed to the specific provisions relating to the Minimum Shareholding, enjoining the Promoters from further encumbering the Promoter FRL Securities. Preservation of the Minimum Shareholding was a solemn obligation under Section 17.2(i) of the FCPL Shareholders' Agreement and the Promoters were, accordingly, under an obligation notwithstanding anything to the contrary contained in the Agreements. The Promoters acknowledge that they have failed to maintain the Minimum Shareholding free and clear from encumbrances., The Respondents are contractually obliged not to alienate the Retail Assets in favour of a Restricted Person. It is apparent, from the responses of the Majority Respondents, that they do not deny that they have breached their contractual obligations under the Agreements concerning the Retail Assets., The Respondents have not disputed that the ownership of Retail Assets continues to be vested with FRL pending the completion of the Disputed Transaction. FRL has stated that statutory approvals for the completion of the Disputed Transaction will take quite some time., It is plain as a pikestaff that, if the Disputed Transaction proceeds, the special and protective rights with respect to the Retail Assets that the Claimant has under the contractual arrangements entered into with the Respondents will be irretrievably lost. There is substance in the Claimant's submission that the widespread network of retail stores across India, which was built by FRL over a period of several years, is a uniquely strategic asset for it., It is apparent that the Respondents have acted in concert contrary to the obligations they have undertaken and in a manner that is inimical to the Claimant's interests., Even accepting Mr. Singh's statement from the Bar that 5.53% of the shares were sold on 10 September 2020, the Promoters continue to collectively remain the single largest shareholders of FRL with fragmented public shareholding, and are therefore in control of FRL. In various public filings made by FRL, the Majority Respondents have been identified and hold themselves out as promoters of FRL. Indian law defines a promoter to include a person or set of persons who have control over the affairs of the issuer whether as a shareholder, director or otherwise, or a person in accordance with whose advice, directions or instructions the board of directors of a company is accustomed to act., I accept the Claimant's submission that Mr. Kishore Biyani, Respondent No. 3, the executive chairman, founder and Group CEO of the Future Group, and Mr. Rakesh Biyani, Respondent No. 8, the Managing Director of FRL, are responsible for driving the business of FRL. A managing director, by definition, is a person who is vested with substantial powers of management of the affairs of a company. Respondents Nos. 4 to 7 and 9 to 11 are related to Mr. Kishore Biyani and Mr. Rakesh Biyani. Respondents Nos. 1, 12 and 13 are private limited companies, which are owned and controlled by the Promoters. It cannot be gainsaid that the Majority Respondents first drove, then caused FRL to enter into the Disputed Transaction and are now seeking to implement that as early as possible.
id_502	2	Mr. Salve emphasised that Future Retail Limited (FRL) was not a party to the contractual framework set out in the Future Coupons Private Limited Shareholders Agreement (FCPL SHA) and the Share Subscription Agreement (SSA), that it was entitled to assume that Future Coupons Private Limited (FCPL) had acted properly in sanctioning the Disputed Transaction, and that its Board included a number of independent directors who were not related to the promoters. As far as FRL was concerned, this was a regular transaction. I do not accept this. First, FRL was aware that the Claimant’s consent (and not just FCPL’s) was needed for any sale of the Retail Assets, and in particular to a Restricted Person. It had notice of the contents of the 19 December 2019 Letter addressed to it and of the inter‑connectivity of the Agreements. Second, the members of FRL’s Board, and in particular Respondents No. 3 and No. 8, must have known that the Claimant’s consent had not been obtained. It does not appear that they recused themselves when the Board Resolution was passed and/or the independent directors were acting on their own motion, uninfluenced by any of the Majority Respondents qua directors and shareholders (representing the Biyanis). Third, the other independent directors must have been aware of this restriction. They were holding office as directors when FRL sent the Disclosure Letters to the Indian Stock Exchanges about the terms of the FRL Shareholders Agreement, the FCPL Shareholders Agreement and the SSA. Before the Effective Date, FRL was also put on notice who were the Restricted Persons vide the 19 December 2020 Letter. Fourth, the Respondents had decided not to produce any minutes of FRL’s Board Meeting apropos the Disputed Transaction to show whether any enquiry was made as to whether the Claimant had given its consent and/or the minutes of any FCPL board meeting on the consent issue. For completeness, I am not quite convinced that the Board Resolution is void as asserted by the Claimant, but that legal characterisation is not material for now. What is important for present purposes is that they have prima facie established that the Respondents have breached a number of their contractual obligations., Mr. Singh very properly did not attempt to argue that no contractual breaches had been committed by the Majority Respondents. Instead, he premised his submissions on the basis that I was to assume against his clients the way that the cause of action has been framed by the Claimant. Mr. Salve also adopted a similar stance and made his submissions on a demurrer basis without accepting the correctness of the Claimant’s factual assertions and the jurisdiction of this Arbitration Tribunal apropos FRL. He, nevertheless, candidly acknowledged: “And we know today that the promoters have a serious case to answer on breach, and they are saying there was a term where they would have had to help, they have not helped us, we are not in breach. I am arguing this on the footing that the promoters have breached some arrangement with Amazon.”, Finally, I note that the Press Release sent by FRL to the two Stock Exchanges on 29 August 2020 is captioned “Future Group reorganises its businesses; to sell retail, wholesale, logistics and warehouse businesses to Reliance Retail”. This says it all., Taking into account the above circumstances, I am satisfied on the merits that the Claimant has made out a strong prima facie case that the Respondents are in breach of their contractual obligations and undertakings to the Claimant under the FCPL Shareholders Agreement, the Share Subscription Agreement and the FRL Shareholders Agreement (insofar as it is incorporated into the FCPL Shareholders Agreement)., The respondents raised an objection before the Emergency Arbitrator that there was delay on the part of the petitioner to invoke the arbitration and therefore the petitioner was not entitled to the emergency relief. The Emergency Arbitrator rejected this objection holding that there was no undue delay on the part of the petitioner. The relevant discussion contained in paragraphs 254 to 262 of the interim order is reproduced hereunder: I have set out in some detail the most significant interactions/exchanges between the Claimant and the Respondents that are on record, which show that the Respondents’ assertion that the Claimant had given up its rights or was aware of the nature and substance of the discussions that were being conducted with Reliance/MDA Group are incorrect. The discussions with Reliance were conducted behind its back. It appears that the Respondents have not been entirely candid. They have not disclosed precisely when they began and settled negotiations with the MDA Group for the sale of FRL’s assets. The increasingly frantic nature of the Claimant’s communications with Mr Kishore Biyani and its stark reminders that its consent was needed for any disposal of FRL’s Retail Assets indicates that it was not a non‑chalant contractual by‑stander., The Claimant was at no material point of time informed by the Respondents of the nature, terms or substance of the Disputed Transaction. During the several exchanges that the Claimant’s officers had with the promoters and key members of the Future Group between March 2019 and 29 August 2020, no disclosure was ever made by the promoters about the key terms of Track 1. How was the Claimant expected to match this? When did the Respondents actually decide to disengage from the Claimant? Why were the Respondents not candid with the Claimant?, The central plank of Mr Singh’s submissions is attractive for its enticing simplicity. It is that since the unencumbered portion of the promoters’ shares is now merely nearly 0.5 % there is no realistic possibility of the Claimant ever becoming FRL’s largest shareholder if and when legally permitted. However, I cannot agree with this submission. The discussions that the Claimant and the Respondents were engaged in were meant to address this particular problem as well. Accepting that the Respondents’ position(s) had been prejudiced, the Claimant agreed to work with the Respondents to repair the damage. Mr Yeo is correct in saying that the Claimant was not sitting on its hands., The correspondence and the exchanges summarised above clearly show that the Claimant was actively committed to working with the Respondents. The intention was to formulate a rescue package that would address all the existing financial problems confronting the Respondents. Indeed, in early June even after the amount of unencumbered shares had been dramatically and drastically reduced, Mr Rakesh Biyani thanked the Claimant for support to build the strategic partnership and solve the problem with an alternate solution. He stated that multiple solutions were being considered and that the involvement of the Claimant and other investors would be a better option. On 23 June 2020, the Claimant wrote to Mr Kishore Biyani clearly requesting to know what specifically could help the Premji or other financial investment offer to solve the problem. Mr Rakesh Biyani responded on 24 June 2020 sharing a note that offered multiple options apropos FRL’s business. It is evident from these discussions that multiple solutions were being considered that called for the Claimant to make additional investments into FRL. Mr Rakesh Biyani requested that the Claimant support Samara. Indeed, even until 24 August 2020, Mr Rakesh Biyani conveyed to the Claimant that he was still open to the Samara investment route. It appears odd that he should communicate this, as it was just five days before the Disputed Transaction was announced. There is no evidence on record to show that the Respondents were actively considering the Samara deal and continuing to engage the Claimant in good faith between July and 29 August., I am therefore prima facie satisfied that the Claimant was at all material times open to working with the Respondents for their common good and long‑term benefit. Quite obviously this would have meant formulating a scheme that would concurrently protect its legitimate rights and expectations under the Agreements. It is striking that the Respondents have not asserted that the Claimant broke off the discussions or engagement to assist them in their recapitalisation efforts and in the amelioration of their financial woes. Perhaps they could not make such an assertion because the facts on record paint a clear picture of repeated enquiries and reminders from the Claimant as to when and how they could progress the rescue discussions. However, it now appears that the Claimant’s forbearance to exercise its legal rights by giving the Respondents time to formulate a rescue scheme is being used against it., It bears reiteration that while the Claimant was aware that the Respondents were engaged in discussions with Reliance it has not been suggested that they were aware of the precise details of what it entailed save for what was being reported in the media. The documents on record show that the Respondents fobbed off the Claimant when it queried them. All the Claimant could do (and did) was to ask for updates and remind them of their legal obligations not to dispose of the Retail Assets or deal with a Restricted Entity., The Respondents had, in good times, entered into a long‑term commercial arrangement with the Claimant. In exchange for a very substantial investment that benefitted FRL the Respondents conferred a number of rights on the Claimant and emphatically undertook to protect them. Their relationship was by no means a short‑term commercial flirtation of convenience. There were no force majeure clauses or exit terms that allowed any of the parties to resile from their obligations if and when the going got tough. The Agreements envisaged an enduring and deep relationship that was intended to survive through thick and thin. These contractual undertakings obliged the Respondents to work with the Claimant to resolve the prevailing difficulties the Future Group’s businesses were facing and make it apparent that the Respondents should not have entered into alternative arrangements which compromised the Claimant’s rights without its express consent., It would have been premature for the Claimant to have taken any steps against the Respondents prior to the public announcement of the Disputed Transaction. No reasonable Arbitration Tribunal would rely on media reports as a basis for interim relief. The lapse of about a month between the time the public announcement was made and this application being filed is neither long nor unreasonable in the circumstances. Filing an application of this nature is a complex and challenging process that requires painstaking research and preparation. The Claimant also used this period to make further enquiries, gather more information and make known its concerns about the validity of the Disputed Transaction. It did not encourage the Respondents to proceed with the Disputed Transaction., I now return to Mr Singh’s submissions. The horse has not bolted even though the Respondents have opened the stable door. Even assuming that the horse has bolted, it is apparent that the Respondents are contractually obliged to work with the Claimant to cajole the unruly horse to return to its stable., The Emergency Arbitrator held the balance of convenience to be in favour of the petitioner and further held that the petitioner would suffer irreparable injury if the interim injunction was not granted. FRL has acknowledged that the Indian Stock Exchanges and the Competition Commission of India are now actively considering and reviewing the application for approval of the Disputed Transaction. It is also clear that it is actively engaged in pursuing these applications and is providing data, clarifications and responses to requests to facilitate the completion of the Disputed Transaction. Should FRL receive the approval of the Indian Stock Exchanges, applications will then likely be made to the National Company Law Tribunal to approve the Disputed Transaction. FCPL has also stated that it is open to the Claimant to approach the NCLT, as and when the NCLT process commences, to seek to restrain the Disputed Transaction if it can make out the grounds for such relief. As the parties have agreed to resolve all their differences under the auspices of a Singapore International Arbitration Centre Tribunal, this is not a pertinent consideration. FRL is a listed company with more than three hundred thousand shareholders, over twenty‑five thousand employees and several other stakeholders (including banks and financial institutions). The COVID‑19 pandemic has had a significant impact on Indian businesses, particularly the retail sector in which FRL carries on business. The Disputed Transaction seeks to protect the interest of all these stakeholders through a large infusion of funds and acquisition of liabilities of the business. If the reliefs sought by Amazon are granted, it may seriously jeopardise the Disputed Transaction and the interest of FRL’s stakeholders would be adversely affected. The loss and damage caused to FRL and its stakeholders would not be capable of being safeguarded by any cross‑undertaking on damages by Amazon., The Respondents are the primary authors of this unhappy situation. Granted, the COVID‑19 pandemic caused them unforeseeable difficulties and substantial losses and, without fresh capital, FRL’s future appears unstable. But even in these situations the law expects businesspersons to honour their contractual commitments unless these have been legally vitiated or modified. Economic hardship alone is not a legal ground for disregarding legal obligations. The Respondents have given no good legal reasons for conducting business behind the Claimant’s back and gravely compromising its interests., The Respondents also assert that the Claimant’s claims ought to sound entirely in damages. They state that there is no explanation why the Claimant’s purported losses cannot be compensated in monetary terms other than a bare assertion that that is not the case. In response, the Claimant asserts that it stands to lose its strategic interest in an irreplaceable and widespread network of retail stores across India, which was built over a period of several years. The special, protective and material rights with respect to the Retail Assets represent a valuable and strategic asset to the Claimant and the loss of its interests in these Retail Assets cannot be compensated in monetary terms. The Respondent’s premise that damages are the only remedy is wrong. The Parties themselves agreed in the FCPL Shareholders Agreement (as well as the FRL Shareholders Agreement and the SSA) that damages may not be an adequate remedy for a breach and that the parties shall be entitled to an injunction, restraining order, specific performance or such other equitable relief as a court of competent jurisdiction may deem necessary to restrain the other party from committing any violation or to enforce performance of the covenants, representations and obligations contained in the Agreement., It is plain that the Claimant’s interests in FRL and the related entities represent a unique proposition from a strategic national and global perspective. This was not just a skin‑deep business investment by a sleeping partner. The Claimant evinced every intention of growing a deeper and broader relationship with the Future Group within lawful parameters. The Respondents had (until recently) enthusiastically responded to this. The Claimant is a global entity with massive resources and does not appear to be looking for quick returns in its engagement with the Respondents., It is also a cogent consideration that the Disputed Transaction is with a competitor that the Claimant had expressly singled out as a Restricted Person. The parties unequivocally agreed to this investment parameter. This restriction appears to have been a critical consideration for the Claimant and the Effective Date of the subject transaction took place only after notification of the List of Restricted Persons. While the Claimant was aware prior to the Disputed Transaction that the Respondents were considering a proposal from the MDA Group there is no evidence that they knew about the substance of the discussions. In any event, the Claimant expressly made known its concerns once the channel of communications between the parties broke down and it dawned upon the Claimant that it was being side‑lined. The fact that the MDA Group, a strategic competitor, is willing to pay an enormous amount of money even in these troubled times for the purchase of FRL’s Retail Assets is in itself a testament to the uniquely strategic value of the relationships and assets at stake., Even after the Majority Respondents’ free shares dropped to 0.65 % it is apparent that they still have effective control of FRL. Indeed, they have not intimated that they have lost real control of FRL. Respondents No. 3 and No. 8 appear to be in effective control of the Future Group and its affiliates and they are driving the sale of FRL’s assets and the restructuring plans. Despite this, in arguing against injunctive relief the Majority Respondents now profess that they have no ability to defer any application before any authority not having made any applications. I do not accept this for the reasons given above., If interim relief is not awarded to the Claimant now it is plain that the Respondents will continue to take steps to complete the Disputed Transaction. They have said as much. When queried by me the Respondents plainly stated that they will not give any assurances to preserve the current status quo pending the outcome of these proceedings. It will take quite some time for the Arbitration Tribunal to be constituted and after that to consider any applications for interim relief (let alone finally determine the parties’ differences). The greater the progress made towards the completion of the Disputed Transaction, the harder it will be to unravel it. Over time, the interests of additional third parties may also become entwined with the Disputed Transaction and be subsequently compromised., In sum, the more delay in giving relief the greater the prejudice to the Claimant. It is apparent that at some point in the very near future, restoring the Claimant’s rights will become impossible. The grave and imminent threat to the destruction of the rights conferred on it by the Respondents under the Agreements merits immediate interim relief., In the circumstances, I am prima facie satisfied that it is just that the Claimant be entitled to orders restraining the Respondents from proceeding further with the Disputed Transaction until further order from the Arbitration Tribunal. This is to take effect immediately on notification of this Interim Award. The Claimant is to provide within seven days from the date hereof a cross‑undertaking in damages to the Respondents. The parties are to immediately work together to settle the terms of this cross‑undertaking. If they cannot agree on this, it should be referred to me as Emergency Arbitrator for resolution. The costs of this application are to be part of the costs of this arbitration., The Emergency Arbitrator concluded that FRL is prima facie a proper party to the FCPL Shareholders Agreement arbitration clause; the petitioner has a strong prima facie case on the merits of the dispute; the petitioner’s rights under the FCPL Shareholders Agreement, the SSA, and the FRL Shareholders Agreement (insofar as it has been incorporated into the FCPL Shareholders Agreement) have been apparently compromised by the Respondents and the Respondents have given no good legal reasons for effecting the sale of FRL’s Retail Assets to the Restricted Person behind the petitioner’s back. The conclusions drawn by the learned Arbitrator are reproduced in paragraphs 277 to 284 of the interim order. Considering the unquestionably significant consequences that the outcome of the application could have on the parties and others, the Arbitrator painstakingly reviewed all submissions and facts to ascertain whether a prima facie case on the merits and on jurisdiction had been established as well as whether interim relief should be granted. The Arbitrator found that FRL is prima facie a proper party to the FCPL Shareholders Agreement arbitration clause, that there is prima facie jurisdiction, and that the Claimant has built a strong prima facie case on the merits by showing that its rights under the FCPL Shareholders Agreement, the SSA, and the FRL Shareholders Agreement have been apparently compromised. The Claimant has an apparent right to be present at any table considering the restructuring of FRL and the Future Group because the core assets of FRL cannot be compromised without its consent. The Respondents are the primary authors of this unhappy situation; even though the COVID‑19 pandemic caused them unforeseeable difficulties and substantial losses, the law expects businesspersons to honour their contractual commitments unless legally vitiated or modified. FRL’s retail chains are unique and have peculiar strategic importance and value to the Claimant. The Majority Respondents’ assertion that the horse has bolted is incorrect; the horse has not bolted even though the Respondents have opened the stable door, and the Respondents are contractually obliged to work with the Claimant to cajole the unruly horse to return to its stable. The more delay in giving relief the greater the prejudice to the Claimant, and it is just to award interim relief to restrain the Respondents from taking any further steps in connection with the Disputed Transaction., The operative part of the order and the directions given by the Emergency Arbitrator are recorded in paragraph 285 of the interim order: (a) the Respondents are injuncted from taking any steps in furtherance or in aid of the Board Resolution made by the Board of Directors of FRL on 29 August 2020 in relation to the Disputed Transaction, including but not limited to filing or pursuing any application before any person, including regulatory bodies or agencies in India, or requesting approval at any company meeting; (b) the Respondents are injuncted from taking any steps to complete the Disputed Transaction with entities that are part of the MDA Group; (c) without prejudice to the rights of any current promoter lenders, the Respondents are injuncted from directly or indirectly taking any steps to transfer, dispose, alienate or encumber FRL’s Retail Assets or the shares held in FRL by the promoters in any manner without the prior written consent of the Claimant; (d) the Respondents are injuncted from issuing securities of FRL or obtaining/securing any financing, directly or indirectly, from any Restricted Person that will be contrary to Section 13.3.1 of the FCPL Shareholders Agreement; (e) the orders in (a) to (d) are to take effect immediately and will remain in place until further order from the Arbitration Tribunal, when constituted; (f) the Claimant is to provide within seven days from the date hereof a cross‑undertaking in damages to the Respondents, and if the parties are unable to agree on its terms they are to refer their differences to the Emergency Arbitrator for resolution; (g) the costs of this application are to be part of the costs of this arbitration., The Biyanis led by Kishore Biyani (Respondent No. 3) and Rakesh Biyani (Respondent No. 8) are the controlling shareholders of Future Retail Limited (FRL) and Future Coupons Private Limited (FCPL). Mr Kishore Biyani is the Executive Chairman and Director of FRL, and Mr Rakesh Biyani is the Managing Director of FRL. FRL is India’s second largest organized offline retailer and has approximately 1,534 retail stores across India. Its widespread retail network is therefore an invaluable strategic asset. The Biyanis wanted to collaborate with strategic foreign investors with a long‑term vision to grow the business of the Future Group, who would be a long‑term partner and stakeholder in FRL, and would further enable the Biyanis to monetize their existing shareholding in FRL. If and when Indian laws changed, this investor could choose to become the controlling shareholder of FRL. As a first step, the Biyanis re‑structured an existing Future Group entity, FCPL, to acquire securities of FRL, and correspondingly acquire special, material and protective rights in FRL. This structure enabled the Biyanis to attract an investor and ensure that the investor and the Biyanis could jointly enjoy these rights in FRL. Consequently, on 12 August 2019 FRL, FCPL and the Biyanis entered into a Shareholders Agreement for providing certain special, protective and material rights to FCPL (FRL‑SHA). At the time of execution of the FRL‑SHA, the Biyanis (together with FCPL) held approximately 50.89 % shares of FRL. The FRL‑SHA provided that FRL would require FCPL’s consent with respect to only three matters: (i) if FRL is proposing to transfer its retail assets, (ii) amendment of the Articles of Association of FRL not consistent with the FRL‑SHA, and (iii) issuance of shares of FRL not in accordance with the FRL‑SHA. FCPL did not have any other veto rights with respect to FRL. FRL was also restricted from transferring its assets to Restricted Persons. On 12 August 2019 FRL made a public disclosure regarding the execution of the FRL‑SHA and limited veto rights of FCPL. On 22 August 2019 FCPL, the Biyanis and Amazon also entered into a Shareholders Agreement (FCPL‑SHA) relating to their rights as shareholders of FCPL. On the same day, FCPL, the Biyanis and Amazon entered into a Share Subscription Agreement for an investment of INR 1,431 crores by Amazon to acquire 49 % of FCPL. Through the FCPL‑SHA, the Biyanis undertook that Amazon and the Biyanis would jointly exercise the rights of FCPL in FRL (on the limited three matters), and agreed that they would not decide on these matters without Amazon’s consent. This was a fundamental inducement for Amazon. Amazon was also granted a call option to become the single largest shareholder of FRL when Indian laws permitted Amazon to become the single largest shareholder. FRL was restricted from transferring its assets to a Restricted Person. The FCPL‑SHA also listed the restricted persons and included the MDA Group. The Biyanis and FCPL confirmed and represented to Amazon that the provisions of the FCPL‑SHA, including Amazon’s rights with respect to FRL, were compliant with and enforceable under Indian law. On 22 August 2019, FRL, despite not being party to the FCPL SHA, made a disclosure regarding the FCPL‑SHA.
id_502	3	On 19th December 2019, Future Consumer Products Ltd (FCPL) issued a letter to Future Retail Ltd (FRL) confirming that the FRL Shareholders' Agreement (SHA) had come into effect and provided the list of restricted persons which was identical to the list agreed by Biyanis in the FCPL. On 26th December 2019, Amazon invested Rs. 1,431 crore in FCPL and the FCPL SHA came into effect. This entire amount was invested by FCPL in FRL as agreed in the Share Subscription Agreement (SSA). On 26th December 2019, the Articles of Association of FCPL were amended by the Biyanis to reflect Amazon’s rights, including the fact that Biyanis will not exercise FCPL’s limited rights in FRL without Amazon’s consent., In June 2020, the Biyanis and FRL directly approached Amazon to provide additional funding to FRL. At that time, FRL represented to Amazon and other existing investors that FRL needed INR 5,000 crore to resolve its distress. FRL also indicated that any further funding from Amazon could come through the same structure as Amazon’s investment. While Amazon was engaging in discussions with FRL to resolve FRL’s problems, FRL entered into discussions with MDA Group. On several occasions, including 27th August 2020, Amazon enquired about the discussions with MDA Group but FRL only provided vague responses., On 29th August 2020, FRL announced that its Board of Directors had approved a transaction with a Restricted Person (the MDA Group) (Disputed Transaction). In terms of the transaction, FRL would amalgamate into another Future company, Future Enterprise Limited (FEL). Shareholders of FRL, including FCPL, would receive shares of FEL, and FRL would cease its business operations and would be dissolved. FEL would then transfer the retail business to MDA Group at a pre‑agreed price and FEL would be stripped of its core retail assets. The shareholders of FRL, and consequently FEL, would therefore become shareholders of an entity that has no material business, giving rise to a substantial loss to the shareholders of FEL and in turn of FRL., The Biyanis, who control FRL, neither disclosed the transaction nor obtained consent for the Disputed Transaction (notably, evidence of consent from FCPL was not provided before the Emergency Arbitrator). Under the FCPL SHA read with the FRL SHA, FCPL required Amazon’s consent for any disputed transaction. Accordingly, FCPL could not have consented to the Disputed Transaction., Aggrieved by the breaches of the agreements, on 5th October 2020 Amazon initiated arbitration proceedings against Biyanis, FCPL and FRL (Arbitration Proceedings) in terms of Section 25 and Section 27.7(ii) of the FCPL SHA before the Singapore International Arbitration Centre (SIAC). Amazon also invoked Rule 30.1 of the SIAC Rules 2016 and sought appointment of an emergency arbitrator to grant emergency interim relief. On 5th October 2020 SIAC appointed Mr. V. K. Rajah, Senior Counsel as the Emergency Arbitrator., FRL participated in the proceedings before the Emergency Arbitrator by filing detailed written pleadings and participating in the oral hearing (including a plea that FRL was not a party to the FCPL SHA and that the Emergency Arbitrator lacked jurisdiction). After hearing all the parties, the Emergency Arbitrator passed his order on 25th October 2020 holding that FRL and the Biyanis had prima facie breached the Agreements, and restrained FRL and other respondents from proceeding with the Disputed Transaction (Emergency Arbitrator Order). The Emergency Arbitrator held that such protective rights do not amount to control of FRL; rather, they oblige FRL not to act in a manner inimical to the Claimant’s interests as its long‑term stakeholder., From 26th October 2020 FRL began publicly impugning the validity of the Emergency Arbitrator Order by claiming it was a nullity under Indian law. FRL also actively pursued regulators to ignore the Emergency Arbitrator Order and grant their approvals for the Disputed Transaction., With a view to mount a collateral challenge to the ongoing arbitral proceedings and the Emergency Arbitrator Order, FRL filed a suit before the Delhi High Court on the ground that Amazon was interfering with a lawful transaction between FRL and MDA Group. FRL also sought interim relief restraining Amazon from writing to regulators. However, during the hearing of Interim Application No. 10376 of 2020, FRL stated that it was not claiming an anti‑arbitration injunction, nor was it challenging the Emergency Arbitrator Award. The learned Single Judge in the order dated 21st December 2020 noted that Mr. Harish Salve, learned Senior Counsel appearing for the plaintiff, further stated that in the interim application he was not seeking any anti‑arbitration injunction or any anti‑suit injunction., FRL had raised an objection to jurisdiction before the SIAC Court on the ground that it was not a party to the arbitration agreement in terms of Rule 28 of the SIAC Rules. On 25th November 2020 the SIAC Court rejected FRL’s objection and held that arbitration proceedings would continue against FRL., On 21st December 2020 a learned Single Judge of the Delhi High Court declined to grant interim relief to FRL and held that the Emergency Arbitrator Order was coram iudicium under Indian law. The learned Single Judge noted that the merits of the Emergency Arbitrator Order were not under challenge and such challenge would not have been maintainable. The learned Single Judge also recorded that the Emergency Arbitrator Order was not invalid and not coram non iudicium., Despite the learned Single Judge holding that the Emergency Arbitrator Order was valid and binding, Biyanis, FRL and its key managerial personnel made several false and misleading submissions to Indian regulators claiming that the entire basis of the Emergency Arbitrator Order had been vitiated pursuant to the Court Order., On 5th January 2021 SIAC constituted the Arbitral Tribunal. In terms of paragraph 10 of Schedule I of the SIAC Rules, the validity of the Emergency Arbitrator Order is extended during the duration of the arbitral proceedings., Given that FRL was making misleading submissions on the basis of certain prima facie observations in the Court Order while rejecting Interim Application 10376 of 2020, seeking restraint on Amazon from making representations to statutory authorities and falsely claiming that there was acquisition of control over FRL by Amazon, Amazon preferred a limited appeal before the Division Bench of the Delhi High Court on 11th January 2021. The matter was heard on 13th January 2021 and, while issuing notice to the respondents, the Division Bench fixed the next date of hearing on 12th February 2021., On 20th January 2021 the Indian Stock Exchanges granted their conditional no‑objection to the Disputed Transaction. The aforesaid no‑objection is, by its own terms, subject to the outcome of the arbitral proceedings., On 25th January 2021 Amazon served an advance copy of the present petition to FRL. FRL made a disclosure relating to the same on the same day., With a view to pre‑empt any action in the present petition and to effectively frustrate the present proceedings, FRL filed an application before the National Company Law Tribunal seeking approval of the Disputed Transaction on 26th January 2021. No official confirmation for NCLT filings has been submitted to date., The interim order dated 25th October 2020 passed by the Emergency Arbitrator is enforceable as an order of the court under Section 17(2) of the Arbitration and Conciliation Act, 1996., Section 2(6) of the Arbitration and Conciliation Act gives freedom to the parties to authorize any person, including an institution, to determine the disputes between the parties. Section 2(8) provides that the agreement to authorize an institution shall include any arbitration rules referred to in that agreement., The Emergency Arbitrator is an arbitrator under SIAC Rules read with Sections 2(1)(d), 2(6) and 2(8) of the Arbitration and Conciliation Act. Under SIAC Rules, the Emergency Arbitrator occupies the position of and functions as an arbitrator till the Arbitral Tribunal is fully constituted. Rule 1.3 of SIAC Rules defines an Emergency Arbitrator as an arbitrator appointed in accordance with Schedule 1. Rules 38, 39 and Schedule 1 – Rules 4, 5, 7, 8 and 12 reinforce the position that an Emergency Arbitrator occupies the position of an arbitrator and functions as an arbitrator., The interim order dated 25th October 2020 contains interim injunctions to protect and safeguard the subject matter of the disputes, which squarely falls within the ambit of an interim measure under Section 17(1) of the Arbitration and Conciliation Act., The order passed under Section 17(1) of the Arbitration and Conciliation Act is enforceable as an order of the civil court under Section 17(2) of the Arbitration and Conciliation Act. Reliance is placed on Alka Chandewar v. Shamshul Ishrar Khan, (2017) 16 SCC 119; HDB Financial Services Limited v. Kings Baker Private Limited, 2019 SCC Online Ker 702; Tayabbhai M. Bagaswarwalla v. Hind Rubber Industries, (1997) 3 SCC 443; and Manoj C.J. v. Shriram Transport Finance Company Limited, 2020 SCC Online Ker 4241., The order dated 25th October 2020 has attained finality insofar as no appeal has been filed by the petitioner under Section 37 of the Arbitration and Conciliation Act against that order., The respondents, and in particular FRL, have consistently violated the Emergency Arbitrator order with impunity., The respondent raised an objection to jurisdiction before the Emergency Arbitrator. The Emergency Arbitrator analysed the relevant provisions including Section 17 of the Arbitration and Conciliation Act. The Emergency Arbitrator noted that the Rules of Delhi International Arbitration Centre, 2018 provide for Emergency Arbitration and Rule 14.8 provides that the order of an Emergency Arbitrator shall be enforceable in the manner provided in the Arbitration and Conciliation Act. The Emergency Arbitrator concluded that the Emergency Arbitrator is an arbitral tribunal for all intents and purposes. In paragraphs 104 to 106 it is noted that Emergency Arbitrators are recognized in the Indian arbitration framework., Despite claiming that the Emergency Arbitrator Order is a nullity and not binding on it, on 28th January 2021 FRL formally approached the Arbitral Tribunal to vacate the Emergency Arbitrator Order., Submissions of respondents – The petition is ex‑facie not maintainable. Section 17 of the Arbitration and Conciliation Act, 1996, after its amendment in 2015, provides that an order issued by an arbitral tribunal shall be enforceable as an order of the court. Prior to this, an interim order could be made by the tribunal, but its enforcement had to be through the court. An interim order by the tribunal was, by legal fiction, elevated to the status of an order of the court., Section 17(2) creates a legal fiction which has to be construed no wider than its plain language permits. The section provides that any order issued by the arbitral tribunal under this section is enforceable as an order of the court. The order under Section 17(1) is an order which may be made during the arbitral proceedings or after the making of the arbitral award. The arbitral proceedings before a tribunal can only commence after the appointment of the arbitral tribunal., The order of an Emergency Arbitrator is not an order of the arbitral tribunal. It is not an order that can be appealed under Section 37 since it is not an order of the arbitral tribunal., The question whether an Emergency Arbitrator can be appointed, consistent with Indian law and in an arbitration governed by the Act, is a secondary issue. Even if the parties may agree to the appointment of an Emergency Arbitrator by choosing rules of procedure which envisage such appointment, such an arbitrator is not the arbitral tribunal within the meaning of Section 2(1)(d) of the Act., The language of Section 17(2) cannot be stretched nor can the definition of arbitral tribunal be expanded by construction to create a situation where an order of an Emergency Arbitrator is put at par with the order passed by an arbitral tribunal constituted in accordance with the agreement of the parties., Even under the SIAC Rules, an Emergency Arbitrator is distinct from, and is not, the arbitral tribunal; Rule 30 of the SIAC Rules (pertaining to grant of interim reliefs) itself distinguishes between an arbitral tribunal and an emergency arbitrator. Rule 30.1 states that the tribunal may issue an order or award granting injunction or interim reliefs as it deems appropriate. In contrast, Rule 30.2 states that a party that wishes to seek emergency interim relief prior to the constitution of the tribunal may apply for such relief pursuant to the procedures set forth in Schedule 1. Alternatively, Rule 30.3 provides the option to the parties to approach a judicial authority prior to the constitution of the tribunal., Rule 1.3 of the SIAC Rules defines an Emergency Arbitrator as an arbitrator appointed in accordance with paragraph 3 of Schedule 1 whereas it defines tribunal to include a sole arbitrator or all the arbitrators where more than one arbitrator are appointed. Further, the definition of award under Rule 1.3 also draws the same distinction. It is defined to include a partial, interim or final award and an award of an Emergency Arbitrator. Schedule 1 of the SIAC Rules also makes it explicit that an Emergency Arbitrator is not an arbitral tribunal., Rule 1 of Schedule 1 provides that a party seeking emergency interim reliefs may, concurrent with or following the filing of a notice of arbitration but prior to the constitution of the tribunal, file an application for emergency interim relief with the registrar., Rule 6 of Schedule 1 provides that an Emergency Arbitrator may not act as an arbitrator in any future arbitration relating to the dispute, unless otherwise agreed by the parties., Rule 10 of Schedule 1 of SIAC Rules provides that the Emergency Arbitrator shall have no power to act after the tribunal is constituted and that the tribunal may reconsider, modify or vacate any interim order or award issued by the Emergency Arbitrator, including a ruling on its own jurisdiction. The tribunal is not bound by the reasons given by the Emergency Arbitrator. Any interim order or award issued by the Emergency Arbitrator shall, in any event, cease to be binding if the tribunal is not constituted within 90 days of such order or award or when the tribunal makes a final award or if the claim is withdrawn., According to respondent No.2, the petitioner's reliance on the Rules of the Delhi International Arbitration Centre, Mumbai Centre of International Arbitration and Madras High Court Arbitration Centre, which provide for emergency arbitration procedures to contend that emergency arbitration is recognised under Indian law, is misconceived as these rules cannot override the mandatory provisions of the Act. In fact, these rules (Rule 1.2 of the DIAC Rules, Rule 1.1 of the MCIA Rules and Rule 1.4 of the MHCAC Rules) provide that in the event that any of the rules are in conflict with a mandatory provision of law applicable to the arbitration/agreement from which the parties cannot derogate, the mandatory provision would prevail. These rules are also applicable to foreign‑seated arbitrations, as they permit the parties to choose a seat of choice. In the context of foreign‑seated arbitrations, emergency arbitration procedure may be permitted if it is in consonance with the law of the seat of the arbitration., The email dated 12th January 2021 issued by the Presiding Arbitrator stated that the arbitral tribunal had been constituted only on 5th January 2021. Thus, the Emergency Arbitrator Order could never be an order of the arbitral tribunal under the provisions of the Act., Indian courts have taken note of orders of Emergency Arbitrators only in the context of foreign‑seated arbitrations under Part II of the Act where proceedings were filed under Section 9 to seek enforcement of the foreign Emergency Arbitrator’s order. Pertinently, there is no judgment of any Indian court which treats an Emergency Arbitrator’s order as one passed under Section 17 of the Act., In Raffles Design International Pvt Ltd v. Educomp Professional Education Ltd & Ors 2016 SCC Online Delhi 5521 (case under Part II of the Act) this Court observed (at paragraph 104) that an emergency award cannot be enforced under the Act and the only method for enforcing the same would be for the petitioner to file a suit. It was clarified (at paragraph 105) that alternatively parties may independently approach the court under Section 9 of the Act not for enforcing the order of the Emergency Arbitrator but instead for the court to independently apply its mind and grant interim relief where warranted. Thus, Raffles holds that an order of an Emergency Arbitrator is not valid under Indian law., On 20th November 2020 the Competition Commission of India granted its approval. On 20th January 2021 the approvals were granted by SEBI and the stock exchanges respectively without any adverse observation, as the same is in the interest of all stakeholders (including small investors, creditors, scheduled banks and other banks) who have lent funds to various Future Group companies, employees and vendors attached to these companies and provide overall solution for benefit of all the stakeholders. In prayer clause (e) of the present petition, the petitioner has sought relief restraining the respondents from relying upon any approval granted by any regulatory body or agency in India, arising out of any application initiated or pursued by the respondents, contrary to the directions of the Emergency Arbitrator Order, including the no‑objection granted by SEBI dated 20th January 2021 as also the approvals granted by BSE, NSE and CCI. It is pertinent to mention that the Delhi High Court by its order dated 21st December 2020 directed the statutory authorities/regulators to apply their mind to the facts and legal issues and take a decision after considering the representations and counter‑representations of FRL and Amazon to the statutory authorities and regulators. Further to such directions of the Delhi High Court, SEBI and stock exchanges have granted approval in accordance with law., On 26th January 2021 FRL filed the Scheme of Amalgamation with the National Company Law Tribunal, Mumbai Bench, before which the matter is pending and will be decided in accordance with the procedure under Section 230 of the Companies Act, which is a self‑contained code., Reliance is placed on paragraphs 7.10, 9.17, 9.19, 9.18, 10.31, 11.16, 11.22, 12.3 and 13 of the judgment dated 21st December 2020 in CS (COMM) 493/2020 titled Future Retail Ltd. v. Amazon.Com Investment Holdings LLC, 2020 SCC Online Delhi 1636., Additional submissions of respondent No.2 – The order dated 25th October 2020 passed by the Emergency Arbitrator cannot be enforced under Section 17 of the Arbitration and Conciliation Act for the following reasons: (i) Section 17 of the Act applies to orders passed by an arbitral tribunal constituted in accordance with the Act, and the Act does not include emergency arbitrators. (ii) In any event, the Emergency Arbitrator Order is a nullity insofar as FRL is concerned, as there is admittedly no arbitration agreement between FRL and Amazon, and combining the two agreements or three agreements would result in Amazon acquiring control over FRL, which would be violative of Indian law as held in Future Retail Ltd. v. Amazon.Com Investment Holdings LLC (supra). (iii) In Future Retail Ltd. v. Amazon.Com Investment Holdings LLC (supra) this Court has held that the Board Resolution dated 29th August 2020 of FRL approving the transaction with Reliance is valid and that FRL is within its legal rights to act upon the resolution. A contrary interim order by an Emergency Arbitrator would necessarily be superseded, for any relief granted pursuant to that interim order would be contrary to a later order passed by this Court in Future Retail Ltd. v. Amazon.Com Investment Holdings LLC (supra) to which Amazon was a party. The attempt by Amazon to enforce the Emergency Arbitrator Order, despite it being overridden by the judgment, is an abuse of process., The order of the Emergency Arbitrator is a nullity insofar as FRL is concerned. The finding of the Emergency Arbitrator that he had jurisdiction over FRL is not conclusive because the Emergency Arbitrator misapplied the law and the contracts to confer jurisdiction upon himself., There is no arbitration agreement in writing between FRL and Amazon and the Emergency Arbitrator misapplied the concept of group companies to hold that the two SHAs have to be read together. The agreements cannot be read together and if so done, it would result in violation of the Foreign Exchange Management Act, 1999., The principle of group companies arises under Section 8 of the Arbitration and Conciliation Act to transfer proceedings in court to arbitration not only where the plaintiff is a party to an arbitration agreement but also where a plaintiff is claiming through a person who is a party to an agreement., FRL is not a party to the Shareholders Agreement dated 22nd August 2019 and to the Share Subscription Agreement dated 22nd August 2019 between Amazon, FCPL and the promoters, Biyanis, whereas Amazon is not a party to the agreement dated 12th August 2019 between FRL, FCPL and the promoters. The plea that the three agreements constitute a single integrated bargain is misconceived, which is clear from the relevant clauses of the agreement. If the three agreements are treated as a single integrated transaction, it would violate the provisions of the Foreign Exchange Management (Non‑Debt Instruments) Rules, 2019 (FEMA FDI Rules). Reference is made to paragraphs 10.29, 10.30 and 10.31 of Future Retail Ltd. v. Amazon.Com Investment Holdings LLC (supra)., Prayer (e) of this petition seeking restraint against the respondents from relying upon the approval granted by any regulatory body/agency contrary to the Emergency Arbitrator order is a backdoor challenge to the regulatory authorities’ decision in accordance with law., Amazon has challenged the order dated 21st December 2020 in Future Retail Ltd. v. Amazon.Com Investment Holdings LLC (supra) before the Division Bench of the Delhi High Court in appeal. Reference is made to Grounds 12, 14, 15 and 16 of the appeal., Petitioner’s response to respondents’ submissions – FRL has failed to appreciate that in the present proceedings the validity of the Emergency Arbitrator Order cannot be detracted from. It was further conscious that the Court could not go behind the Emergency Arbitrator Order in a collateral attack. In Future Retail Ltd. v. Amazon.Com Investment Holdings LLC (supra) the learned Single Judge maintained that the suit could not and did not constitute an action to challenge and annul the Emergency Arbitrator Order on merits. FRL seeks to re‑agitate arguments on merits which cannot be gone into in the present proceedings. These arguments were urged before the Emergency Arbitrator and were rejected. There is no lack of inherent jurisdiction insofar as the Emergency Arbitrator is concerned. Hence, the Emergency Arbitrator Order cannot be declared void or a nullity. The admitted facts are as follows: (i) FRL has agitated its case with respect to the Emergency Arbitrator having no authority, before the Emergency Arbitrator himself, which was rejected. (ii) FRL has not appealed against the Emergency Arbitrator Order till date. (iii) On the evening of 28th January 2021, shortly after the hearing on the petition concluded, FRL stated its intent before the Arbitral Tribunal to file an application for vacation of the Emergency Arbitrator Order; hence, admitting that the Emergency Arbitrator Order is binding on FRL. (iv) The only challenge to the Emergency Arbitrator Order, if any, was a collateral challenge before the learned Single Judge of the Delhi High Court in CS (COMM) 493/2020 on the misconceived ground that the Emergency Arbitrator was coram non iudicium and outside the framework of the Arbitration and Conciliation Act, 1996. This challenge, which was earlier rejected by the Emergency Arbitrator himself, was also expressly rejected by the learned Single Judge, who held that the Emergency Arbitrator Order was valid under the Arbitration and Conciliation Act, 1996 and therefore not a nullity., It is trite law that while enforcing an order under Section 17(2) of the Arbitration and Conciliation Act, 1996, a court cannot sit in appeal over the order. The Emergency Arbitrator is within the scope of the definition of arbitral tribunal under Section 2(1)(d) of the Arbitration and Conciliation Act., FRL erroneously alleges that the Emergency Arbitrator Order has been superseded by the order of the learned Single Judge. The learned Single Judge did not go into the merits of the Emergency Arbitrator Order and expressly holds that the court could not have gone into the same. The learned Single Judge also rejected not just FRL’s argument that the Emergency Arbitrator Order is coram non iudicium, but also denied it any interim reliefs sought. Consequently, FRL’s allegation that the Emergency Arbitrator Order is a nullity stands rejected.
id_502	4	FRL, in accordance with Rule 28.2 of the Singapore International Arbitration Centre Rules read with Section 16 of the Arbitration and Conciliation Act, 1996, raised this objection before the Tribunal via its emails dated 16 January 2021 and 28 January 2021. A challenge to the jurisdiction of the Arbitral Tribunal can only be raised in a manner recognised under the Arbitration and Conciliation Act, 1996, and raising such a challenge in the present enforcement proceeding is not in accordance with that Act., The Emergency Arbitrator's finding that FRL is a proper party to the arbitration is now sought to be assailed on merits by urging the appropriate Indian court to go behind the Emergency Arbitrator Order, erroneously mischaracterising it as a nullity. The Emergency Arbitrator had jurisdiction to decide whether FRL was a proper party to the arbitration proceedings. The Emergency Arbitrator held that Amazon has prima facie satisfied the established legal criteria that makes FRL a proper party to the arbitral proceedings. FRL now argues, albeit speciously, that the Emergency Arbitrator misapplied the concept of the Group of Companies doctrine and therefore suggests that the Emergency Arbitrator Order is a nullity. The Emergency Arbitrator held that all parties assented to SIAC arbitral proceedings on identical terms and their mutual obligations are inexorably linked. He further held that the matter is, at its core, about a group of affiliated companies entering into an indivisible contractual arrangement with Amazon within a conceptual framework that they all unequivocally consented to. The Emergency Arbitrator considered the application of the Group of Companies doctrine to the facts, including landmark decisions of the Supreme Court of India in Chloro Controls India Pvt. Ltd., Cheran Properties and MTNL v. Canara Bank. He held that under Section 2(1)(h) of the Arbitration and Conciliation Act, 1996, a party is defined as a party to the arbitration agreement, not merely a signatory, and therefore FRL is a party to the arbitration proceedings. The close inter‑connected nature of the agreements, simultaneous negotiations by a common legal team, FRL's awareness that protective, special and material rights were being created for Amazon's benefit, and FRL being a direct beneficiary of monies invested by Amazon were key considerations for holding that FRL is a proper party to the arbitration proceedings applying the Group of Companies doctrine., In view of the above, having elected to raise this jurisdictional challenge before the Emergency Arbitrator and the Singapore International Arbitration Centre, FRL cannot re‑agitate this objection in the present proceedings, which are for enforcement of the Emergency Arbitrator Order. This is contrary to the principle of kompetenz‑kompetenz under Section 16 of the Arbitration and Conciliation Act, 1996. FRL has not challenged the Emergency Arbitrator Order on merits in the suit. Further, during the arguments in the suit, FRL gave up its prayer to interdict the arbitration proceedings to which it is a party. The occasion of averting to the reasoning of the Emergency Arbitrator or superseding or vacating the Emergency Arbitrator Order did not arise in the suit. Amazon has no control over FRL., FRL now alleges that the Emergency Arbitrator Order is a nullity because combining the two agreements would result in Amazon acquiring control over FRL, which would be violative of the Foreign Exchange Management Act. This constitutes, at best, a defence in the arbitration proceedings and was urged as a defence in those proceedings. It is not an argument on nullity but an argument on merits, which has been rejected by the Emergency Arbitrator. The plain facts are that the respondents induced an investment from Amazon based on specific representations, that the investment is in accordance with law and that control remains with the respondents despite the special, material and protective rights. However, the respondents, contrary to the express terms of the agreements and their representations, acted in egregious breach of their obligations without justification by proposing to dispose of the retail assets to a restricted person, namely the Mukesh Dhirubhai Ambani Group. In the absence of any defence to breach of contract, and having taken full benefit of Amazon's investments, the respondents now seek to impugn the very agreements entered into by them, through common advocates, by alleging breach of the Foreign Exchange Management Act. In May 2020, additional investments were sought from Amazon in FRL in a manner similar to its investment in FCPL along with a seat on the board of directors of FRL. The Emergency Arbitrator specifically noted that these options for Amazon to invest were considered permissible by the parties. Having benefited from substantial investment from Amazon under the agreements, FRL and the other respondents are in breach of their contractual obligations. In particular, FRL's argument that Amazon's investment in FCPL and the exercise of rights under the FCPL Shareholders' Agreement to prevent the sale of FRL's retail assets to a restricted person violates the law cannot be permitted, especially since this argument has been considered by the Emergency Arbitrator and expressly rejected., The Emergency Arbitrator held that protective rights do not amount to control of FRL; rather, they oblige FRL not to act in a manner inimical to the claimant's interest as its long‑time stakeholder. In the absence of filing an appeal, it is impermissible to assail the Emergency Arbitrator Order on merits. The Doomsday Argument: FRL argues that if the scheme falls through, it is inevitable that FRL will go into liquidation. This is an argument of desperation wholly alien to an enforcement proceeding and was rejected on the merits by the Emergency Arbitrator. Amazon was always ready, willing and able to assist FRL in a manner consistent with law through its distress and engaged to find a commercial solution by identifying non‑restricted partners and considering infusing money through a structure similar to that of FCPL. However, despite Amazon providing a contractually compliant arrangement, the Biyanis drove into a transaction with a restricted person, namely the MDA Group. FRL entered into the disputed transaction despite having been engaging with Amazon until four days before the transaction was announced. Hence, any allegation that Amazon did not engage to find a solution or to take care of FRL in its financial distress is factually incorrect. Amazon reiterates its position to assist FRL and explore viable solutions. The Emergency Arbitrator found that (i) the respondents had entered into long‑term commercial arrangements with Amazon entities in exchange for substantial investment that benefited FRL, conferring a number of rights on Amazon and undertaking to protect them; (ii) the relationship was not a short‑term commercial flirtation; (iii) the Biyanis first drove and then caused FRL to enter into the disputed transaction; (iv) Amazon was not an idle spectator and actively sought to engage with the respondents to support an alternative rescue scheme; (v) a term sheet from potential investors acceptable to Amazon was provided to the promoters; (vi) without providing Amazon the details of the disputed transaction or engaging in further negotiations, the promoters chose to proceed; (vii) the Emergency Arbitrator was satisfied that Amazon was, at all material times, open to working with the respondents for their common good and long‑term benefits; (viii) Amazon has not walked away from the rescue table and continues to appear keen to work with the respondents; (ix) Amazon has every interest in protecting its significant investment in FRL by working with the respondents to rejuvenate it., It may be noted regretfully that the respondent filed an application under Sections 230‑232 of the Companies Act, 2013 for seeking approval of the National Company Law Tribunal after receiving a copy of the present petition on 25 January 2021. This attempt to over‑reach the appropriate Indian court must be discountenanced., VII. Relevant Provisions – Arbitration and Conciliation Act, 1996 – Section 2 (Definitions): (a) arbitration means any arbitration whether or not administered by a permanent arbitral institution; (b) arbitration agreement means an agreement referred to in Section 7; (c) arbitral award includes an interim award; (d) arbitral tribunal means a sole arbitrator or a panel of arbitrators; (h) party means a party to an arbitration agreement. Where this Part, except Section 28, leaves the parties free to determine a certain issue, that freedom shall include the right of the parties to authorise any person, including an institution, to determine that issue. Where this Part (a) refers to the fact that the parties have agreed or may agree, or (b) in any other way refers to an agreement of the parties, that agreement shall include any arbitration rules referred to in that agreement., Section 7 – Arbitration agreement: In this Part, arbitration agreement means an agreement by the parties to submit to arbitration all or certain disputes which have arisen or may arise between them in respect of a defined legal relationship, whether contractual or not. An arbitration agreement may be in the form of an arbitration clause in a contract or a separate agreement. An arbitration agreement shall be in writing. It is in writing if it is contained in (a) a document signed by the parties; (b) an exchange of letters, telex, telegrams or other means of telecommunication, including electronic communications that provide a record of the agreement; or (c) an exchange of statements of claim and defence in which the existence of the agreement is alleged by one party and not denied by the other. A reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement if the contract is in writing and the reference makes that arbitration clause part of the contract., Section 17 – Interim measures ordered by arbitral tribunal: A party may, during the arbitral proceedings, apply to the arbitral tribunal for the appointment of a guardian for a minor or person of unsound mind for the purposes of the proceedings, or for an interim measure of protection in respect of (a) preservation, interim custody or sale of any goods which are the subject‑matter of the arbitration agreement; (b) securing the amount in dispute; (c) detention, preservation or inspection of any property or thing which is the subject‑matter of the dispute and authorising any person to enter upon any land or building in the possession of any party, or authorising samples to be taken, observations to be made, or experiments to be tried; (d) interim injunction or the appointment of a receiver; (e) any other interim measure of protection as may appear just and convenient. The arbitral tribunal shall have the same power for making orders as the court has for the purpose of, and in relation to, any proceedings before it. Subject to any orders passed in an appeal under Section 37, any order issued by the arbitral tribunal under this section shall be deemed to be an order of the appropriate Indian court for all purposes and shall be enforceable under the Code of Civil Procedure, 1908, as if it were an order of that court., Section 19 – Determination of rules of procedure: The arbitral tribunal shall not be bound by the Code of Civil Procedure, 1908 or the Indian Evidence Act, 1872. Subject to this Part, the parties are free to agree on the procedure to be followed by the arbitral tribunal. Failing any agreement, the tribunal may conduct the proceedings in the manner it considers appropriate, including determining the admissibility, relevance, materiality and weight of any evidence., Section 37 – Appealable orders: Notwithstanding any other law, an appeal shall lie from (a) an order refusing to refer the parties to arbitration under Section 8; (b) an order granting or refusing any measure under Section 9; (c) an order setting aside or refusing to set aside an arbitral award under Section 34. An appeal shall also lie from an order of the arbitral tribunal (i) accepting the plea referred to in Section 16(2) or (3); or (ii) granting or refusing an interim measure under Section 17. No second appeal shall lie from an order passed in appeal under this section, but nothing shall affect the right to appeal to the Supreme Court of India., Code of Civil Procedure, 1908 – Section 51 (Powers of court to enforce execution): Subject to prescribed conditions, the court may, on application of the decree‑holder, order execution of the decree by delivery of specific property, attachment and sale or sale without attachment, arrest and detention in prison (not exceeding the period specified in Section 58), appointment of a receiver, or any other manner as the nature of the relief requires. Provided that where the decree is for payment of money, execution by detention in prison shall not be ordered unless, after giving the judgment‑debtor an opportunity to show cause, the court is satisfied in writing that the debtor is likely to abscond, has concealed or removed property, or is acting in bad faith, or that the debtor has means to pay but refuses or neglects to do so, or that the decree is for a sum for which the debtor was bound in a fiduciary capacity to account., Order XXI – Rule 32 (Decree for specific performance, restitution of conjugal rights, or injunction): Where a party against whom a decree for specific performance, restitution of conjugal rights, or injunction has been passed has had an opportunity to obey the decree and wilfully fails to do so, the decree may be enforced by attachment of his property or, in the case of a corporation, by attachment of the corporation's property or, with the court's leave, detention in civil prison of its directors or principal officers. If attachment remains for six months without compliance and the decree‑holder applies for sale, the property may be sold and the court may award compensation to the decree‑holder, with any balance paid to the judgment‑debtor on application. Where the judgment‑debtor has obeyed the decree, the attachment shall cease., Rule 2‑A – Consequence of disobedience or breach of injunction: In case of disobedience of any injunction or breach of its terms, the court granting the injunction may order attachment of the guilty person's property and may also order detention in civil prison for up to three months, unless the court directs release. No attachment shall remain in force for more than one year; if the breach continues, the attached property may be sold and the court may award compensation to the injured party, paying any balance to the entitled party., Singapore International Arbitration Centre Rules, 2016 – Rule 1.3: An award includes a partial, interim or final award and an award of an Emergency Arbitrator. Emergency Arbitrator means an arbitrator appointed in accordance with paragraph 3 of Schedule 1. Tribunal includes a sole arbitrator or all arbitrators where more than one is appointed. Rule 28 – Jurisdiction of the Tribunal: 28.1 If any party objects to the existence or validity of the arbitration agreement or to the competence of SIAC to administer an arbitration before the tribunal is constituted, the Registrar shall determine if the objection shall be referred to the appropriate Indian court. If so, the court shall decide if it is prima facie satisfied that the arbitration shall proceed; otherwise the arbitration shall be terminated. Any decision that the arbitration shall proceed is without prejudice to the tribunal's power to rule on its own jurisdiction. 28.2 The tribunal shall have the power to rule on its own jurisdiction, including any objections to the existence, validity or scope of the arbitration agreement. An arbitration agreement forming part of a contract shall be treated as independent of the other terms. A decision that the contract is null and void shall not ipso jure invalidate the arbitration agreement, and the tribunal shall not lose jurisdiction because the contract is alleged to be non‑existent or void. 28.3 Any objection that the tribunal does not have jurisdiction shall be raised no later than in a statement of defence or in a statement of defence to a counter‑claim; an objection that the tribunal is exceeding its jurisdiction shall be raised within 14 days after the matter alleged to be beyond the tribunal's jurisdiction arises. The tribunal may admit a belated objection if the delay is justified. A party is not precluded from raising an objection by having nominated or participated in the nomination of an arbitrator. 28.4 The tribunal may rule on an objection either as a preliminary question or in an award on the merits. 28.5 A party may rely on a claim or defence for the purpose of a set‑off to the extent permitted by these rules and applicable law. Rule 30 – Interim and Emergency Relief: 30.1 The tribunal may, at the request of a party, issue an order or award granting an injunction or any other interim relief it deems appropriate, and may require the requesting party to provide appropriate security. 30.2 A party seeking emergency interim relief prior to the constitution of the tribunal may apply pursuant to the procedures in Schedule 1. 30.3 A request for interim relief made to a judicial authority before the tribunal is constituted, or in exceptional circumstances thereafter, is not incompatible with these rules. A party may file an application for emergency interim relief concurrently with or following the filing of a notice of arbitration but before the tribunal is constituted, sending a copy to all other parties. The application must state the nature of the relief sought, the reasons for entitlement, and a certification that all other parties have been provided with a copy or an explanation of steps taken in good faith to provide notice. The application must be accompanied by payment of the non‑refundable administration fee and requisite deposits for the Emergency Arbitrator’s fees and expenses. The President, if determining that SIAC should accept the application, shall seek to appoint an Emergency Arbitrator within one day of receipt of the application and payment of fees. If the parties have agreed on the seat of arbitration, that seat shall be the seat for emergency interim relief; otherwise the seat shall be Singapore, without prejudice to the tribunal’s determination of the seat under Rule 21.1. Prior to accepting appointment, a prospective Emergency Arbitrator shall disclose any circumstances that may give rise to doubts as to his impartiality or independence. Any challenge to the appointment must be made within two days of the communication of the appointment. The Emergency Arbitrator may not act as an arbitrator in any future arbitration relating to the dispute unless otherwise agreed. The Emergency Arbitrator shall, as soon as possible and in any event within two days of appointment, establish a schedule for consideration of the application, providing a reasonable opportunity for the parties to be heard, which may include telephone, video conference or written submissions. The Emergency Arbitrator shall have the powers vested in the tribunal, including authority to rule on his own jurisdiction, without prejudice to the tribunal’s determination. He may order or award any interim relief he deems necessary, give summary reasons in writing, and may modify or vacate the order for good cause. The interim order or award shall be made within 14 days of appointment unless extended by the Registrar, and shall not be binding if the tribunal is not constituted within 90 days or when a final award is made. The parties agree that an order or award by an Emergency Arbitrator shall be binding from the date it is made, and they waive any right of appeal, review or recourse to any state court or other judicial authority to the extent validly made. Costs may be initially apportioned by the Emergency Arbitrator, subject to the tribunal’s final determination., Delhi International Arbitration Centre (DIAC) Arbitration Proceedings Rules, 2018 – Section 2.1(c): \Arbitral Tribunal\ or \Tribunal\ means the person(s) acting as arbitrators or a sole arbitrator and includes an Emergency Arbitrator. Part E – Emergency Arbitration and Interim Relief – 14. Emergency Arbitration – 14.1
id_502	5	If a party requires urgent interim or conservatory measures that cannot await the formation of the Arbitration Tribunal, it may make an application to the Secretariat addressed to the Coordinator, with a simultaneous copy to the other parties to the arbitration agreement for such measures. The party making such an application shall include a statement briefly describing the nature and circumstances of the relief sought, specific reasons why such relief is required on an emergency basis, and the reasons why the party is entitled to such relief; pay the relevant application fee for the appointment of the Emergency Arbitrator; and file proof of service of such application upon the opposite parties., The Emergency Arbitrator's fee shall be as prescribed in the Delhi International Arbitration Centre (Administrative Costs and Arbitrators Fees) Rules and the party invoking the provision of Emergency Arbitrator shall deposit such fees along with the application., The Secretariat, with the consent of the Chairperson or the Sub‑Committee appointed by the Chairperson, shall appoint the Emergency Arbitrator within two days of the request (excluding non‑business days). Prior to accepting his appointment, a prospective Emergency Arbitrator must disclose to the Coordinator any facts or circumstances which may give rise to justifiable doubts as to his impartiality or independence. Any challenge to the appointment must be made within one business day of the communication by the Coordinator to the parties of the appointment and the disclosed circumstances., An Emergency Arbitrator may not act as an arbitrator in any future arbitration relating to the dispute unless agreed by all the parties., The Emergency Arbitrator so appointed shall schedule a hearing, including the filing of pleadings and documents by the parties, within two business days of his appointment. He shall provide a reasonable opportunity to be heard to all the parties before granting any urgent, interim or conservatory measures and shall make an order giving reasons. The parties shall comply with any order made by the Emergency Arbitrator., The Emergency Arbitrator shall have the power to order any interim relief that he deems necessary. An order shall be made in writing with a brief statement of reasons. An order or award of an Emergency Arbitrator shall be enforceable in the manner provided in the Arbitration and Conciliation Act., The Emergency Arbitrator shall ensure that the entire process from appointment to making the order is completed within seven days. He shall become functus officio after the order is made and shall not be a part of the Arbitral Tribunal that may be formed subsequently, unless otherwise agreed by all the parties., The order for urgent interim or conservatory measures passed by the Emergency Arbitrator shall not bind the Arbitral Tribunal on the merits of any issue or dispute that the Tribunal may be required to determine., The order passed by the Emergency Arbitrator shall remain operative for a period of two months from the date of passing, unless modified, substituted or vacated by the Arbitral Tribunal. The Arbitral Tribunal also has the power to extend the order beyond the period of two months., Any order of the Emergency Arbitrator may be confirmed, varied, discharged or revoked, in whole or in part, by order or award made by the Arbitral Tribunal upon application by any party or on its own initiative., Discussion and Findings – Legal status of Emergency Arbitrator, The Emergency Arbitrator is a sole arbitrator appointed by the arbitration institution to consider the Emergency Interim Relief Application in cases where the parties have agreed to arbitrate according to the Rules of that institution which contain provisions relating to Emergency Arbitration. The status of the Emergency Arbitrator is based on party autonomy, as the law gives complete freedom to the parties to choose an arbitrator or an arbitral institution. The powers of the Emergency Arbitrator are the same as those of an Arbitral Tribunal to decide interim measures. The order/award of the Emergency Arbitrator is binding on all the parties, but it does not bind the subsequently constituted Arbitral Tribunal, which is empowered to reconsider, modify, terminate or annul the order/award., Important characteristics of an Emergency Arbitration are that the Emergency Arbitrator has power to deal only with Emergency Interim Relief Applications; must decide the application within a fixed time frame of about fifteen days; cannot continue after formation of the Arbitral Tribunal; his order/award can be reviewed or altered by the Arbitral Tribunal; the order/award can be challenged where the seat of arbitration is located; and ordinarily the Emergency Arbitrator will not be a part of the Arbitral Tribunal. Institutions such as the Singapore International Arbitration Centre appoint an Emergency Arbitrator within twenty‑four hours of the request and decide the application within fifteen days., Emergency Arbitration was first adopted by the International Centre for Dispute Resolution of the American Arbitration Association in 2006, followed by the Singapore International Arbitration Centre in 2010; the Stockholm Chambers of Commerce in 2010; the International Chamber of Commerce in 2012; and the Hong Kong International Arbitration Centre in 2013. The Swiss Chambers Arbitration Institution; the London Court of International Arbitration; the International Institute for Conflict Prevention and Resolution; the China International Economic and Trade Arbitration Commission; the Australian Centre for International Commercial Arbitration; the Kigali International Arbitration Centre; the Asian International Arbitration Centre; and the Dubai International Finance Centre have also incorporated provisions relating to Emergency Arbitration in their Rules., In India, the provisions relating to Emergency Arbitration have been incorporated by the Delhi International Arbitration Centre; the Mumbai Centre for International Arbitration; the Madras High Court Arbitration Centre; the Nani Palkhivala Arbitration Centre; the Indian Council of Arbitration; the Indian Institute of Arbitration & Mediation; and the Bangalore International Mediation, Arbitration and Conciliation Centre., Rule 2.1(c) of the Rules of the Delhi International Arbitration Centre defines Arbitral Tribunal to include an Emergency Arbitrator. Rule 14 contains similar provisions for appointment of an Emergency Arbitrator as contained in the Rules of the Singapore International Arbitration Centre. Rule 14.8 provides that an order or award of an Emergency Arbitrator shall be enforceable in the manner provided in the Arbitration and Conciliation Act. The Rules of the Mumbai Centre for International Arbitration and the Madras High Court Arbitration Centre also contain similar provisions for appointment of an Emergency Arbitrator., Emergency Arbitration is a very effective and expeditious mechanism to deal with Emergency Interim Relief Applications and adds a new dimension to the protection of the rights of the parties. The advantage of the mechanism is that a litigant can obtain justice within fifteen days, which is not possible in courts. However, if the order of the Emergency Arbitrator is not enforced, the entire mechanism would become redundant., In the present case, the arbitration agreement is contained in Clause 25.2.1 of the Shareholders' Agreement dated 22 August 2019, according to which all disputes between the parties are to be referred to and resolved by arbitration in accordance with the Rules of the Singapore International Arbitration Centre. The seat of arbitration is New Delhi and the courts at New Delhi have exclusive jurisdiction. The Rules of the Singapore International Arbitration Centre contain provisions for appointment of an Emergency Arbitrator to consider Emergency Interim Relief. Rule 1.3 defines an Emergency Arbitrator as an arbitrator appointed in accordance with Schedule I. Rule 7 of Schedule I empowers the Emergency Arbitrator to exercise all powers of an Arbitral Tribunal., Section 2(6) of the Arbitration and Conciliation Act gives complete freedom to the parties to authorise any person, including an institution, to determine the disputes between the parties. Section 2(8) provides that where the parties have authorised an institution, the agreement shall include the Arbitration Rules of that institution. Section 19(2) gives the parties complete freedom to agree on the procedure to be followed by the Arbitral Tribunal in conducting its proceedings., Section 2(1)(a) of the Arbitration and Conciliation Act defines arbitration as any arbitration whether or not administered by a permanent arbitral institution, an inclusive definition that covers both ad hoc and institutional arbitration. Section 2(1)(c) defines arbitral award to include an interim award. Section 2(1)(d) defines arbitral tribunal to mean a sole arbitrator or a panel of arbitrators., Section 17 of the Arbitration and Conciliation Act empowers the Arbitral Tribunal to pass an interim order, and Section 17(2) provides that the interim order passed by the Arbitral Tribunal shall be deemed to be an order of the Supreme Court of India and shall be enforceable as an order of the Supreme Court of India., By virtue of Section 2(8) of the Arbitration and Conciliation Act, the Rules of the Singapore International Arbitration Centre are incorporated in the arbitration agreement between the parties. By incorporating the SIAC Rules, the parties have agreed to the provisions relating to Emergency Arbitration., The Supreme Court of India is of the view that the Emergency Arbitrator is an arbitrator for all intents and purposes, which is clear from the conjoint reading of Sections 2(1)(d), 2(6), 2(8), 19(2) of the Arbitration and Conciliation Act and the Rules of the Singapore International Arbitration Centre, which are part of the arbitration agreement by virtue of Section 2(8). Section 2(1)(d) is wide enough to include an Emergency Arbitrator., Under Section 17(1) of the Arbitration and Conciliation Act, the Arbitral Tribunal has the same powers to make an interim order as the Supreme Court of India, and Section 17(2) makes such interim order enforceable in the same manner as if it were an order of the Supreme Court of India. The interim order is appealable under Section 37 of the Arbitration and Conciliation Act., The current legal framework is sufficient to recognise Emergency Arbitration and there is no necessity for an amendment in this regard. In that view, reference to the 246th Law Commission Report does not help the respondents., The respondents have referred to Rules 30, 30.1, 30.2, 30.3 and Schedule I Rules 1, 6 and 10 of the Singapore International Arbitration Centre to contend that the Emergency Arbitrator is not an arbitrator. However, in view of the clear language of Rule 1.3 of the SIAC Rules, which defines the Emergency Arbitrator as an arbitrator, there is no doubt about the legal status of an Emergency Arbitrator as an arbitrator for all intents and purposes., According to the respondents, the rules of the Delhi International Arbitration Centre, the Mumbai Centre for International Arbitration and the Madras High Court Arbitration Centre are contrary to the provisions of the Arbitration and Conciliation Act. There is no merit in this submission. All the aforesaid rules are legal, valid and enforceable., The Emergency Arbitrator considered all the objections of the respondents on the validity of his appointment and gave reasoned findings in paragraphs 97 to 109 reproduced above. This Court agrees with the findings of the Emergency Arbitrator in this regard., There is no merit in the respondents' objection that an Emergency Arbitrator is not an arbitrator within the meaning of Section 2(1)(d) and that the interim order is not enforceable under Section 17(2) of the Arbitration and Conciliation Act. All these objections are rejected., The respondents relied upon Raffles Design International India Pvt. Ltd. v. Educomp Professional Education Ltd., (2016) 234 DLT 349, which was considered and distinguished by the Division Bench of this Court in Ashwani Minda v. U‑Shin Ltd., (2020) SCC OnLine Del 721. In Ashwani Minda, a dispute arose out of a joint venture agreement between an Indian entity and a Japanese entity. The arbitration clause provided for arbitration under the Rules of the Japan Commercial Arbitration Association and the seat was Japan. The Indian entity invoked arbitration and filed an application for interim relief, which was considered and rejected by the Emergency Arbitrator. The Indian entity then filed a petition for interim relief before the Supreme Court of India under Section 9 of the Arbitration and Conciliation Act. The learned Single Judge dismissed the petition, holding that the Emergency Arbitrator had rejected the claim by a detailed and reasoned order and that the claimant could not invoke jurisdiction under Section 9. The Judge further noted that the Supreme Court of India, in a petition under Section 9, cannot sit as a Court of Appeal to examine the order of the Emergency Arbitrator and that the mandate of the Emergency Arbitrator was continuing, allowing the appellant to seek modification if advised. The Division Bench rejected the challenge, holding that a party having chosen the Emergency Arbitrator and failed to obtain interim relief could not seek the same relief in Section 9 proceedings. The Division Bench thus clearly recognised the legal status of the Emergency Arbitrator as an arbitrator under the Arbitration and Conciliation Act., Whether the Doctrine of Group of Companies applies only to proceedings under Section 8 of the Arbitration and Conciliation Act, as alleged by respondent No.2, is addressed by the Supreme Court in several decisions., The law relating to the Group of Companies doctrine is well settled by the Supreme Court in Chloro Controls India Private Limited v. Sever N. Trent Water Purification Inc., (2013) 1 SCC 641; Cheran Properties Limited v. Kasturi and Sons Limited, (2018) 16 SCC 413; and MTNL v. Canara Bank, (2020) 12 SCC 767. The doctrine binds a non‑signatory entity where multiple agreements reflect a clear intention of the parties to bind both signatory and non‑signatory entities within the same group. The Supreme Court has laid down various tests for invoking the doctrine in those judgments., In Chloro Controls India Private Limited v. Sever N. Trent Water Purification Inc., the Supreme Court examined the Group of Companies doctrine where seven agreements were signed between different parties, with arbitration clauses in only three agreements. The Court noted that not all parties had signed all agreements and that arbitration was invoked against a non‑signatory on the basis of the doctrine. The Court observed that the expanding need for international arbitration has provided new dimensions to arbitration jurisprudence, especially where multiple, multi‑party agreements have intrinsically interlinked causes of action and the performance of ancillary agreements depends on the principal agreement., The Supreme Court formulated the question: Whether, where multiple agreements are signed between different parties and some contain an arbitration clause while others do not, and the parties are not identically common in proceedings before the court and the arbitration agreement, a reference of disputes as a whole or in part can be made to the Arbitral Tribunal, particularly where the parties to an action are claiming under or through a party to the arbitration agreement?, The Supreme Court held that the Group of Companies doctrine shall bind a non‑signatory party to arbitration where there is a clear intention of the parties to bind both the signatory and the non‑signatory parties who are part of the group. The intention of the parties is a very significant feature that must be established before the scope of arbitration can be said to include the non‑signatory parties., The Supreme Court laid down the tests for invoking the Group of Companies doctrine: (i) direct relationship to the party signatory to the arbitration agreement; (ii) direct commonality of the subject‑matter; (iii) the agreement between the parties being a composite transaction; (iv) the transaction should be of a composite nature where performance of the main agreement may not be feasible without the aid, execution and performance of supplementary or ancillary agreements; and (v) the court must examine whether a composite reference of such parties would serve the ends of justice., Further, the Court explained that a non‑signatory or third party could be subjected to arbitration without prior consent only in exceptional cases, and the court will examine these exceptions based on the direct relationship, commonality of subject matter, and the composite nature of the transaction. The court must also consider whether a composite reference would serve the ends of justice., In India, the law has been construed more liberally towards accepting incorporation by reference. The Court observed that while ascertaining the intention of the parties, attempts should be made to give meaning and effect to the incorporation clause and not to invalidate it by a literal, pedantic reading., In Cheran Properties Limited v. Kasturi and Sons Limited, the arbitration clause was contained in an agreement between Kasturi Sons and a company called KCP. The successful party obtained an award and sought enforcement against Cheran Properties, which was not a signatory to the arbitration agreement. The Supreme Court examined whether the award could be enforced against a non‑signatory and recognised the Group of Companies doctrine, holding that the circumstances reflected an intention to bind both signatory and non‑signatory entities within the same group. The Court considered factors such as the relationship of the non‑signatory to a signatory, commonality of subject matter, and the composite nature of the transaction., The Supreme Court noted that modern business transactions are often effectuated through multiple layers and agreements within a group of companies. The circumstances may reflect an intention to bind both signatory and non‑signatory entities. The Court emphasized that the group of companies doctrine is intended to facilitate the fulfilment of a mutually held intent where the intent was to bind both signatories and non‑signatories., Garry B. Born, in his treatise on International Commercial Arbitration, explains that the principal legal bases for holding that a non‑signatory is bound by an arbitration agreement include both consensual theories (agency, assumption, assignment) and non‑consensual theories (estoppel, alter ego). The alter ego principle allows a non‑signatory to be bound if it is essentially the same entity that executed the agreement, while the group of companies doctrine identifies the parties' intentions without disturbing the separate legal personality of each entity., Applying the aforesaid principles, the Supreme Court rejected the appellant's defence that the award could not be enforced against the appellant, holding that to allow such a defence would cast the mutual intent of the parties to the winds and reward dishonesty., The Supreme Court further noted that an arbitral award has the character of a decree of a civil court and is capable of being enforced as if it were a decree. The award, having attained finality, can be enforced in accordance with the provisions of the Code of Civil Procedure in the same manner as a court decree., In Mahanagar Telephone Nigam Limited v. Canara Bank, (2020) 12 SCC 767, the Supreme Court invoked the Group of Companies doctrine to join CANFINA, a wholly owned subsidiary of Canara Bank, in arbitration proceedings between MTNL and Canara Bank. The Court held that the doctrine can be invoked where there is a tight group structure with strong organisational and financial links, constituting a single economic unit, and where funds of one company are used to support or restructure other members of the group, thereby binding signatories and non‑signatories together under the arbitration agreement.
id_502	6	Canara Bank raised an objection to the joinder of Respondent 2 CANFINA as a party to the arbitration proceedings. As per the principles of contract law, an agreement entered into by one of the companies in a group cannot be binding on the other members of the same group, as each company is a separate legal entity which has separate legal rights and liabilities. The parent or the subsidiary company entering into an agreement, unless acting in accord with the principles of agency or representation, will be the only entity in a group to be bound by that agreement. Similarly, an arbitration agreement is also governed by the same principles, and normally the company entering into the agreement would alone be bound by it., A non-signatory can be bound by an arbitration agreement on the basis of the group of companies doctrine, where the conduct of the parties evidences a clear intention of the parties to bind both the signatory as well as the non-signatory parties. Courts and tribunals have invoked this doctrine to join a non-signatory member of the group if they are satisfied that the non-signatory company was, by reference to the common intention of the parties, a necessary party to the contract., The doctrine of group of companies had its origins in the 1970s from French arbitration practice. The group of companies doctrine indicates the implied consent to an agreement to arbitrate in the context of modern multi‑party business transactions. It was first propounded in Dow Chemical v. Isover‑Saint‑Gobain, 1984 Review of Arbitration 137, where the Arbitral Tribunal held that the arbitration clause expressly accepted by certain companies of the group should bind the other companies which, by virtue of their role in the conclusion, performance, or termination of the contracts containing said clauses, and in accordance with the mutual intention of all parties to the proceedings, appear to have been veritable parties to these contracts or to have been principally concerned by them and the disputes to which they may give rise., The group of companies doctrine has been invoked by courts and tribunals in arbitrations where an arbitration agreement is entered into by one of the companies in the group and the non‑signatory affiliate, sister, or parent concern is held to be bound by the arbitration agreement if the facts and circumstances demonstrate that it was the mutual intention of all parties to bind both the signatories and the non‑signatory affiliates in the group. The doctrine provides that a non‑signatory may be bound by an arbitration agreement where the parent or holding company, or a member of the group of companies, is a signatory to the arbitration agreement and the non‑signatory entity in the group has been engaged in the negotiation or performance of the commercial contract, or has made statements indicating its intention to be bound by the contract; the non‑signatory will also be bound and benefited by the relevant contracts., The circumstances in which the group of companies doctrine could be invoked to bind the non‑signatory affiliate of a parent company, or inclusion of a third party to an arbitration, include a direct relationship between the party which is a signatory to the arbitration agreement; direct commonality of the subject‑matter; and the composite nature of the transaction between the parties. A composite transaction refers to a transaction which is interlinked in nature, or where the performance of the agreement may not be feasible without the aid, execution, and performance of the supplementary or ancillary agreement for achieving the common object and collectively having a bearing on the dispute., The group of companies doctrine has also been invoked in cases where there is a tight group structure with strong organisational and financial links, so as to constitute a single economic unit or a single economic reality. In such a situation, signatory and non‑signatories have been bound together under the arbitration agreement, particularly when the funds of one company are used to financially support or restructure other members of the group., The group of companies doctrine has been invoked and applied by the Supreme Court of India in Chloro Controls (India) (P) Ltd. v. Severn Trent Water Purification Inc. with respect to an international commercial agreement. Recently, the Supreme Court of India in Ameet Lalchand Shah v. Rishabh Enterprises, (2018) 15 Supreme Court of India 678, invoked the group of companies doctrine in a domestic arbitration under Part I of the Arbitration and Conciliation Act, 1996., It will be a futile effort to decide the disputes only between MTNL and Canara Bank in the absence of CANFINA, since undisputedly the original transaction emanated from a transaction between MTNL and CANFINA, the original purchaser of the bonds. The disputes arose on the cancellation of the bonds by MTNL on the ground that the entire consideration was not paid. There is a clear and direct nexus between the issuance of the bonds, its subsequent transfer by CANFINA to Canara Bank, and the cancellation by MTNL, which has led to disputes between the three parties. Therefore, CANFINA is undoubtedly a necessary and proper party to the arbitration proceedings., Given the tripartite nature of the transaction, there can be a final resolution of the disputes only if all three parties are joined in the arbitration proceedings to finally resolve the disputes which have been pending for over 26 years., In view of the aforesaid discussion, the present appeals are partly allowed. We invoke the group of companies doctrine to join Respondent 2 CANFINA, i.e., the wholly owned subsidiary of Respondent 1 Canara Bank, in the arbitration proceedings pending before the sole arbitrator. The Group of Companies doctrine has been very succinctly explained in the fourth edition of Justice Indu Malhotra’s Commentary on the Law of Arbitration (pages 154 to 158)., The group of companies doctrine has been developed to extend an arbitration clause to non‑signatory parties. Multinational groups operate through several subsidiaries, affiliates, or holding companies, which may constitute a collective economic unit rather than independent legal entities. This also applies when funds of one company are used to financially support or restructure other members of the group. The doctrine originally developed in taxation and company law, wherein groups of companies are treated as a unit for taxation and accountancy purposes. The Supreme Court of India followed the doctrine in Chloro Controls India Ltd. v. Severn Trent Water Purification Inc. & Ors., (2013) 1 Supreme Court of India 641, holding that an arbitration agreement entered into by a company within a group can bind its non‑signatory affiliates if the circumstances demonstrate that the mutual intention of the parties was to bind both the signatory and the non‑signatory parties., The decision in Chloro Controls was followed in GMR Energy Limited v. Doosan Power Systems India Private Limited & Ors., 2017 (6) Arbitration Law Reports 447 (Delhi), wherein GMR Energy Limited, a guarantor to GMR Chhattisgarh Energy Limited (GCEL), was sought to be made a party to the arbitration proceedings between Doosan Power Systems India Private Limited, GMR Infrastructure Limited and GCEL. Relying on Chloro Controls, it was held that GMR Energy Limited was the alter ego of GCEL because (a) GCEL was a joint venture of the GMR Group with GMR Energy as the parent company; (b) GMR Energy and GCEL did not maintain separate legal personalities and commingled corporate funds; (c) GMR Energy guaranteed certain payments on behalf of GCEL and discharged its liability by making part payment; and (d) at the time of entering into two memoranda of understanding with Doosan India, GMR Energy had acquired a 100 % stake in GCEL., The Madras High Court in SEI Adhavan Power Private Limited and Ors. v. Jinneng Clean Energy Technology Limited and Ors., 2018 (4) Commercial Taxation Cases 464, also followed Chloro Controls to join a non‑signatory as a party to arbitration, relying on factors such as shared office, e‑mails, and agent relationship to conclude that the signatory and non‑signatory were alter egos., The doctrine has acquired particular relevance in international arbitration to extend arbitration agreements signed by one or more companies in a group to non‑signatory members of the same group. It was introduced into arbitration in the early 1980s in Dow Chemical v. Isover‑Saint‑Gobain, ICC Award No. 4131 of 1982. In that case, two subsidiaries of the Dow Chemical group entered into separate distribution agreements with Boussois‑Isolation, whose rights and obligations were subsequently assigned to Isover‑Saint‑Gobain. A dispute arose, and the tribunal rejected objections and assumed jurisdiction over the non‑signatory companies of the Dow Chemical group, invoking the group of companies concept. The tribunal held that the arbitration clause extended to the non‑signatory parties because (i) the signatories and non‑signatories were companies belonging to the same group; (ii) the factual context revealed the active role of the non‑signatories in the conclusion and performance of the distribution agreements; and (iii) there was a common intention of all parties, both signatories and non‑signatories, to arbitrate. The award was upheld by the Court of Appeal of Paris., For the doctrine to be invoked, tribunals will examine the corporate structure of the group. It is not enough for the signatory and non‑signatory members to belong to the same group; the doctrine can be invoked only if it is established that the signatory and non‑signatory have a tight group structure, where the parent company holds the commanding role in the business strategy and several subsidiaries execute its business project, constituting executive branches of the parent. A tight group structure is also evidenced when several companies share intellectual property rights, assets, financial or human resources, including corporate name, offices, bank accounts and trademarks. In the Dow Chemical case, the tribunal found that the signatory and non‑signatory companies shared the use of the same trademarks., It is required that the non‑signatory company has had an active role in the negotiations, performance, or termination of the contract containing the arbitration agreement. In Contractor v. Yugoslavian Enterprise, ICC Award No. 6000 of 1988, the tribunal assumed jurisdiction over the non‑signatory affiliate of the signatory company, being satisfied that the two affiliates had close business and corporate links, were substantially identical entities, owned by the same shareholders in equal proportion, and had the same subject‑matter and place of business, acting as representatives for both., Group of Companies Doctrine in Domestic Arbitrations: The Supreme Court decision in Chloro Controls related to an international commercial arbitration. In Ameet Lalchand Shah & Ors. v. Rishabh Enterprises and Anr., AIR 2018 Supreme Court of India 3041, the Supreme Court answered whether the principle would extend to domestic arbitrations. Rishabh Enterprises had entered into four separate related agreements for the commissioning of a solar power plant in Uttar Pradesh; three contained arbitration agreements and one did not. In a civil suit filed by Rishabh Enterprises, the respondent filed an application under Section 8 of the Arbitration and Conciliation Act, 1996 for reference to arbitration. The Supreme Court observed that the 2015 amendment to the Act had brought Section 8 in line with Section 45 of the Act. The Court held that all four agreements are interconnected and that all parties can be covered by the arbitration clause in the main agreement., Ordinarily, an arbitration takes place between the persons who are signatory parties to the arbitration agreement and the underlying substantive commercial contract. The general principle is that if one or more parties are not signatories to the arbitration agreement, the dispute cannot be referred to arbitration. Each company is a separate and distinct legal entity, and the mere fact that companies may have common shareholders or directors would not make the two companies a single entity. For a company to be bound by an arbitration agreement, it should be a signatory and party to the agreement. A non‑signatory has, however, been held to be bound by an arbitration agreement by invoking various doctrines such as the principal‑agent relationship, piercing the corporate veil, joint venture agreements, succession, implied consent, third‑party beneficiaries, guarantors, assignment (Kotak Mahindra Bank v. S. Nagabhushan and Ors., 2018 (2) Arbitration Law Reports 488 (Delhi)), and other concepts of contractual rights. The group of companies doctrine has been applied where an arbitration agreement is entered into by a company being a constituent of a group of corporate entities to bind a non‑signatory affiliate (Chloro Controls India (P) Ltd. v. Severn Trent Water Purification Inc., (2013) 1 Supreme Court of India 641) in certain circumstances, such as a composite transaction and a clear intention of the parties to bind both signatory and non‑signatory parties., The doctrine implies that a non‑signatory party could be subjected to arbitration provided the transactions were with a group of companies and there was a clear intention of the parties to bind both the signatory as well as the non‑signatory parties. Intention of the parties is a very significant feature which must be established before the scope of arbitration can be said to include the signatory as well as the non‑signatory parties., In cases of composite transactions and multiple agreements, the intention of the parties to refer non‑signatories to arbitration can be discerned if the agreements are so interlinked that only their composite performance can discharge the mutual obligations of the parties., The doctrine was essentially intended to facilitate the fulfilment of a mutually held intent between the parties, where the circumstances indicated that the intent was to bind both signatories and non‑signatories. The effort must be to find the true essence of the business arrangement and unravel from a layered structure of commercial arrangements the intent to bind a party who is not formally a signatory but has assumed the obligations of the signatory., In Chatterjee Petrochem Co. v. Haldia Petrochemicals Ltd., (2011) 10 Supreme Court of India 466, the parties entered into the principal agreement dated 12 January 2002 which provided for arbitration before the International Chamber of Commerce. Subsequent agreements dated 8 March 2002 and 30 July 2004 were entered into between the parties and an affiliate of the appellant company. It was held that the principal agreement continued to remain valid as it was not novated by the subsequent agreements, which did not contain any arbitration clause. The court relied on the group of companies doctrine and held that a non‑signatory affiliate of the appellant could invoke the arbitration clause as it was a party to the subsidiary agreements and was directly affected by the disputes., Another illustration where the court invoked the group of companies doctrine was in Ameet Lalchand Shah & Ors. v. Rishabh Enterprises & Anr., (2018) 15 Supreme Court of India 678, where the parties had entered into four inter‑connected agreements and several parties were involved for setting up a solar plant, a single commercial project. The clauses in the four agreements made them an integral part of the principal agreement. The principal agreement and the agreements for purchase of power‑generating equipment, and for engineering, installation and commissioning of the plant contained arbitration clauses. The fourth agreement for purchase of photovoltaic products did not contain an arbitration clause. The court held that even though there are different agreements involving several parties, these agreements are inter‑related and are in pursuance of a single commercial project, and the disputes between all the parties under the four agreements were referred to a common arbitration., The courts have held that where there is a tight group structure with strong organisational and financial links, so as to constitute the corporate entities into a single economic unit or a single economic reality, the group of companies doctrine could be invoked. In MTNL v. Canara Bank, AIR 2019 Supreme Court of India 4449, the court invoked the doctrine to join a wholly owned subsidiary to the arbitration proceedings. This doctrine would apply in particular when the funds of one company are used to financially support or restructure the other members of the group., Non‑Signatories/Third Parties to an Arbitration: The amendments to Section 17 of the Arbitration and Conciliation Act, 1996 have conferred the power upon arbitral tribunals to grant interim reliefs such as preservation, interim custody or sale of goods which are the subject‑matter of the arbitration agreement. The amended Section 17(1) provides that the arbitral tribunal shall have the same power to make orders as the Supreme Court of India has, for the purpose of and in relation to any proceedings before it. Section 17(2), as amended by the 2015 amendment, makes such interim orders passed by arbitral tribunals enforceable in the same manner as if they were orders passed by a court, for instance, an injunction restraining a bank from encashment of a bank guarantee., In recent arbitration jurisprudence, third parties in certain situations have been held to be beneficiaries of an arbitration clause or bound by an arbitration agreement: (i) invoking the group of companies doctrine, whereby rights and obligations arising from an arbitration agreement may be extended to other members of the same group; (ii) by operation of general rules of private law, principally those governing assignment, agency and succession. For example, the affiliate of a signatory to an arbitration clause may be joined as a co‑respondent; an assignee of a contract may commence arbitration against the insurer of the original insured party; a principal may be bound by an arbitration agreement signed by its agent or affiliate; or a merged entity may continue arbitral proceedings commenced by one of its original constituent entities. In most jurisdictions, the necessary threshold for a third‑party beneficiary to be impleaded in an arbitration is to establish that the parties sought to confer a substantive benefit on the third party under the contract containing the arbitration agreement. Once established, the third‑party beneficiary will automatically be entitled to enforce the arbitration clause contained in the contract., The group of companies doctrine may extend arbitration agreements to the parent or an affiliate company of a contractual party, provided that such non‑signatory was involved in the discussions, execution, performance or termination of the contract in dispute. The doctrine originated in French arbitration practice of the 1970s and was first formulated by an ICC Tribunal in Dow Chemical v. Isover‑Saint‑Gobain, wherein the tribunal decided that non‑signatory companies in a group could rely on an arbitration clause in contracts between Isover‑Saint‑Gobain and two Dow Chemical group companies. The tribunal held that a group of companies constituted one and the same economic reality which the tribunal should take into account when ruling on its jurisdiction. Courts have relied on the doctrine to hold that an arbitration agreement is enforceable against third parties who are involved in the execution or performance of the contract, or when the contract and conduct of these parties make it possible to presume that they were aware of the existence and scope of the arbitration clause. The application of this doctrine is fact‑dependent, and the conduct and involvement of the non‑signatory parties is of crucial significance., Summary of Principles laid down by the Supreme Court on the Group of Companies doctrine: As the law has evolved, it has recognised that modern business transactions are often effectuated through multiple layers and agreements. There may be transactions within a Group of Companies. The circumstances in which they have entered into them may reflect an intention to bind both signatory and non‑signatory entities within the same group., The Group of Companies doctrine is essentially intended to facilitate the fulfilment of a mutually held intent between the parties, where the circumstances indicate that the intent was to bind both signatories and non‑signatories. The effort is to find the true essence of the business arrangement and to unravel from a layered structure of commercial arrangements an intent to bind someone who is not formally a signatory but has assumed the obligation to be bound by the actions of a signatory., The Group of Companies doctrine can be invoked to bind a non‑signatory entity where a Group of Companies exists and the parties have engaged in conduct such as negotiation or performance of the relevant contract or have made statements indicating the intention, assessed objectively and in good faith, that the non‑signatory be bound and benefited by the relevant contracts., The Group of Companies doctrine will bind a non‑signatory entity where an arbitration agreement is entered into by a company within a group of companies if the circumstances demonstrate that the mutual intention of all the parties was to bind both the signatories and the non‑signatory affiliates., A non‑signatory party can be subjected to arbitration where there was a clear intention of the parties to bind both the signatory as well as the non‑signatory parties who are part of a Group of Companies. In other words, intention of the parties is a very significant feature which must be established before the scope of arbitration can be said to include the signatory as well as the non‑signatory parties., Direct relationship to the party signatory to the arbitration agreement, direct commonality of the subject‑matter and the agreement between the parties being a composite transaction. The transaction should be of a composite nature where performance of the mother agreement may not be feasible without aid, execution and performance of the supplementary or ancillary agreements for achieving the common object and collectively having bearing on the dispute. Besides all this, the Court has to examine whether a composite reference of such parties would serve the ends of justice., Where the agreements are consequential and in the nature of a follow‑up to the principal or mother agreement, the latter containing the arbitration agreement and such agreements being so intrinsically intermingled or interdependent that their composite performance shall discharge the parties of their respective mutual obligations and performances, this would be a sufficient indicator of intent of the parties to refer signatory as well as non‑signatory parties to arbitration. The principle of composite performance would have to be gathered from the conjoint reading of the principal and supplementary agreements on the one hand and the explicit intention of the parties and the attendant circumstances on the other., While ascertaining the intention of the parties, attempt should be made to give meaning and effect to the incorporation clause and not to invalidate or frustrate it by giving it a literal, pedantic and technical reading., Tests laid down by the Supreme Court to bind a non‑signatory of an arbitration agreement on the basis of the Group of Companies doctrine: (1) The conduct of the parties reflects a clear intention to bind both the signatory and the non‑signatory parties. (2) The non‑signatory company is a necessary party with reference to the common intention of the parties. (3) The non‑signatory entity of the group has been engaged in the negotiation or performance of the contract. (4) The non‑signatory entity of the group has made statements indicating its intention to be bound by the contract. (5) A direct relationship between the signatory to the arbitration agreement and the non‑signatory entity of the group; direct commonality of the subject‑matter and composite nature of transaction between the parties. (6) The performance of the agreement may not be feasible without the aid, execution and performance of the supplementary or ancillary agreement for achieving the common object. (7) There is a tight group structure with strong organisational and financial links so as to constitute a single economic unit or a single economic reality. (8) The funds of one company are used to financially support or restructure other members of the group. (9) The composite reference of disputes of fresh parties would serve the ends of justice., Findings of the Emergency Arbitrator on the Group of Companies doctrine: The Emergency Arbitrator considered the objections of Respondent No. 2 in paragraphs 110 to 146 of the interim order. The Emergency Arbitrator noted in paragraph 118 of the interim order that a party to an arbitration agreement defined in Section 2(1)(h) of the Arbitration and Conciliation Act need not be a signatory to the arbitration agreement. The Emergency Arbitrator referred to and relied upon the three Supreme Court judgments, namely, Chloro Controls (supra), Cheran Properties Ltd. (supra) and MTNL v. Canara Bank (supra)., In paragraph 136, the Emergency Arbitrator recorded the prima facie satisfaction that FRL is a proper party as the facts on record establish a cogent commonality, intimate interconnectivity and undeniable indivisibility. The paragraph reads: “The Claimant has prima facie satisfied the established legal criteria that makes FRL a proper party to these proceedings. The facts on record clearly establish the cogent commonality, intimate interconnectivity, and undeniable indivisibility of the contractual arrangements in the Agreements. It is apparent that none of these Agreements would have been entered into without the others. This indeed appears to be an intimate composite transaction between the Claimant and all the Respondents.”
id_502	7	Future Retail Ltd (FRL) was actively involved in its negotiation, performance and was its ultimate beneficiary. In paragraph 139 of the interim order, the Emergency Arbitrator recorded nine factors which prima facie make out a strong case for including FRL in these proceedings. The factors submitted by the Claimant prima facie make out a strong case for including FRL in these proceedings, by viewing it as being within the scope of the arbitration clause: (a) the intertwined content of the Agreements with several cross references and similar clauses in each of them; (b) simultaneous discussions and negotiations in relation to the Agreements. The FRL Shareholders' Agreement only came into existence because of the framework arrangement that the Agreements be entered into; (c) single common negotiating and legal team representing all Respondents including FRL vis‑vis the Claimant in those discussions and negotiations including the FRL Shareholders' Agreement; (d) full awareness and knowledge of all the Respondents (including FRL) that protective, special and material rights are being created in favour of FCPL for the Claimant's benefit; (e) the purpose of the Claimant's financial collaboration was to strengthen and augment the business of FRL. It was the direct beneficiary of the investment by the Claimant. Section 6.4 of the Share Sale Agreement required FCPL to pay INR 14,990,000,000 to FRL in relation to the FRL Warrants within three business days of the Share Sale Agreement Closing Date; (f) statutory disclosures made by FRL to the public and statutory regulators of material terms of the Parties' Agreements vide the disclosures of 12 August 2019 and 22 August 2019; (g) the coordinated conduct and efforts of the Respondents before as well as after the Agreements were entered into and the control asserted and exerted by Respondent No 3 over all aspects of the entire transaction. He was, in fact, acknowledged to be the Ultimate Controlling Person as regards the Future Group; (h) the objectives of the Agreements, i.e., for the Claimant (at some time when permissible) to become the single largest shareholder of FRL, implemented through the preservation of (i) the Retail Assets of FRL and (ii) the Promoters' shareholding in FRL, free from any encumbrance. Notably, from April to July 2020, representatives from the Future Group sought additional investments from the Claimant into FRL, prepared and discussed various structure options for the Claimant's investment to benefit FRL, increase the Claimant's stake in FRL, and also proposed that the Claimant's nominee would be on the board of directors of FRL. It is clear that rights were created in favour of FCPL (through the FRL Shareholders' Agreement), for the benefit of the Claimant (under the FCPL Shareholders' Agreement), and all the Respondents were fully aware and actively participated in those negotiations; and (i) similar dispute resolution clauses prevail in all the Agreements. Even the FRL Shareholders' Agreement (which is essentially a domestic agreement) has a Singapore International Arbitration Centre dispute resolution clause., Applying the well‑settled law relating to the Group of Companies doctrine laid down by the Supreme Court to the present case, this Supreme Court is satisfied that the Group of Companies doctrine is applicable and Respondent No. 2 is a proper party to the arbitration proceedings for the reasons given by the learned Emergency Arbitrator, in particular: the signatory and non‑signatory company (FRL) belong to the same Biyanis Group; the conduct of the parties reflects a clear intention to bind both the signatory and non‑signatory company of the Biyanis Group; simultaneous discussions and negotiations of the agreements, and a common negotiating and legal team represented both the signatory and non‑signatory company; statutory disclosures made by the non‑signatory company (FRL) on 12 August 2019 and 22 August 2019 to the public and statutory regulators of the material terms of the agreements; a direct relationship of the non‑signatory company to the signatory company of the Group, commonality of the subject matter and composite nature of the transaction; the funds of the signatory company have been used to financially support the non‑signatory company of the Group; the agreements are so intrinsically intermingled that their composite performance only shall discharge the parties of their respective mutual obligations; similar dispute resolution clauses in all the agreements reflect a common intention of all the parties, both signatory and non‑signatory, to arbitrate; the composite reference of disputes of all the parties including non‑signatory would serve the ends of justice; and the observations made by the Supreme Court in paragraph 35 of Cheran Properties that allowing such a defence would cast the mutual intent of the parties to the winds and put a premium on dishonesty squarely apply to the facts of the present case., The Emergency Arbitrator has applied the well‑settled law laid down by the Supreme Court on the Group of Companies doctrine in Chloro Controls, Cheran Properties and MTNL to the present case. All the tests laid down by the Supreme Court are satisfied, and the Emergency Arbitrator has given nine reasons for applying the Group of Companies doctrine, detailed in paragraph 139 of the interim order. This Supreme Court is in complete agreement with the findings of the Emergency Arbitrator based on the well‑settled law of the Supreme Court., The respondents did not dispute the law laid down by the Supreme Court on the Group of Companies doctrine in Chloro Controls, Cheran Properties and MTNL before the Emergency Arbitrator. Reference is made to paragraph 119 of the interim order in which the Emergency Arbitrator recorded that, in the course of oral submissions, FRL's counsel, Mr. Salve, did not dispute the correctness of these legal propositions. However, Respondent No. 2 has raised a new plea before this Supreme Court that the Group of Companies doctrine applies only to proceedings under Section 8 of the Arbitration and Conciliation Act, which is contrary to the law declared by the Supreme Court. This Supreme Court is of the view that the law declared by the Supreme Court is binding on all parties, and raising a plea contrary to that well‑settled law is a very serious matter., The respondents contend that the interim order is a nullity, yet they do not dispute that the three agreements in question are legal and valid. The basic feature of a valid agreement is that it is enforceable by law. A valid contract is an agreement enforceable by law, whereas an agreement not enforceable by law is void (Section 2(g) and (h) of the Indian Contract Act). The respondents have not disputed the validity of the agreements. All three agreements are enforceable, and the Emergency Arbitrator has merely enforced the valid agreements as per law., The respondents have pleaded the interim order to be a nullity without pleading the law on nullity; they have not identified the essential ingredients of the law on nullity nor explained how those ingredients are satisfied in the present case. At the outset, this Supreme Court finds the submission vague and unsubstantiated. It is akin to a litigant pleading that the interim order is illegal without reliance on the applicable substantive law. The respondents' approach does not appear innocent; it seems a deliberate attempt to mislead this Supreme Court. If the respondents had pleaded the agreements to be null and void, they would be liable to return the advantage or benefit received under Section 65 of the Indian Contract Act. Accordingly, the respondents have deliberately set up a vague plea of nullity to mislead this Court., According to Respondent No. 2, treating all the agreements as a single integrated transaction would result in the petitioner acquiring control over Respondent No. 2, thereby violating the Foreign Exchange Management Act, 1999 and the Foreign Exchange Management (Non‑Debt Instruments) Rules, 2019 (FEMA FDI Rules). The Emergency Arbitrator considered and rejected this contention in paragraphs 137 and 138 of the interim order, which are reproduced below: Paragraph 137: Mr. Darius Khambata argues that if the Claimant's single integrated contract approach were adopted, the arrangement might be illegal since the Claimant's rights as a foreign investor were limited. He further suggests that the Claimant misled the Competition Commission of India on the structure of the relationships among the parties. The Court finds little substance in these arguments. First, the stake was not a direct investment made by the Claimant but one through an Indian‑owned controlled entity, a permissible arrangement under Indian law that has received regulatory scrutiny. Second, the agreements do not confer, and the Claimant has not attempted to assert, control of or over FRL. Paragraph 138: The documents filed with the Competition Commission of India must be read in their entirety rather than cherry‑picked. A close reading does not suggest misstatements by the Claimant. It did not conceal its protective rights. Such protective rights do not amount to control of FRL; rather, they oblige FRL not to act in a manner inimical to the Claimant's interests as its long‑term stakeholder., The Emergency Arbitrator held that the investment was in accordance with law as control remains with FRL despite the protective rights. This Supreme Court agrees that the protective rights do not amount to control of the petitioner over FRL and do not violate any law. The respondents have strongly relied upon observations made in the order dated 21 December 2020 in Future Retail Ltd. v. Amazon.com Investment Holdings LLC, 2020 SCC Online Del 1636. This Supreme Court notes that the Court made certain prima facie observations while rejecting I.A. 10376/2020, although the interim order of the Emergency Arbitrator was not under challenge in CS(COMM) 493/2020. Since the interim order was not under challenge, the observations made by the Court while rejecting the stay application are prima facie. The law is well settled that findings of a court on an issue are binding on the parties in subsequent proceedings in which the same issue arises, provided that issue was directly and substantially in issue in the previous suit and was finally decided by the Court. Findings on an issue not directly and substantially in issue in the previous case do not have a binding effect., The interim order dated 25 October 2020 is legal, valid and enforceable as an order of the Supreme Court. Section 51 of the Code of Civil Procedure provides various modes by which the Court may execute a decree or order. Order XXI Rule 32(5) empowers the Court to enforce a decree or order for an injunction. Order XXXIX Rule 2A of the Code of Civil Procedure empowers the Court to attach the property of a person guilty of disobedience or breach and to detain him in civil prison for a term not exceeding three months. In M/s Bhandari Engineers & Builders Pvt. Ltd. v. M/s Maharia Raj Joint Venture, 2020 (270) DLT 582, this Supreme Court laid down guidelines relating to the execution of decrees and enforcement of awards, including the formulation of an affidavit of assets and income to be filed by the judgment debtor or award debtor in execution/enforcement cases., The hearing of this case commenced on 28 January 2021 when this Supreme Court heard both parties at length, directed them to file written submissions, and listed the case for hearing on 29 January 2021. Both parties filed their brief notes of submissions by email on 28 January 2021. On 29 January 2021, the Court continued the hearing and considered the written submissions. The Court directed Respondent No. 2 to file an additional note of submissions on the factual aspect and response to the petitioner's factual submissions. Respondent No. 2 filed additional legal submissions on 1 February 2021 but neither filed submissions relating to the facts nor responded to the petitioner's factual submissions. The hearing continued on 1 February and 2 February 2021. On 2 February 2021, both parties concluded their oral submissions, after which the Court reserved the order. During the hearing, the respondents were asked whether they were willing to withhold further action until the pronouncement of the order; they declined, and the Court granted interim protection to the petitioner until the detailed order was pronounced. On 29 January 2021, this Court had directed the respondents to place on record their case on facts and to respond to the plaintiff's submissions on facts. The respondents neither disclosed their case on facts nor responded to the petitioner's statement of facts despite the Court's direction. No justification was provided for this failure. The purpose of calling for the statement of facts was to satisfy whether the interim order is contrary to the most basic notions of morality or justice. In Associate Builders v. Delhi Development Authority, (2015) 3 SCC 49, the Supreme Court defined the terms morality and justice. In Ganesh Banzoplast v. Morgan Securities and Credits Pvt. Ltd., OMP (COMM) 307/2016, this Court examined the scope of the doctrine of the most basic notions of morality and justice, stating that justice is truth in action. In Ved Prakash Kharbanda v. Vimal Bindal, 198 (2013) DLT 555, this Court considered a series of judgments in which the Supreme Court held that truth is the foundation of justice and should be the guiding star in the judicial process., Reverting to the facts of the present case, the petitioner invested Rs 1,431 crore solely on the basis of the protective rights of FCPL in FRL, namely that the retail assets of FRL would not be alienated without the petitioner's written consent and never to a restricted person. According to the petitioner, the investment of Rs 1,431 crore was induced by the respondents' undertaking to protect, implement and enforce the special and material rights provided by FRL to FCPL; without that inducement, the petitioner would not have part‑ed with such a substantial amount. The respondents have violated those conditions, prompting the petitioner to invoke arbitration and file an Emergency Relief Application before the Singapore International Arbitration Centre (SIAC). The Emergency Arbitrator appointed by SIAC restrained the respondents from violating the agreements, but the respondents continue to violate them, leading the petitioner to approach this Supreme Court for enforcement of the Emergency Arbitrator's interim order., The respondents have not disputed the breach of the agreements either before the Emergency Arbitrator or before this Supreme Court. Reference is made to paragraph 235 of the interim order, reproduced below: Paragraph 235: Mr. Singh properly did not attempt to argue that no contractual breaches had been committed by the majority respondents. Instead, he premised his submissions on the basis that the cause of action had been framed by the claimant. Mr. Salve also adopted a similar stance, making submissions on a demurrer basis without accepting the correctness of the claimant's factual assertions and the jurisdiction of this Tribunal with respect to FRL. He nevertheless candidly acknowledged: “And we know today that the promoters have a serious case to answer on breach, and they are saying there was a term where they would have had to help, they have not helped us, we are not in breach. I am arguing this on the footing that the promoters have breached some arrangement with Amazon.”, The respondents have taken Rs 1,431 crore from the petitioner solely on the basis of the rights provided by FRL to FCPL that they would not transfer their retail assets without the petitioner's prior consent and never to a restricted person. Admittedly, the respondents have breached the agreements and show no remorse. Their intention does not appear honest. The respondents' argument before this Supreme Court is that the petitioner is a trillion‑dollar company and the Rs 1,430 crore invested in the present case is peanuts, suggesting it should be written off as worthless. As counsel for Respondent No. 2 remarked, “What happens to his 1,430 crore that is worth zero today? FRL is zero. FCPL coupon business is gone. For this American behemoth, 1,400 crore would be rounded off …”, With respect to the Group of Companies doctrine applied by the Emergency Arbitrator, the respondents have urged that the doctrine applies only to Section 8 of the Arbitration and Conciliation Act, when the Court has to transfer proceedings to an arbitrator. This submission is contrary to the well‑settled law laid down by the Supreme Court. In Cheran Properties, the Supreme Court invoked the Group of Companies doctrine to enforce an award against an entity that was neither a signatory to the arbitration agreement nor a party to the arbitration proceedings, meaning that even if the Emergency Arbitrator had not impleaded Respondent No. 2, the interim order would be enforceable against Respondent No. 2 before this Supreme Court. The law relating to the Group of Companies doctrine is well settled by the Supreme Court and binding on all parties. Raising a plea contrary to that law creates confusion in the administration of justice and undermines the Supreme Court's jurisprudence. In Nidhi Kaushik v. Union of India, (2013) 203 DLT 722, BHEL raised pleas contrary to the Supreme Court's settled law; similarly, in NDMC v. Prominent Hotels Limited, 222 (2015) DLT 706, the petitioner raised contrary pleas. In both cases, this Supreme Court held the conduct of the litigants to be contemptuous and initiated action against them (see paragraphs 13, 24 and 26.2 of the Division Bench judgment in Nidhi Kaushik)., Before closing, this Supreme Court records that the Emergency Arbitrator gave both parties a fair opportunity to submit written pleadings and oral arguments, recorded the respective contentions, and provided very detailed reasoned findings. The Emergency Arbitrator, Shri V. K. Raja, is a well‑known jurist. In H.S. Bedi v. National Highway Authority of India, 2016 (227) DLT 129, this Supreme Court examined the scope of Section 209 of the Indian Penal Code, which makes dishonestly making a false claim in a court an offence punishable by imprisonment up to two years and a fine. Section 209 is an important provision to curb false claims but has been rarely invoked in India. The leading case on Section 209 IPC is Bacho Mohan Singh v. Public Prosecutor, (2010) SGCA 25 by the Singapore Supreme Court, where a three‑judge bench interpreted Section 209 IPC. The majority judgment authored by Justice V. K. Rajah is reproduced in paragraph 9 of H.S. Bedi (supra). This Supreme Court accepted the principles laid down by the Singapore Supreme Court and has laid down guidelines relating to Section 209 IPC., The Emergency Arbitrator is an arbitrator for all intents and purposes; the order of the Emergency Arbitrator is an order under Section 17(1) of the Arbitration and Conciliation Act and is enforceable as an order of this Supreme Court under Section 17(2) of the same Act., Respondent No. 2 is a proper party to the arbitration proceedings and the Emergency Arbitrator rightly invoked the Group of Companies doctrine by applying the well‑settled principles laid down by the Supreme Court in Chloro Controls, Cheran Properties and MTNL. The respondents have raised a plea contrary to the well‑settled law relating to the Group of Companies doctrine declared by the Supreme Court. The respondents have also raised a vague plea of nullity without substantiating it. The interim order of the Emergency Arbitrator is not a nullity as alleged by Respondent No. 2., Treating all the agreements as a single integrated transaction does not amount to control of the petitioner over FRL; consequently, the petitioner's investment does not violate any law., All the objections raised by the respondents are hereby rejected, with a cost of Rs 20,00,000 to be deposited by the respondents with the Prime Minister Relief Fund for use in providing COVID‑19 vaccination to the Below Poverty Line (BPL) senior citizens of Delhi. The amount must be deposited within two weeks, and the receipt placed on record within one week of the deposit., The respondents have deliberately and willfully violated the interim order dated 25 October 2020 and are liable for the consequences enumerated in Order XXXIX Rule 2A of the Code of Civil Procedure. In exercise of power under Order XXXIX Rule 2A(1), the assets of respondents No. 1 to 13 are hereby attached. Respondents No. 1 to 13 are directed to file an affidavit of their assets as on today in Form 16A, Appendix E under Order XXI Rule 41(2) within 30 days. Respondent No. 1, 2, 12 and 13 are directed to file an additional affidavit in the format of Annexure B‑1, and respondents No. 3 to 11 are directed to file an additional affidavit in the format of Annexure A‑1 to the judgment of M/s Bhandari Engineers & Builders Pvt. Ltd. v. M/s Maharia Raj Joint Venture, along with the documents mentioned therein, within 30 days. A show‑cause notice is hereby issued to respondents No. 3 to 13 to show cause why they should not be detained in civil prison for a term not exceeding three months under Order XXXIX Rule 2A(1) for violation of the order dated 25 October 2020. Replies to the show‑cause notice must be filed within two weeks, with a rejoinder within two weeks thereafter., The respondents are directed not to take any further action in violation of the interim order dated 25 October 2020. They are further directed to approach all competent authorities for recall of the orders passed on their applications in violation of the interim order within two weeks. The respondents must file an affidavit placing on record the actions taken by them after 25 October 2020 and the present status of all those actions at least three days before the next date of hearing. Respondents No. 3 to 11 shall remain present before this Supreme Court on the next date of hearing. The matter is listed for reporting compliance as a part‑heard matter on 28 April.
id_503	0	Date: 13-05-2021. This matter was called on for hearing today. For Petitioner(s) by Court's Motion: Mr. Prashant Bhushan, Advocate on Record. Ms. Cheryl Dsouza, Advocate. For Respondent(s): Mr. Tushar Mehta, Solicitor General of India; Ms. Ashwariya Bhati, Additional Solicitor General; Mr. Rajat Nair, Advocate; Mr. Kanu Agrawal, Advocate; Mr. Rajat Nair, Advocate; Mr. Saurab Mishra, Advocate; Mr. Raj Bahadur Yadav, Advocate; State of Arunachal Pradesh: Mr. Abhimanyu Tiwari, Advocate; Ms. Eliza Bar, Advocate; AP: Mr. Anil Shrivastav, Advocate; Assam: Mr. Shuvodeep Roy, Advocate on Record; Bihar: Mr. Ranjit Kumar, Senior Advocate; Mr. Manish Kumar, Advocate; Chhattisgarh: Mr. S. C. Verma, Advocate; General: Mr. Sumeer Sodhi, Advocate; Mr. Manoj Kumar Singh, Advocate; NCT of Delhi: Ms. Simran Agarwal, Advocate; Goa: Mr. Chirag M. Shroff, Advocate on Record; Mr. Arun R. Pedneker, Advocate; Gujarat: Mr. Sachin Patil, Advocate on Record; Ms. Mukti Chowdhary, Advocate; Mr. Tushar Mehta, Solicitor General; Mrs. Manisha Lavkumar, Senior Advocate; Ms. Deepanwita Priyanka, Advocate on Record; Haryana: Mr. Anil Grover, Senior Additional Advocate General; Ms. Noopur Singhal, Advocate; Mr. Satish Kumar, Advocate; Mr. Sanjay Kumar Visen, Advocate on Record; Himachal Pradesh: Mr. Abhinav Mukerji, Advocate on Record; Mrs. Bihu Sharma, Advocate; Ms. Pratishtha Vij, Advocate; Jharkhand: Mr. Tapesh Kumar Singh, Advocate; Mr. Kumar Anurag Singh, Advocate; Mr. Aditya Pratap Singh, Advocate; Mrs. Bhaswati Singh, Advocate; Mr. Anando Mukherjee, Advocate; Jammu & Kashmir: Ms. Shashi Juneja, Advocate; Ms. Pinky Behera, Advocate; Karnataka: Mr. Shubhranshu Padhi, Advocate; Kerala: Mr. Jishnu M. L., Advocate; Ms. Priyanka Prakash, Advocate; Ms. Beena Prakash, Advocate; Maharashtra: Mr. Rahul Chitnis, Advocate; Mr. Sachin Patil, Advocate on Record; Mr. Aaditya A. Pande, Advocate; Mr. Geo Joseph, Advocate; Manipur: Mr. Pukhrambam Ramesh Kumar, Advocate; Ms. Anupama Ngangom, Advocate; Mr. Karun Sharma, Advocate; Meghalaya: Mr. Amit Kumar, Advocate General; Mr. Avijit Mani Tripathi, Advocate on Record; Mr. Shaurya Sahay, Advocate; Mr. Chetan Joshi, Advocate; Mr. Aditya Shanker Pandey, Advocate; Madhya Pradesh: Mr. Sunny Choudhary, Advocate on Record; Mr. Kameshwar Nath Mishra, Advocate; Mr. Arjun Garg, Advocate; Mizoram: Mr. Siddhesh Kotwal, Advocate; Ms. Astha Sharma, Advocate; Ms. Arshiya Ghose, Advocate; Nagaland: Ms. K. Enatoli Sema, Advocate on Record; Mr. Amit Kumar Singh, Advocate; Mr. Apratim Animesh Thakur, Advocate; Ms. Prachi Hasija, Advocate; Odisha: Mr. Ashok Parija, Advocate General; Mr. Sibo Sankar Mishra, Advocate on Record; Punjab: Mr. Karan Bharihoke, Advocate; Ms. Neha Sahai Bharihoke, Advocate; Rajasthan: Dr. Manish Singhvi, Senior Advocate; Mr. Sandeep Kumar Jha, Advocate on Record; Sikkim: Mr. Raghvendra Kumar, Advocate on Record; Mr. Anand Kumar Dubey, Advocate; Mr. Narendra Kumar, Advocate on Record; Tripura: Mr. Shuvodeep Roy, Advocate on Record; Tamil Nadu: Mr. Jayanth Muthuraj, Additional Advocate General; Telangana: Mr. M. Yogeshkanna, Additional Advocate General; Mr. S. Udaya Kumar Sagar, Advocate; Ms. Sweena Nair, Advocate; Uttar Pradesh: Ms. Garima Prashad, Advocate on Record; Uttarakhand: Dr. Abhishek Atrey, Advocate; Ms. Vidyottma Jha, Advocate; Ms. Ambika Atrey, Advocate; West Bengal: Mr. Suhaan Mukerji, Advocate; Mr. Vishal Prasad, Advocate; Mr. Nikhil Parikshith, Advocate; Mr. Abhishek Manchanda, Advocate; Mr. Sayandeep Pahari, Advocate; for PLR Chambers & Co. A&N Island: Mr. K. V. Jagdishvaran, Advocate; Chandigarh: Mr. Nikhil Goel, Advocate; Mr. Naveen Goel, Advocate; Mr. Dushyant Sarna, Advocate; Mr. Vinay Mathew, Advocate; D & N Haveli: Mr. Tushar Mehta, Solicitor General; Mr. Kanu Agarwal, Advocate; Mr. Rajat Nair, Advocate; Mr. Saurabh Mishra, Advocate; Mr. Raj Bahadur Yadav, Advocate on Record; Ladakh: Ms. Shashi Juneja, Advocate; Ms. Pinky Behera, Advocate; Lakshadweep: Mr. Raj Bahadur Yadav, Advocate; Puducherry: Mr. V. G. Pragasam, Advocate on Record; Mr. S. Prabu Ramasubramanian, Advocate; Mr. Nitin Mishra, Advocate; Ms. Mitali Gupta, Advocate; Mr. Colin Gonsalves, Senior Advocate; Mr. Gunjan Singh, Advocate; Ms. Sunaina Phul, Advocate., Upon hearing the counsel, the Supreme Court of India made the following observations. We have heard Mr. Prashant Bhushan, learned counsel for the petitioner; Mr. Tushar Mehta, learned Solicitor General of India; Mr. Ashok Parija, learned Advocate General of Odisha; Mr. Rahul Chitnis, learned counsel for the State of Maharashtra; and other learned counsel., This suo motu writ petition (Civil) No. 6 of 2020 (In Re: Problems and Miseries of Migrant Labourers) was filed. In the year 2020, when the nationwide lockdown was imposed on 24 March 2020, migrant labourers suffered greatly because of cessation of their employment. They were left with no financial support and a large exodus occurred from metropolitan cities such as Delhi and Bombay., The Supreme Court, in the writ petition, issued various directions including orders dated 09 June 2020 and 31 July 2020. On those dates, the Court directed all States and Union Territories to provide transport to all stranded migrant workers within fifteen days. In view of the surge of the second wave of COVID‑19 after March 2021, the National Capital Territory of Delhi and other States imposed fresh restrictions, night curfews and lockdowns in April 2021., The petitioner submits that in April 2021, due to restrictions, curfews and lockdowns in the National Capital Territory of Delhi, Uttar Pradesh and Haryana in the entire NCR region, migrant labourers lost their livelihood and began moving to their home districts fearing that the lockdown would continue, bringing further misery. The petitioner highlights that private bus owners were charging fares four to five times the normal rates., The petitioner points out that the Central Government announced the Atma Nirbhar Bharat Scheme, under which for the months of May and June 2020, five kilograms of food grains and one kilogram of pulses were to be provided to migrant labourers who were not covered by the Public Distribution System under the National Food Security Act. The petitioner also refers to the Pradhan Mantri Garib Kalyan Ann Yojana. The prayer is that the Central Government and State Governments immediately put in place mechanisms to provide rations to all migrant workers and their families who have been excluded from the National Food Security Act and PDS programmes, and that self‑declaration of need should be accepted to ensure maximum access for the marginalized., The petitioner also prays that free cooked food be provided through networks of community kitchens, hunger relief and feeding centres, especially at places where distressed migrant workers are congregating such as industrial areas, homeless shelters, bus stations, train stations and other locations. The petitioner requests that transport facilities be extended by State Governments to migrant labourers wishing to return to their hometowns, and that authorities ensure provision of necessary transport by the Central and State Governments. It is further pleaded that effective dissemination of information about all welfare schemes for migrant workers be published so that migrant labourers may access the schemes., After hearing learned counsel for the parties, we direct the Central Government as well as the Governments of the National Capital Territory of Delhi, Uttar Pradesh and Haryana (for the districts included in the NCR) to file a reply suggesting means and measures by which they shall ameliorate the miseries of stranded migrant labourers. We also issue notice to the States of Maharashtra, Gujarat and Bihar to file their reply giving details of the measures they propose to take to ameliorate the miseries of migrant workers regarding transportation of stranded migrant workers and providing dry ration as well as cooked meals., The interim directions are as follows: (1) Dry ration to migrant workers in the National Capital Region under the Atma Nirbhar Bharat Scheme or any other scheme shall be provided by the Union of India, the National Capital Territory of Delhi, Uttar Pradesh and Haryana utilizing the Public Distribution System prevalent in each State, effective from May 2021. While providing dry ration, the authorities shall not insist on an identity card for those migrant labourers who do not possess one, and self‑declaration by the stranded migrant labourers shall be sufficient. (2) The National Capital Territory of Delhi, Uttar Pradesh and Haryana (for the districts included in the NCR) shall ensure that adequate transport is provided to stranded migrant labourers who wish to return to their homes. The District Administration, in coordination with Police Administration, may identify such stranded migrant labourers and facilitate their transport by road or rail. The Union of India may also issue necessary instructions to the Ministry of Railways to take adequate measures to cater to the needs of migrant labourers. (3) The National Capital Territory of Delhi, Uttar Pradesh and Haryana (for the districts included in the NCR) shall open community kitchens at well‑advertised places in the National Capital Region for stranded migrant labourers so that they and their family members can receive two meals a day., In our earlier order dated 09 June 2020, paragraph 24 noted that an application was filed by the National Human Rights Commission for intervention, which was allowed. The Commission referred to six instances where it had taken suo motu cognizance of the issues and issued notices to various Government departments. The Commission also suggested certain short‑term and long‑term measures to ameliorate the conditions of migrant workers, invoking the Interstate Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979; the Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996; and the Unorganised Workers Social Security Act, 2008., Paragraph 31 observed that the majority of stranded workers had reached their native places. The second major task for the concerned States and Union Territories is to take care of those migrant workers who have returned to their native places after cessation of employment. The first step is to maintain a record of all such migrant workers, including details of their skills, nature of employment and place of earlier employment, in a prescribed proforma at village, block and district levels, so that necessary help can be extended by State and district authorities. Counselling centres should be set up at block and district levels to provide information regarding Government schemes and avenues of employment, and to expand employment opportunities for these workers., It was further submitted that some migrant labourers who had registered to return to their native places later changed their mind and, after reopening of industries, re‑joined employment and are not willing to return. Conversely, some who have returned to their native places are now willing to go back to their place of employment and are ready to undertake the return journey in search of work. The State may provide necessary information and facilitate the return of workers who wish to resume employment, by creating help desks with the assistance of railway and road transport authorities., Each State also has its own schemes for employment and welfare. Migrant labourers and other needy persons should be made aware of all schemes through counselling centres and help desks established by the States at district and block levels. All States and Union Territories should bring on record the different schemes enforced in the concerned State that may benefit migrant labourers, so that the Supreme Court of India may examine them for appropriate directions., The Court granted two weeks to all States and Union Territories to submit additional affidavits in response to the various aspects noted in the order. The Central Government was also directed to bring on record different schemes that can be taken by migrant labourers within two weeks., In paragraph 35(6) it was directed that the details of all migrant labourers who have reached their native places shall be maintained with details of their skill, nature of employment and earlier place of employment, and the list shall be maintained village‑wise, block‑wise and district‑wise to facilitate administration in extending benefits of different schemes., The matter again came up for hearing on 31 July 2020, where the issue of food security, health insurance for migrant labourers, presumption of work of migrant labourers and relaxation on insistence of registration was discussed. The Court observed that the issue shall be considered after the necessary affidavits as directed are filed by the States/Union Territories., By order dated 01 September 2020, the Court granted a further two weeks to the States/Union Territories to file their responses and the steps taken on the aforesaid issues. As most States have not filed specific responses or their responses are inadequate, a last chance is given of ten days to the National Capital Territory of Delhi, Uttar Pradesh, Haryana, Bihar, Gujarat, Maharashtra and Odisha to file specific responses on the issues referred to in the earlier orders dated 09 June 2020 and 31 July 2020, and to indicate the steps to be taken and the time required. For the time being, directions are issued to file the response/counter on the aforesaid issues to the aforesaid States only. Further directions for other States shall be issued hereinafter.
id_504	0	Present: C.R.A. 37 of 2017 (CRAN 2 of 2021) Md. Israil. The State of West Bengal for the appellant: Mr. Sourav Chatterjee, Advocate; Md. M. Nazar Chowdhury, Advocate; Ms. Priyanka Saha, Advocate. For the State: Mr. Binay Panda, Advocate; Mrs. Puspita Saha, Advocate. Heard on: 22 December 2021. Judgment on: 2 February 2022., This appeal is directed against the judgment dated 16 November 2016 and order dated 17 November 2016 passed by the Additional District and Sessions Judge, 2nd Court, Raiganj, Uttar Dinajpur in Sessions trial no. 04(03)15 arising out of POCSO Case No. 43 of 2014, convicting and sentencing the appellant for an offence punishable under Section 448 of the Indian Penal Code (simple imprisonment for a term of one year and fine of Rs 1000, in default to suffer simple imprisonment for two months); for an offence punishable under Section 506 (Part‑II) of the Indian Penal Code (simple imprisonment for a term of seven years and fine of Rs 5,000, in default to suffer simple imprisonment for six months); and for an offence punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (rigorous imprisonment for life and fine of Rs 10,000, in default to suffer further rigorous imprisonment for six months)., The prosecution case in brief is that the appellant used to come to the house of the victim for the last seven to eight years and the appellant used to call the victim as granddaughter. Taking advantage of the absence of other family members namely brother, father and grandmother of the victim girl, the appellant trespassed into the house of the victim and forcibly committed rape on her repeatedly on different occasions for the last six to seven months. On the basis of the aforesaid complaint dated 10 June 2014, lodged by the victim herself, Goalpokher Police Station case no. 292 of 2014 dated 10 June 2014 under Section 376(2)(i) of the Indian Penal Code and Section 4 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as POCSO Act, 2012), was initiated against the appellant., Upon completion of investigation police submitted charge‑sheet against the appellant under Section 376(2)(i) of the Indian Penal Code and Section 6 of the Protection of Children from Sexual Offences Act, 2012. Charge under Section 448/376(2)(i)/506 of the Indian Penal Code and Section 6 of POCSO Act, 2012, was framed against the appellant, who stated to be not guilty and claimed to be tried., The prosecution in order to prove its case examined thirteen witnesses and produced a number of documents. The defence case appearing from answers given by the appellant during his examination under Section 313 of the Criminal Procedure Code is of falsity due to old animosity and of innocence. The defence adduced the evidence of Witness 1, Lakh Debi Singha, in order to substantiate the fact that the appellant is not the actual perpetrator of the crime rather some other person has committed the crime upon the victim, who used to visit her., Upon considering the materials on record and the evidence led on behalf of the prosecution and the defence, the learned Additional District and Sessions Judge, 2nd Court, Raiganj, Uttar Dinajpur convicted and sentenced the appellant as aforesaid., Mr. Chatterjee, learned advocate appearing on behalf of the appellant, submitted that the grandmother of the victim girl who has been examined on behalf of the defence as Witness 1 is also resident of the same household and she deposed that some other boy used to come to their house to meet the victim girl and has impregnated the victim, which aspect makes the prosecution case against the appellant suspicious and unacceptable. Further, Witness 2, Bipin Singh, father of the victim girl, deposed before the court that the family consists of himself, his aged mother, two sons and daughter, but curious enough in corroboration none of the sons of Witness 2 has been examined by the prosecution to unearth the truth in the prosecution case. Moreover, it is submitted that the victim girl who is the complainant herself did not state in her written complaint that she got impregnated due to repeated sexual assault upon her by the appellant and therefore, such fact hits the root of the prosecution case and creates cloud over the same. Moreover, there are material omissions and discrepancies in the statement of the victim, which make the prosecution case improbable. Further, he drew the attention of the court to the fact that there has been substantial delay in lodging the written complaint by the victim which has not been duly explained and thus such aspect of unexplained delay in lodging the First Information Report makes the prosecution case questionable in the eye of law. Moreover, as per Witness 11, Dr. Subhendu Basak, Radiologist, the victim was pregnant with 26 weeks fetus, however, the DNA test of the child which was imperative to establish the case of the prosecution never saw the light of the day. It has been further argued that no injuries were detected in the body or private parts of the victim and hence the case of the prosecution is skeptical. In summation he contended that the prosecution has failed to bring home the vital charges framed against the appellant and as such the appeal needs to be allowed and the appellant be acquitted from the present case., In reply to the aforesaid contention raised on behalf of the appellant, Mr. Panda, learned Additional Public Prosecutor appearing on behalf of the State, submitted that evidence of Witness 1 (victim girl) is very much consistent with regard to the fact that the appellant is the sole perpetrator of the crime of penetrative sexual assault upon the victim girl. He fairly submitted that though in the written complaint or in her statement before the Judicial Magistrate the victim did not state of her pregnancy yet such aspect per se does not absolve the appellant from the charges brought against him. Moreover, oral evidence of prosecution witnesses namely the father (Witness 2), aunt (Witness 10) of the victim girl, Councillor of Childline (Witness 6) as well as medical evidence of doctors namely Witness 4 and Witness 11 reveals pregnancy of the victim girl. In cross‑examination the investigating officer (Witness 12) clearly indicated that he received a message on 1 December 2014 with regard to the fact that the victim gave birth to a still‑born baby on 29 August 2014. The DNA test was not conducted, however, such inadequacy in conducting the DNA test does not make the prosecution case altogether false in the light of the clinching evidence of the victim girl. In view of his aforesaid submissions he prayed that the judgment of conviction and order of sentence passed by the trial court be upheld by dismissing the present appeal., All the offences with which the appellant is charged, namely Sections 448, 506 and 376(2)(i) of the Indian Penal Code and Section 6 of the Protection of Children from Sexual Offences Act, 2012, are interlinked and therefore, it is profitable to discuss them as a whole in order to avoid needless repetition. The sixth clause to Section 375 of the Indian Penal Code defines rape as follows: A man is said to commit rape who, except in the case hereinafter excepted, has sexual intercourse with a woman under the circumstances falling under any of the six following descriptions: Sixthly – with or without her consent, when she is under sixteen years of age. Section 376(2)(i) of the Indian Penal Code contemplates the penal provision for commission of rape on a woman when she is under 16 years of age (provision as it stood after introduction of Criminal Law (Amendment) Act, 2013, which came into force on 3 February 2013). Section 5 of the Protection of Children from Sexual Offences Act, 2012, defines aggravated penetrative sexual assault on a child and Section 6 of the Act envisages the penal provision for such offence. Section 2(d) of the Act defines a child as a person below the age of 18 years. Therefore, the first and foremost aspect which needs scrutiny for primary application of both the aforesaid penal provisions is the age of the victim girl at the time of the commission of the offence. As per the prosecution case the age of the victim at the time of the incident was 15 years. Witness 1 (victim girl) stated in her evidence that at the time of incident she was a student of class X in Dharampur High School, which has been corroborated by her father Witness 2, Bipin Singh. The prosecution, in order to establish the age of the victim girl, examined Witness 13, Kanai Lal Singh, Head Clerk of Dharampur High School where the victim girl used to study. This witness proved the attested photocopy of the admission register (Exhibit 14) and authenticated the issuance of certificate dated 26 June 2014 (Exhibit 12) by the Teacher‑in‑charge, Dharampur High School collected during the course of investigation. Both Exhibit 12 and Exhibit 14 show the date of birth of the victim girl to be 16 December 1999. Such date of birth has remained unchallenged and uncontroverted during trial. A register maintained in a school is admissible in evidence to prove the date of birth of the person concerned in terms of Section 35 of the Evidence Act. Such dates of birth are recorded in the school register by the authorities in discharge of their public duty (see State of Chhattisgarh versus Lekhram reported in (2006) 5 SCC 736). There is also no contrary evidence to invalidate or disprove the entries appearing in the school admission register and the certificate issued on the basis of the same. Therefore the date of birth of the victim (as 16 December 1999) appearing in the school admission register (Exhibit 14) and the certificate dated 26 June 2014 (Exhibit 12) issued on the basis of the admission register is acceptable as proof of her date of birth. The deposition of Witness 1 (victim girl) was recorded on 25 May 2015 and she stated that the incident took place one year before. On 16 June 2014 she made her statement before the Judicial Magistrate under Section 164 of the Criminal Procedure Code (Exhibit 3) wherein she stated that the incident took place six to seven months ago. Witness 4, Dr. Sukumar Roy, Medical Officer (Surgeon), Islampur Sub‑Divisional Hospital, who examined the victim girl, deposed that on 10 June 2014 upon abdominal examination of the victim he found about 24 weeks fundal‑height of uterus. Witness 11, Dr. Subhendu Basak, Medical Officer, Radiologist, Islampur Sub‑Divisional Hospital, deposed that on 16 June 2014 he examined the victim and also conducted USG of whole abdomen of the victim and opined that there exists a single live fetus with maturity of 26 weeks 4 days plus or minus two weeks. Upon analysis of the aforesaid evidence it is found that the incident took place in the early part of 2014. Considering the same it is found that during the period of occurrence the victim girl was aged just above 14 years. Accordingly the requirement of age of the victim for applicability of the penal provisions embodied under Section 376(2)(i) of the Indian Penal Code and Section 6 of the Protection of Children from Sexual Offences Act, 2012 is fulfilled and thus attracts the above provisions in the facts and circumstances of the case., In a case relating to sexual assault and rape, the evidence of the victim girl is very much vital and if found reliable can form the basis of conviction of the accused without seeking further corroboration. The Honorable Apex Court in its decision passed in State of Punjab versus Gurmit Singh and Others reported in (1996) 2 SCC 384 held as follows: The testimony of the victim of sexual assault is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty in acting on the testimony of the victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation be viewed with doubt, disbelief or suspicion? The court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost on a par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained an injury in the occurrence, which is not found to be self‑inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person’s lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable. Keeping in mind the above observation of the Honorable Supreme Court let me assess and analyse the evidence of the victim girl and ascertain the extent of its reliability. Witness 1 (victim girl) deposed that the incident took place one year before in an evening when she was alone in the house. The appellant who was known to her since childhood and whom she called dadu came to their house. He enquired whether any other person was present in the house. On reply from the victim as to the absence of other family members the appellant pressed her mouth and forcibly brought her inside the room and bolted it from inside. He dashed the victim and she fell down. She tried to resist but the appellant committed rape upon her forcibly. The appellant committed such act forcibly five to six times when she was alone in the house. He also threatened her not to disclose the fact to anyone otherwise he would murder the victim and her brother. On going through her cross‑examination it is found that there are no notable contradictions to her aforesaid evidence. The victim herself lodged the written complaint (Exhibit 1) on 10 June 2014, where she has categorically stated that the appellant, who called her granddaughter, committed rape upon her many times. She tried to protest against such unsocial nasty work but the appellant threatened her of killing her along with her younger brother, father and grandmother. During the course of investigation the victim made statement before the Judicial Magistrate which has been recorded under Section 164 of the Criminal Procedure Code (Exhibit 3). Upon perusal of her statement made before the Judicial Magistrate (Exhibit 3) it is found that she has made categorical statement that six to seven months ago in the absence of other family members the appellant forcibly caused rape upon her and also threatened her that he would kill her along with her brother and father. It has been strenuously argued on behalf of the appellant that there are material omissions and discrepancies in the statement of the victim, which make the prosecution case improbable. In her cross‑examination the defence has indicated certain omissions in the written complaint (First Information Report) lodged by the victim herself vis‑à‑vis her statement made in court during deposition which are reproduced as follows: (i) It is not mentioned in her complaint that due to sexual assault several times caused by Md. Israil (the appellant) she conceived. (ii) It is not mentioned in her complaint that there was bleeding from her mouth. (iii) She cannot recollect whether she stated in her written complaint that there was bleeding from her genital organs. (iv) She did not specifically mention that the appellant used to threaten her with homicide. Upon perusal of the written complaint it is found that the above facts have not been stated in the complaint. Be that as it may, it is observed that the First Information Report is never an encyclopedia rather it is information made at the first instance which sets the criminal law into motion. Criminal courts should not be fastidious with mere omissions in the first information statements, since such statements cannot be expected to be a chronicle of every detail of what happened nor to contain an exhaustive catalogue of events which took place (see Rattan Singh versus State of Himachal Pradesh reported in (1997) 4 SCC 161). Further those are minor omissions or discrepancies and are not of fatal nature to throw away the prosecution case altogether. Thus the omissions indicated in the cross‑examination as above in the written complaint are of hardly any consequence in view of the clinching evidence of the victim that the appellant ravished her on several occasions, which has also been consistently stated by her in the written complaint (Exhibit 1)., Now, coming to the statement of the victim recorded under Section 164 of the Criminal Procedure Code (Exhibit 3) the defence indicated certain omissions in her above statement vis‑à‑vis her statement made in court during deposition which are elucidated herein below: (i) It is not mentioned in her statement before the Magistrate that there was bleeding from her mouth at the time of the incident. (ii) She cannot recollect whether she stated before the Magistrate that there was bleeding from her genital organs. Upon going through the statement of the victim recorded under Section 164 of the Criminal Procedure Code (Exhibit 3) it is found that she did not state such fact. However, in my opinion such omission did not hit the root of the prosecution, in view of consistent statement of the victim regarding commission of the alleged offence by the appellant. In its decision passed in State of Punjab versus Gurmit Singh and Others (supra) the Honorable Apex Court observed as follows: The courts must, while evaluating evidence, remain alive to the fact that in a case of rape no self‑respecting woman would come forward in a court just to make humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. There are no material contradictions or contrary circumstance to disbelieve the evidence of the victim girl. The evidence of the victim girl before the court, her written complaint and her statement before the Judicial Magistrate is consistent with the fact that the appellant committed forcible rape upon her on several occasions. It is pertinent to note that in her cross‑examination the victim girl has deposed that she stated of the misdeed of the accused (appellant) in her complaint before the Magistrate as well as investigating officer. The aforementioned discrepancies or omissions found in the earlier statement and the evidence of the victim girl before the court are minor and not fatal to throw away an otherwise reliable prosecution case. Thus the evidence of the victim girl is very much reliable to act upon. Witness 6, Dr. Sanjoy Seth, in his evidence as well as in medical report (Exhibit 6) opined that the appellant is capable of performing sexual intercourse. It has been vehemently argued on behalf of the defence that no injuries were detected in the body or private parts of the victim and hence the case of the prosecution is doubtful. Witness 4, Dr. Sukumar Roy, who examined the victim, in his evidence and medical report (Exhibit 2) noted that there was no external injury or injury in the genital of the victim, however, it is apposite to note that the examination of the victim has been done after five to six months of the incident upon lodging of the First Information Report on 10 June 2014 and as such there is every possibility of absence of injuries and thus it was obvious that the doctor did not find any such injuries and further medical examination after a considerable period cannot be expected to corroborate forcible intercourse (see Dildar Singh versus State of Punjab reported in (2006) 10 SCC 531). Therefore such aspect cannot detract from the reliability of her consistent evidence that she was ravished by the appellant on several occasions., Further, the victim in her evidence in chief deposed that the appellant committed sexual assault upon her on several occasions on different days due to which she conceived. The aforesaid evidence is corroborated by the father of the victim namely Witness 2, Bipin Singh, who deposed that he came to learn of such fact of pregnancy of the victim from his mother (grandmother of the victim). Witness 3, Reshmi Dutta, Councillor, Childline, deposed that when they along with the local police visited the victim girl she was pregnant of five to six months. Witness 10, Rekha Burman, aunt of the victim also deposed that she came to learn from the victim girl that she conceived and in cross‑examination this witness deposed that the victim told her that she was six months pregnant after counting from the date of incident. The defence witness Witness 1, Lakh Debi Singha (grandmother of the victim) also deposed that the victim was five to six months pregnant. Witness 4, Dr. Sukumar Roy, Medical Officer (Surgeon), Islampur Sub‑Divisional Hospital, deposed that on abdominal examination he found 24 weeks fundal‑height of uterus. Witness 11, Dr. Subhendu Basak, Medical Officer, Radiologist, Islampur Sub‑Divisional Hospital, deposed that on 16 June 2014 he examined the victim and also conducted USG of whole abdomen of the victim and opined that there exists a single live fetus with maturity of 26 weeks 4 days plus or minus two weeks. Further it is relevant to note that in cross‑examination Witness 12 (Investigating Officer) deposed that he received a message on 1 December 2014 of the fact that the victim girl gave birth to a still‑born baby on 29 August 2014. Thus, from the evidence on record as discussed above it is quite apparent that the victim was pregnant of five to six months at the time of lodging of the complaint and she gave birth to a still‑born baby., It has been vociferously argued on behalf of the defence that during the course of investigation or thereafter no DNA test of the child was done to conclusively establish that the victim girl was impregnated by the appellant and moreover Witness 1, Lakh Debi Singha (grandmother of the victim girl) deposed that some other boy used to visit the victim which has resulted in the pregnancy of the victim. As per Witness 12 (Investigating Officer) he received a message on 1 December 2014 that the victim delivered a still‑born baby on 29 August 2014. However, no such DNA test of the said child was done. Although this might be a drawback on the part of the investigating officer in not conducting the DNA test, that cannot be a ground to discredit the testimony of the victim girl. The victim girl had no control over the investigating agency and any negligence of the investigating officer cannot affect the credibility of the evidence of the victim girl (see State of Punjab versus Gurmit Singh and Others (supra)). Therefore from the consistent evidence of the victim as discussed above regarding the sexual assault perpetrated upon her by the appellant which resulted in her pregnancy and the other evidences on record that of Witness 2 (father of the victim), Witness 3 (Councillor, Childline), Witness 10 (aunt of the victim), Witness 1 (grandmother of the victim) and the medical evidence stating pregnancy, there cannot be any doubt that due to such sexual assault by the appellant upon the victim, she became pregnant. Although the defence tried to establish that some other boy, who used to visit the victim, is responsible for the pregnancy of the victim, nothing specific has been established by the defence. There is no contrary evidence against the statement of the victim as regards the sexual assault by the appellant upon her resulting in subsequent pregnancy. Further, the defence has tried to establish a case of falsity on the ground of animosity. It is pertinent to note that the defence witness Witness 1, Lakh Debi Singha, has stated that there was neither land dispute nor previous enmity or rivalry between her son and the appellant. No evidence of land dispute has been established by the defence. Therefore the case of the defence of falsity and animosity does not stand to reason and cannot be accepted. Thus, the evidence of the victim girl and other evidence as discussed above unerringly point to the guilt of the appellant as the person who ravished the victim on several occasions by entering into their house during the absence of other family members resulting in her pregnancy and also of threatening the victim with consequences to kill her and her family members in order to coerce her from disclosing such fact to her family members., Lastly, it has been fervently argued that the case of the prosecution is shrouded with suspicion as there is immense delay in lodging of the First Information Report. It is a fact that there is delay in lodging the First Information Report. I am not oblivious to the fact that the victim is of tender age. In her evidence before the court as well as in the written complaint (Exhibit 1) and in her statement under Section 164 of the Criminal Procedure Code (Exhibit 3) she has consistently stated continuous threatening by the appellant. The victim girl belonging to a traditional non‑permissive Indian society would be extremely reluctant to admit occurrence of any incident that would reflect upon her chastity, leading to being looked down upon and ostracized by the society. Therefore her not informing anyone under the circumstances cannot detract from her reliability. In the normal course of human conduct, this unmarried minor girl would not like to give publicity to the traumatic experience she had undergone and would feel terribly embarrassed in relation to the incident to narrate it to anyone, overpowered by feeling of shame and her natural inclination would be to avoid talking about it to anyone, lest the family name and honour is brought into controversy. The courts cannot overlook the fact that in sexual offences delay in lodging the First Information Report can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns the reputation of the prosecutrix and the honour of her family. It is only after giving cool thought that a complaint of sexual offence is generally lodged (see State of Punjab versus Gurmit Singh and Others (supra)). Witness 2, Bipin Singh, father of the victim, deposed that he came to learn from his mother that the victim had conceived due to misdeed committed by the appellant, upon enquiry about the change in the physical appearance of the victim. Witness 10, Rekha Barman, aunt of the victim, also deposed that she came to learn from the victim that she conceived and that appellant committed rape upon her. The evidence of Witness 3, Reshmi Dutta, Councillor, Childline, shows that they received information over telephone and visited the victim along with the local police and found the victim five to six months pregnant. They talked with the victim and thereafter the victim lodged complaint. Therefore it is quite apparent from the above evidence that the victim did not inform about the incident due to continuous threatening by the appellant and only when her pregnancy was discovered, she lodged the complaint. I am also not unmindful of social stigma attached to the nature of the offence which might have also attributed to the delay in lodging the First Information Report. Even otherwise, the mere fact of delay in filing complaint in regard to an offence of this nature by itself would not be fatal so as to vitiate the prosecution case (see State of Chhattisgarh versus Derha reported in (2004) 9 SCC 699).
id_504	1	Further there is no evidence of concoction of a false version or embellishment. Accordingly, the argument advanced in this regard does not stand to reason., Section 37(5) of the Indian Penal Code defines rape as when a man has sexual intercourse with a woman who is under sixteen years of age, with or without her consent. From the evidence discussed above it is apparent that the appellant committed rape upon the victim aged just above fourteen years forcibly. Therefore, as per the defining provisions of the Indian Penal Code, the consent of the victim becomes immaterial. Accordingly, the presumption of law under Section 114A of the Evidence Act that the act has been committed without the consent of the victim is of no relevance in the facts and circumstances of the present case., Section 29 of the Protection of Children from Sexual Offences Act 2012 provides that where a person is prosecuted for committing, abetting or attempting to commit any offence under Sections 3, 5, 7 and 9 of that Act, the Special Court shall presume that such person has committed, abetted or attempted to commit the offence, unless the contrary is proved. It is placed on record that there is no contrary evidence forthcoming from the defence to hold otherwise. Therefore, the presumption of law envisaged under Section 29 of the Act is also against the appellant to have committed an aggravated penetrative sexual act upon the victim, as the same has not been rebutted., In the light of the above discussion and considering the evidence of the victim girl (Witness 1) and other evidences on record, the offence under Section 376(2)(i) of the Indian Penal Code and Section 6 of the Protection of Children from Sexual Offences Act 2012 has been well established by the prosecution beyond a reasonable doubt. There is also evidence of trespass into the house of the victim by the appellant for committing the heinous offence of rape and subsequent threatening of killing the victim and her family members for not disclosing the fact to anyone. The ingredients of Section 448 and Section 506(II) of the Indian Penal Code are also established. Although the trial court held that the charge under Section 376(2)(i) of the Indian Penal Code and Section 6 of the Protection of Children from Sexual Offences Act 2012 has been established, it did not record a conviction under Section 376(2)(i) in the ordering portion on the ground of congruency of punishment. That aspect is of hardly any consequence as the ingredients of both offences are proved and both offences carry a similar degree of punishment. Accordingly, the conviction of the appellant made by the trial court is upheld., Now coming to the aspect of sentencing, the trial court has convicted the appellant for the offence under Section 6 of the Protection of Children from Sexual Offences Act 2012 for rigorous imprisonment for life. In a criminal trial the aspect of sentencing remains a vital question bearing upon the aggravating circumstances before the High Court. Crime against women is increasing as a whole. Such type of crime is a direct insult to the human dignity of society and therefore the imposition of any inadequate sentence not only results in injustice to the victim and society in general but also stimulates criminal activities. Obligation is thus bestowed upon the High Court for imposing appropriate punishment against such criminals in response to the cry of society. While considering the appropriate punishment the High Court must keep in view both the rights of the accused and the rights of the victim who suffers in the hands of the perpetrator. The offence of rape and sexual assault not only causes physical scar but also causes mental scar which the victim has to bear throughout her life. In the present case, the offence of penetrative sexual assault has been committed upon a helpless victim of fourteen years, which is inhumane and shakes the judicial conscience., However, keeping in mind the entirety of the circumstances I am of the opinion that the quantum of sentence imposed by the trial court for rigorous imprisonment for life in respect of the offence under Section 6 of the Protection of Children from Sexual Offences Act 2012, which is the maximum, needs to be re‑looked. Ordinarily sentence should be commensurate with the gravity of the offence and should act as a deterrent to the commission of such offences. Section 6 of the Protection of Children from Sexual Offences Act 2012 contemplates punishment with rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine. In the present case it is found that there was repeated sexual assault upon the victim by the appellant resulting in her pregnancy, which is an aggravating circumstance. Thus, keeping in mind the entire gamut of circumstances, a term of fourteen years of rigorous imprisonment will be commensurate with the nature of the offence and accordingly the sentence for rigorous imprisonment for life imposed in respect of Section 6 of the Protection of Children from Sexual Offences Act 2012 is reduced to rigorous imprisonment for a term of fourteen years. The sentence of fine together with the default clause imposed by the trial court is maintained. The compensation granted to the victim under the Victim Compensation Scheme and disbursement of the fine amount to the victim, if recovered from the appellant, is also maintained. The sentence imposed in respect of the offences under Section 448 and Section 506(II) of the Indian Penal Code is upheld. All the sentences shall run concurrently. The period of detention undergone by the appellant during investigation, inquiry or trial of the case shall be set‑off in terms of Section 428 of the Criminal Procedure Code., In the light of the above discussion, the conviction of the appellant is upheld and the sentence passed by the learned trial court is modified to the extent as aforesaid., The instant appeal is, accordingly, allowed in part to the extent of modification in the sentence imposed in respect of the offence under Section 6 of the Protection of Children from Sexual Offences Act 2012 as indicated in the foregoing paragraph., Copy of the judgment along with the lower court records shall be sent down to the learned trial court at once., Criminal Revision Application 37 of 2017 along with Criminal Revision Application No. 2 of 2021 stands disposed of., Urgent photostat certified copy of this judgment, if applied for, shall be supplied expeditiously after complying with all necessary legal formalities. I agree.
id_507	0	16 December 2022 – The Hon'ble Chief Justice and Hon'ble Judges of the High Court of Madhya Pradesh, in the Full Court meeting held on 15 December 2022, resolved that all courts other than the High Court shall hereinafter be referred to as the “district judiciary” and not as “subordinate judiciary”, and that all courts other than the High Court shall be referred to as the “trial courts” and not as “subordinate courts”. Therefore, all concerned are hereby informed accordingly. Jabalpur, dated 16 December 2022. Copy forwarded to: Principal Secretary, Law and Legislative Affairs Department, Government of Madhya Pradesh, Bhopal 462004, for information; all the principal District and Sessions Judges of the state for information and necessary action; Deputy Controller, Government Central Press, Arera Hills, Habibganj, Bhopal-6 for publication in the next edition of the Gazette of Madhya Pradesh; the Principal Accountant General (Accounts and Entitlements) First (T.M. Section), Office of the Accountant General, Madhya Pradesh, Lekha Bhawan, Jhansi Road, Gwalior 474002, for information; the Accountant General (2), Madhya Pradesh, Gwalior, for information; Officer on Special Duty (Computer), High Court of Madhya Pradesh, Jabalpur, for sending the copy of this order through e‑mail to Hon'ble Judges of the High Court of Madhya Pradesh, Jabalpur and benches at Indore and Gwalior; Officer on Special Duty (Computer), High Court of Madhya Pradesh, Jabalpur, for sending the copy of this order through e‑mail to the following judicial officers: District Judge (Inspection), High Court premises, Jabalpur/Indore/Gwalior, Madhya Pradesh, for information; Principal Registrar, High Court of Madhya Pradesh, bench at Indore/Gwalior, for information; Member Secretary, Madhya Pradesh State Legal Services Authority, 574 South Civil Lines, Jabalpur, for information; Principal Registrar (Vigilance/Judicial/ILR and Examination), High Court of Madhya Pradesh, Jabalpur, for information; Registrar (Examination & Labour Court/District Establishment/Works and Infrastructure/IL/Judicial‑1/Judicial‑2/Vigilance), Member Secretary (SCMS), Registrar, Secretary, High Court Legal Services Committee, Administration, Officer on Special Duty, High Court of Madhya Pradesh, Jabalpur, for information; Director/Additional Director, Madhya Pradesh State Judicial Academy, First Floor, Abolished State Administrative Tribunal building, Jabalpur, for information; Registrar (Examination), Accounts Officer, Budget Officer, Deputy Registrar (Judicial‑1/Judicial‑2), Protocol, High Court of Madhya Pradesh, Jabalpur, for information; Officer on Special Duty cum Principal Private Secretary to Hon'ble Chief Justice, High Court of Madhya Pradesh, Jabalpur, for His Lordship’s kind information; Secretary to the Registrar General, High Court of Madhya Pradesh, Jabalpur, for information; Administrative Officer, Pension/Budget/Assistant (Works)/Complaint/Pay Fixation (gazetted)/Advance/Leave (gazetted)/Civil Checker/Criminal Checker, High Court of Madhya Pradesh, Jabalpur, for information. Note: Vide Registry Endorsement No. Reg(IT)(SA)/2018/368 dated 01 March 2018, all concerned are informed to download a copy of this order.
id_508	0	Thursday, the 1st day of September 2022 / 10th Bhadra, 1944. Writ Petition (Civil) praying inter alia that in the circumstances stated in the affidavit filed along with the Writ Petition (Civil) the High Court be pleased to set aside Exhibit P9 issued by the fifth respondent in response to Exhibit P8 and issue a writ in the nature of mandamus or any other writ, direction or order directing the respondents to grant ex gratia compensation offered to families of deceased who have succumbed to COVID-19 to the petitioner and her children within a short time frame as may be decided by this Honourable High Court., This petition again comes on for orders upon perusing the petition and the affidavit filed in support of the Writ Petition (Civil) and the High Court's order dated 10-08-2022 and upon hearing the arguments of Messrs. PRABHU K. N. and MANUMON A., for Additional Respondent 8, the High Court passed the following: Dated this the 1st day of September 2022. The documents on record prima facie show that the petitioner's husband died due to adverse events following immunisation. This writ petition is filed seeking the following reliefs: set aside Exhibit P9 issued by the fifth respondent in response to Exhibit P8; issue a writ in the nature of mandamus or any other writ, direction or order directing the respondents to grant ex gratia compensation offered to families of deceased who have succumbed to COVID-19 to the petitioner and her children., When the matter was taken up on the previous occasion, the learned Additional Solicitor General was directed to obtain instructions as to whether the Government of India has formulated any policy for compensating the victims of adverse events following COVID-19 vaccination. The learned Additional Solicitor General submitted that no such policy has so far been formulated. Sitting in this jurisdiction, I have come across at least three cases where pleadings are to the effect that the person who had undergone COVID-19 immunisation vaccination had succumbed to the after-effects of vaccination. Therefore, even if the numbers are very few, there are instances where persons are suspected to have succumbed to the after-effects of immunisation. In such circumstances, respondents two and eight are bound to formulate a policy for identifying such cases and compensating the dependents of the victim. The second respondent is hence directed to formulate policy and guidelines for identifying cases of death due to the after-effects of COVID-19 vaccination and for compensating the dependents of the victim. The needful in this regard shall be done as of 01-09-2022 by the Assistant Registrar expeditiously as possible and at any rate within three months.
id_509	0	Jan Kalyan Samiti versus State of Haryana and others. Present: Mr. Deepender Singh, Advocate, for the petitioner. Mr. Aman Bahri, Additional Advocate General, Haryana, for the respondents. This case has been taken up for hearing through videoconferencing. Notice of motion returnable on 19 November 2020. Mr. Aman Bahri, Additional Advocate General, Haryana, accepts notice on behalf of the respondents., The petitioner is a registered body under the provisions of the Haryana Registration and Regulation of Societies Act, 2012. According to the averments made in the petition, Faridabad Township came into existence immediately after the partition of the country. A master plan was drawn for development of the township making provision for parks, schools and green areas. According to the master plan, residential areas of Faridabad Industrial Township were divided into five parts named Neighbourhood I, II, III, IV and V. As per the layout of NH‑2, Faridabad, approved vide Drawing No. FCA/STP/613 dated 15 June 1986, Pocket‑1 (Block‑C) and Pocket‑2 (Block‑D) were earmarked for public park in NIT Faridabad. The total area of these parks was approximately 7.5 acres., It is further averred that, in due course, jhuggis, residential houses, workshops etc. came up unauthorisedly in the open areas. There is reference to CWP No. 13508 of 2006, wherein the Hon'ble High Court of Punjab and Haryana at Chandigarh directed the respondents to identify all encroachments on any part of the road, footpaths or parks reserved for the benefit of residents and to take effective action for removal of the same. The petitioner society made a representation in terms of the order dated 23 September 2009 passed by the Hon'ble High Court in CM No. 15936 of 2009 in CWP No. 13508 of 2006, but no action was taken on the representation., The petitioner society filed Civil Original Court Petition No. 2254 of 2009. According to an affidavit filed by the Financial Commissioner and Principal Secretary to the Government of Haryana, Urban Local Bodies Department, Chandigarh, in that petition, jhuggi dwellers were to be rehabilitated in three phases. The contempt petition was disposed of on 7 September 2010. Since no action was taken by the respondents, the petitioner society was constrained to file Civil Original Court Petition No. 2064 of 2015, which is still pending before the Hon'ble High Court. The reply to that petition stated that the jhuggi dwellers were still occupying public park land and that the Municipal Corporation, Faridabad was trying its best to vacate these land pockets. It was also brought to the notice of the Court that final notices had been issued to the jhuggi dwellers on 22 July 2016., During the interim, the jhuggi dwellers approached the Court by way of various writ petitions, which were disposed of by the Hon'ble High Court. Respondent No. 3 constituted three committees for deciding the representations of the jhuggi dwellers. The committees found that the jhuggi dwellers had unauthorisedly encroached upon the public land and were liable to be evicted. Thereafter, a reply/action taken report was filed., The Court was apprised by affidavit dated 6 July 2020 that the Government of Haryana on 29 May 2020 had approved the proposal dated 20 December 2019 regarding change of land use from park to residential area. This was also conveyed to the Municipal Corporation, Faridabad on 3 June 2020. The Municipal Corporation sought public objections and suggestions on the proposed action, and objections were filed by as many as 603 persons., It is in these circumstances that the present petition has been filed assailing the letter/communication dated 3 June 2020 (Annexure P‑21) issued by Respondent No. 2, the approval dated 29 May 2020 (Annexure P‑22), the letter dated 8 August 2019 (Annexure P‑23) and the letter dated 19 June 2020 (Annexure P‑28) issued by the Commissioner, Municipal Corporation, Faridabad. According to learned counsel for the petitioner, a public park cannot be permitted to be converted into a residential area. The contention is that the decision to convert the public park into a residential area is contrary to the orders passed by the Hon'ble High Court in CWP No. 3323 of 2003, CWP No. 13508 of 2006, Civil Original Court Petition No. 2254 of 2009 and Civil Original Court Petition No. 2064 of 2015. Learned counsel further contended that the action of the respondents to convert the public park into a residential area is unreasonable, arbitrary and violative of Articles 21 and 48 of the Constitution of India., The petition also refers to the decision of the Hon'ble Supreme Court of India in Bangalore Medical Trust versus B.S. Muddappa and others, (1991) 4 Supreme Court Cases 54, where the Court held that it is improper to confer a largesse on a private party at the expense of the general public. The special consideration extended to the appellant was not permissible under the Act. Allotting an area reserved for a public park, even for the purpose of constructing a hospital, would sacrifice the public interest in preserving open spaces for ventilation, recreation and protection of the environment., The Court observed that an open space reserved for a park or playground for the general public, in accordance with a formally approved and published development scheme, cannot be allotted to a private person or body for the purpose of constructing a hospital. The members of the public, being residents of the locality, have a right to object to such diversion and deprivation of a park meant for the general public and for the protection of the environment. The relevant provisions of the Bangalore Development Authority Act were examined, emphasizing that the scheme is meant to promote orderly development of the city and to preserve open spaces for recreation, ventilation and fresh air., The Hon'ble Supreme Court of India in Virender Gaur and others versus State of Haryana and others, (1995) 2 Supreme Court Cases 577, held that the Government could not sanction a lease in favour of a private party where municipal land was earmarked for open space for public use, i.e., to maintain ecology and a hygienic environment. The Court reiterated that the purpose of the scheme was to reserve land for open spaces for better sanitation, environment and recreational purposes of the residents, and that the government had no power to lease out such land., The Court also considered arguments advanced by counsel for the appellants and the municipality. It was contended that the government had formulated general guidelines allowing lease of municipal land for charitable purposes and that the assignment of land for a period of ninety‑nine years was in accordance with the provisions of the Act. However, the Court held that the action taken by the government was wholly without authority of law and jurisdiction, and that the sanction of land for a different use defeated the purpose of the scheme and violated law and the Constitution., The discussion further highlighted the environmental dimension. Environmental pollution causes bodily disabilities and affects the health of the general public. The Stockholm Declaration of the United Nations on the Human Environment, 1972, Principle No. 1 states that man has the fundamental right to freedom, equality and adequate conditions of life, and bears a solemn responsibility to protect and improve the environment for present and future generations., Article 48A of the Constitution, introduced by the 42nd Amendment Act, 1976, enjoins that the State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country. Article 47 imposes a duty on the State to improve public health. Article 51A(g) imposes a fundamental duty on every citizen of India to protect and improve the natural environment, including forests, lakes, rivers and wildlife, and to have compassion for living creatures. The word ‘environment’ is broad and includes hygienic atmosphere and ecological balance. Accordingly, both the State and every citizen have a duty to maintain a hygienic environment., Article 21 protects the right to life as a fundamental right. Enjoyment of life with human dignity encompasses protection and preservation of the environment, ecological balance, clean air and water, and sanitation. Any act that causes environmental pollution amounts to a violation of Article 21. Therefore, a hygienic environment is an integral facet of the right to a healthy life., Section 203 of the Haryana Town and Country Planning Act enjoins the municipality to frame a scheme providing environmental and sanitary amenities and to obtain sanction from the competent authority to provide, preserve and protect parks, open lands, sanitation, roads, sewage, etc., to maintain ecological balance with a hygienic atmosphere for present and future residents. Lands vested under Section 61(c) of the Act should be used for the purposes envisaged therein. The municipality must use the land for the purposes envisaged in the scheme unless an unavoidable compelling public purpose requires a change of use., The Court concluded that the action of the respondents in converting the public park into a residential area is unconstitutional and contrary to law. The residents of the society have a fundamental right to fresh air and to enjoy public amenities. The respondents are bound to preserve and save open spaces. Accordingly, there shall be a stay of the letter/communication dated 3 June 2020 (Annexure P‑21) issued by Respondent No. 2, the approval dated 29 May 2020 (Annexure P‑22), the letter dated 8 August 2019 (Annexure P‑23) and the letter dated 19 June 2020 (Annexure P‑28) issued by the Commissioner, Municipal Corporation, Faridabad, till further orders.
id_51	0	Reportable Criminal Appeal No. 742 of 2020 (Arising out of Special Leave Petition (Criminal) No. 5598 of 2020) Arnab Manoranjan Goswami Appellant versus the State of Maharashtra and others Respondents. Criminal Appeal No. 743 of 2020 (Arising out of Special Leave Petition (Criminal) No. 5599 of 2020) and Criminal Appeal No. 744 of 2020 (Arising out of Special Leave Petition (Criminal) No. 5600 of 2020). Justice Dhananjaya Y. Chandrachud. This judgment has been divided into sections to facilitate analysis: The appeal; The parties, the First Information Report and a summary; Previous proceedings against the appellant; Re‑opening of investigation and arrest of the appellant; Submissions of counsel; Criminal Appeal No. 743 of 2020 (Arising out of Special Leave Petition (Criminal) No. 5599 of 2020); Criminal Appeal No. 744 of 2020 (Arising out of Special Leave Petition (Criminal) No. 5600 of 2020); Jurisdiction of the Bombay High Court under Article 226 and Section 482 of the Code of Criminal Procedure; Prima facie evaluation of the First Information Report and the grant of bail; Human liberty and the role of courts; Conclusion., While invoking the jurisdiction of the Bombay High Court under Articles 226 and 227 of the Constitution of India and Section 482 of the Code of Criminal Procedure, 1973, the appellant sought three substantive reliefs: (i) a writ of habeas corpus, claiming that he had been illegally arrested and wrongfully detained by the Station House Officer at Alibaug Police Station in the district of Raigad, Maharashtra, in relation to a First Information Report registered on 5 May 2018 under Sections 306 and 34 of the Indian Penal Code, despite an earlier closure report that had been accepted by the magistrate; (ii) the quashing of the aforementioned First Information Report; and (iii) the quashing of the arrest memo on the basis of which the appellant had been arrested. These three reliefs are reflected in prayers (a), (b) and (c) of the petition before the Bombay High Court., The petition prayed: (a) issue a writ of habeas corpus or any similar writ, order and direction directing the respondents to produce the petitioner who has been illegally arrested and wrongfully detained in relation to First Information Report No. 0059 of 2018 dated 5 May 2018, registered at Alibaug Police Station, Raigad, under Sections 306 and 34 of the Indian Penal Code, despite a closure report being filed; (b) issue a writ of mandamus or any similar writ, order and direction quashing the First Information Report No. 0059 of 2018 dated 5 May 2018, registered at Alibaug Police Station, Raigad, under Sections 306 and 34 of the Indian Penal Code; (c) issue a writ of certiorari or any similar writ, order and direction quashing and/or setting aside the arrest memo, if any, on the basis of which the respondents have wrongfully and illegally arrested the petitioner., Pending the disposal of the petition, by an interim application in the proceedings, the appellant sought his release from custody and a stay of all further proceedings, including the investigation, in pursuance of the First Information Report., The Division Bench of the Bombay High Court, by its order dated 9 November 2020, noted that prayer (a) for a writ of habeas corpus was not pressed. The Bombay High Court posted the hearing of the petition for considering the prayer for quashing of the First Information Report on 10 December 2020. It declined to accede to the prayer for the grant of bail, placing reliance on a decision of the Supreme Court of India in State of Telangana v. Habib Abdullah Jeelani. The Bombay High Court was of the view that the prayers for interim relief proceeded on the premise that the appellant had been illegally detained and, since he was in judicial custody, it would not entertain the request for bail or for a stay of the investigation in the exercise of its extraordinary jurisdiction. The Bombay High Court held that, since the appellant was in judicial custody, he was free to avail himself of the remedy of bail under Section 439 of the Code of Criminal Procedure. The Bombay High Court declined, prima facie, to consider the appellant’s submission that the allegations in the First Information Report, read as they stand, do not disclose the commission of an offence under Section 306 of the Indian Penal Code. The appellant is aggrieved by the denial of his interim prayer for the grant of bail., (a) Pending final hearing and disposal of the captioned writ petition, the Bombay High Court be pleased to grant bail to the petitioner in First Information Report No. 59 of 2018 and direct the respondents to immediately release the petitioner from illegal detention and wrongful custody or arrest in view of the detailed submissions made herein above, to meet the ends of justice. (b) Pending the final hearing and disposal of the captioned writ petition, the Bombay High Court be pleased to stay all further proceedings, including the investigation in First Information Report No. 59 of 2018, with respect to the petitioner., The appellant is the editor‑in‑chief of an English television news channel, Republic TV. He is also the managing director of ARG Outlier Media Asia News Private Limited, which owns and operates a Hindi television news channel named R Bharat. The appellant anchors shows on both channels., The appellant was arrested on 4 November 2020 in connection with First Information Report 59 of 2018, which was registered at Alibaug Police Station under Sections 306 and 34 of the Indian Penal Code., The genesis of the First Information Report can be traced back to December 2016, when a company named ARG Outlier Media Private Limited (ARG) awarded a contract for civil and interior work to another company, Concorde Design Private Limited (CDPL), which was substantially owned by Anvay Naik (the deceased)., The First Information Report was registered on 5 May 2018 on the complaint of Smt. Akshata Anvay Naik, age 48, a housewife residing at 901 Rishabh Tower, Senapati Bapat Marg, Elphinstone West, Mumbai‑25, who stated in writing that she lived with her deceased husband Anvay Madhukar Naik and daughter Adnya Naik. She explained that her husband owned a company named Concorde Design, through which they earned their livelihood in architecture, interior designing and engineering consultancy. The husband’s native place was Village Kavir, Taluka Alibag, Raigad, where his mother‑in‑law Kumud Madhukar Naik resided. The husband frequently visited his mother‑in‑law both at Kavir and in Mumbai. For the last two years he was under pressure because he had not received payment for work carried out, and he repeatedly informed his wife of the financial difficulty. On 4 May 2018 at 3.45 pm the husband and his mother‑in‑law left their Mumbai residence and travelled to Alibaug, Kavir. Later that evening the wife called her mother‑in‑law’s mobile number 9763437648 and was informed that they had reached the farmhouse. On the morning of 5 May 2018 at 9.30 am the wife received a call that her mother‑in‑law Kumud Naik had died. The wife, her daughter Adnya, sister Mrs. Manjusha Durgesh Vaingankar and her daughter Shreya Vaingankar travelled to Alibaug. Upon arrival they found a large crowd and police presence. Inside the house they discovered Kumud Naik lying on a bed in the dining room and, on the upper floor, Anvay Madhukar Naik hanging from an iron pipe. Police informed them that the bodies were being taken to Civil Hospital, Alibaug. The police also showed a suicide note written in English by Anvay Madhukar Naik., The suicide note read, in part: (1) Suicide Note; (2) We are committing suicide due to the following; (3) Our company, Concorde Designs Pvt Ltd; (4) We are both directors, Mr. Anvay M. Naik and Kumud M. Naik; (5) Money is stuck and the owners of certain respected companies are not paying our legitimate dues; (6) Mr. Arnab Goswami, ARG Outlier of Republic TV, has not paid Rs 83 lakh for the Bombay Dyeing Studio project; (7) Firoz Khan, Icaswt X/Skimedia, has not paid Rs 400 lakh for the Laxmi, third and fourth floor Idea Square project in Andheri; (8) Mr. Nitesh Sarda, owner of Smart Works, Magarpatta and Baner Project, has Rs 55 lakh pending; (9) Kindly collect money from them and hold them responsible for our death and pay the creditors; (10) I and my mother are directors in Concorde India company and the following persons have not paid me for work done: Arnab Goswami, ARG Outlier of Republic TV, having Rs 83 lakh of work done; Firoz Khan, having Rs 4 crore of work done; Nitesh Sarda, having Rs 55 lakh of work done. The wife stated that her husband had continuously informed her for the last one or two years that he was under immense pressure. Consequently, she lodged a lawful complaint against Arnab Goswami, Firoz Khan and Nitesh Sarda, whose names appeared in the suicide note, alleging that despite repeated demands the amounts remained unpaid, leading to her husband’s mental pressure and subsequent suicide. Police Inspector Shri Warade is investigating the offence., The FIR records state: (i) the appellant, who owns the company ARG, had not paid an amount of Rs 83 lakh for the Bombay Dyeing Studio project; in addition there was an outstanding amount of Rs 4 crore from Firoz Khan and Rs 55 lakh from Nitesh Sarda (who are the appellants in the connected criminal appeals); (ii) the spouse of the informant had not received payment for the work carried out by her husband, resulting in mental pressure and his suicide by hanging on 5 May 2018; (iii) a suicide note holding the above three individuals responsible; and (iv) the informant was informed on 5 May 2018, while she and her daughter were at their residence in Mumbai, that her mother‑in‑law Kumud Naik had died at their Alibaug residence, and that her husband had committed suicide., On 6 May 2018, officers from Alibaug Police Station visited ARG’s office in Mumbai and served three notices under Section 91 of the Code of Criminal Procedure. On 7 and 8 May 2018, two representatives of ARG visited Alibaug Police Station where they claim to have handed over the information sought by the police in their notices under Section 91. On 22 May 2018, the appellant submitted a representation to the notice under Section 91, following which on 30 May 2018 and 28 June 2018, the statements of the Chief Financial Officer and Company Secretary of ARG were recorded., On 16 April 2019, the Station House Officer at Alibaug Police Station filed a report in the Court of the Chief Judicial Magistrate for an A summary. The Chief Judicial Magistrate passed an order accepting the report and granting an A summary. An A summary indicates a case where an offence has been committed but is undetected, with no clue about the culprits or property, or where the accused is known but there is no evidence to justify sending the case to the magistrate for trial. Paragraph 219(3) of the Bombay Police Manual, 1959, defines the requirements for an A summary, including classification of the case as ‘A – True undetected’, ‘B – Maliciously false’, or ‘C – Neither true nor false’, and notes that the investigation reveals commission of only a non‑cognizable offence., Following the A summary, there was an exchange of correspondence between ARG and the informant. ARG, by its letter dated 11 June 2019 addressed to CDPL, the informant and her daughter, indicated that several meetings had been held in the past during the course of which ARG had sought indemnities from CDPL against any future claims. In its letter, ARG stated that it would be transferring a sum of Rs 39.01 lakh into CDPL’s last known bank account as indemnity for future claims by the creditors or lenders of CDPL. In response, on 15 June 2019, the informant communicated that out of a total billed amount of Rs 6.45 crore, an amount of Rs 5.75 crore had been received from ARG, and after adjustment of Rs 70.39 lakh towards deductions, an amount of Rs 88.02 lakh was due and payable. On 6 November 2019, ARG addressed another letter to the informant recording the closure of the police investigation and reiterating its readiness to pay an amount of Rs 39.01 lakh subject to due authorisation. The matter rested until developments in April 2020., During the present proceedings, the appellant has adverted to proceedings initiated against him previously by the State of Maharashtra, to support his case that the arrest is vitiated by malice in fact. On 16 April 2020, a broadcast took place on Republic TV, followed by a broadcast on Republic Bharat on 21 April 2020, concerning an incident in Gadchinchle village of Palghar district, Maharashtra, where three persons, including two sadhus, were brutally killed by a mob, allegedly in the presence of police and forest guard personnel. The appellant, on his news show titled ‘Poochta Hai Bharat’ on 21 April 2020, raised issues regarding the allegedly tardy investigation of the incident by the police., As noted by this Court in a judgment dated 19 May 2020, the broadcasts led to the lodging of multiple First Information Reports and criminal complaints against the appellant in the states of Maharashtra, Chhattisgarh, Rajasthan, Madhya Pradesh, Telangana and Jharkhand, as well as in the Union Territories of Jammu and Kashmir. The content of the FIRs was similar, almost identical. In Maharashtra, an FIR was lodged at Police Station Sadar, District Nagpur City: ‘Maharashtra FIR No. 238 of 2020, dated 22 April 2020, registered at Police Station Sadar, District Nagpur City, under Sections 153, 153‑A, 153‑B, 295‑A, 298, 500, 504(2), 506, 120‑B and 117 of the Indian Penal Code.’ Apart from this FIR, fourteen other FIRs and complaints were lodged against the appellant in relation to his broadcasts., The appellant moved this Court in proceedings under Article 32 of the Constitution challenging the registration of these FIRs. By an interim order dated 24 April 2020, the FIR lodged at Police Station Sadar, District Nagpur City was transferred to N. M. Joshi Marg Police Station, Mumbai and renumbered as FIR 164 of 2020. Another FIR, FIR 137 of 2020, was registered against the appellant on 2 May 2020 at the Pydhonie Police Station, Mumbai, arising from a telecast on 29 April 2020 in which the appellant referred to a gathering of migrant workers at Bandra Railway station during the COVID‑19 pandemic and attempted to connect a place of religious worship with this gathering. The appellant filed another petition under Article 32 challenging the registration of FIR 137 of 2020., By its judgment dated 19 May 2020, this Court quashed all the FIRs except for the FIR transferred from Nagpur to Mumbai, on the ground that successive FIRs/complaints in respect of the same cause could not be maintained. The Court granted liberty to the appellant to pursue such remedies as were available in law before the competent forum for quashing FIR 164 of 2020., By an order dated 30 June 2020, a Division Bench of the Bombay High Court, while entertaining a petition under Articles 226/227 of the Constitution and Section 482 of the Code of Criminal Procedure, suspended all further proceedings in FIR 164 of 2020 before N. M. Joshi Marg Police Station and FIR 137 of 2020 before Pydhonie Police Station and confirmed its interim order dated 6 June 2020 restraining the State from taking coercive steps against the appellant in relation to the two FIRs, pending disposal of the petition., Aside from this incident, the appellant has relied on certain other developments which have taken place thereafter: (i) the arrest on 9 September 2020 by the Maharashtra Police of two employees of the appellant’s news channel alleged to be pursuing an investigative lead in Raigad, Maharashtra, and the registration of FIR 142 of 2020 at Khalapur Police Station, Raigad under Sections 452, 448, 323, 504 and 506 read with Section 34 of the Indian Penal Code; (ii) the issuance of a letter by the Shiv Sena to cable operators across Maharashtra asking them to ban the telecast of the appellant’s news channel; (iii) an order of the Bombay High Court dated 11 September 2020 in a writ petition under Article 226 holding that the letter of the Shiv Sena did not have the force of law and the appellant would be at liberty to pursue the remedies available in law; (iv) on 16 September 2020, a notice to show cause was issued to the appellant for breach of privilege of the legislative assembly, which is the subject of proceedings instituted in this court; (v) a notice to show cause was issued under Section 108(1) of the Code of Criminal Procedure to the appellant by the Special Executive Magistrate, in spite of the order of the Bombay High Court; (vi) the registration of FIR 843 of 2020 on 6 October 2020 at Kandivali Police Station (later transferred to the Crime Intelligence Unit, Mumbai) on a complaint by an employee of Hansa Research Group Private Limited in relation to the TRP scam; (vii) a press conference by the Commissioner of Police, Mumbai on 8 October 2020 mentioning the name of the appellant as allegedly involved in the TRP scam; (viii) the appellant instituted a writ petition under Article 32 of the Constitution before this Court seeking reliefs in respect of FIR 843 of 2020. By an order dated 15 October 2020, the writ petition was dismissed as withdrawn with liberty to the appellant to approach the Bombay High Court; and (ix) the appellant filed Writ Petition (Criminal) No. 3143 of 2020 before the Bombay High Court, in which on 19 October 2020 an order was passed calling upon the investigating officer to submit the investigation paper in a sealed envelope on 4 November 2020. The High Court noted that the appellant had, as of that date, not been arraigned as an accused in the FIR and, if the investigating officer proposed to make an enquiry, a summons shall be issued to him. The appellant agreed to cooperate in the enquiry., On 26 May 2020, the Home Department of the State of Maharashtra addressed a communication to the Deputy Inspector General of Police stating that the First Information Report registered as Crime No. 59 of 2020 at Alibaug Police Station under Sections 306/34 of the Indian Penal Code was being transferred to the Crime Investigation Department for reinvestigation. The letter read: ‘In respect of the above‑mentioned subject, you are hereby informed that Crime No. 59/2020 registered at Alibaug Police Station under Section 306/34 and Crime No. 114 of 2018 registered at Alibaug Police Station under Section 302 are being transferred to the Crime Investigation Department for the purposes of reinvestigation. Hence, you are requested to undertake the necessary steps for handing over the case for reinvestigation and report in respect of investigation already made be submitted to the Government.’, On 15 October 2020, the Local Crime Investigation Branch, Raigad addressed a communication to the Chief Judicial Magistrate, Alibaug, recording the commencement of further investigation under Section 173(8) of the Code of Criminal Procedure in respect of Crime No. 59 of 2018 under Section 306 read with Section 34 of the Indian Penal Code., On 4 November 2020, the appellant was arrested at about 7:45 am in connection with First Information Report 59 of 2018 dated 5 May 2018. At 2:37 pm, the appellant filed a writ petition before the Bombay High Court, invoking the provisions of Articles 226/227 of the Constitution and Section 482 of the Code of Criminal Procedure., After the appellant’s arrest, a remand application was filed before the Chief Judicial Magistrate, Raigad. By an order dated 4 November 2020, the Chief Judicial Magistrate declined to grant police custody. Noting that there had been an A summary previously, the magistrate, while rejecting the plea for police custody, remanded the appellant to judicial custody till 18 November 2020. The State has challenged the magistrate’s order declining police custody in a revision before the Additional Sessions Judge, Raigad., The writ petition filed by the appellant before the Bombay High Court was heard on 5, 6 and 7 November 2020. On 7 November 2020, the High Court reserved orders and granted liberty to the appellant to file an application for regular bail under Section 439 of the Code of Criminal Procedure with a direction that it should be heard expeditiously within four days of the date of filing. Following the direction, the appellant moved the Sessions Court, Raigad for bail under Section 439 of the Code of Criminal Procedure. By its impugned judgment and order dated 9 November 2020, the High Court posted the hearing of the petition filed by the appellant regarding the prayer of quashing of the First Information Report on 10 December 2020. While doing so, the High Court denied bail to the appellant on the ground that no case had been made out for the exercise of the extraordinary jurisdiction and that the appellant had an alternate and efficacious remedy under Section 439 of the Code of Criminal Procedure., Mr. Harish N. Salve, learned Senior Counsel, assailed the order of the Bombay High Court denying bail to the appellant, submitting that (i) the arrest of the appellant is rooted in malice in fact, evident from the manner in which the appellant, as editor‑in‑chief of Republic TV and R Bharat, has been targeted for his news broadcasts criticizing the Maharashtra government and the Maharashtra police; (ii) following the acceptance of the police report and the issuance of an A summary on 16 April 2019, the reinvestigation ordered at the behest of the Home Minister of the State of Maharashtra is ultra vires, and in the absence of specific permission of the Chief Judicial Magistrate, it was not open to the State to conduct a reinvestigation; and (iii) the allegations contained in the First Information Report, read as they stand, do not establish an offence under Section 306 read with Section 34 of the Indian Penal Code. To constitute the offence of abetment, there must exist (a) a direct or indirect incitement to the commission of a crime; (b) an active role of the accused in instigating or doing an act facilitating the commission of the crime; and (c) the existence of a proximate relationship in time. In the present case, even if the allegations in the First Information Report are accepted, no case of abetment is established. It was submitted that the appellant’s company (ARG) had entrusted a contract for interior work to the deceased’s company (CDPL). While an amount of Rs 5.45 crore has been paid, a commercial dispute remained regarding the remaining payment. The FIR also reveals that the deceased was suffering from mental pressure. There is absolutely no allegation that the appellant instigated or facilitated the commission of the crime., Mr. Salve further submitted that the judgment of the Supreme Court of India in Habib Jeelani has been wrongly interpreted by the High Court. He stated that it was in pursuance of the liberty granted by the High Court that an application for bail under Section 439 of the Code of Criminal Procedure was filed. However, even on 9 November 2020, the Public Prosecutor filed a note before the Sessions Judge that the revision application filed by the State against the magistrate’s order should be heard first and only thereafter should the application for bail be taken up.
id_51	1	On the basis of the above submissions, it has been urged that the appellant has been made a target of the vendetta of the State government, which emerges from the successive events advertised to above which have taken place since April 2020. Hence, it has been urged that there is absolutely no ground to continue the arrest of the appellant and absent any reasonable basis for depriving him of his liberty, an order for the grant of bail should have been passed by the Bombay High Court. Mr. Salve finally submitted that the interest in preserving the procedural hierarchy of courts must give way to the need to protect the appellant's personal liberty given the well settled legal position that the default rule is bail, not jail., Opposing the above submissions, Mr Amit Desai, learned Senior Counsel appearing on behalf of the second respondent submits that the Bombay High Court has advisably not enquired into whether: i. The investigation is tainted by mala fides; and ii. The contents of the FIR as they stand make out an offence within the meaning of Section 306 read with Section 34 of the Indian Penal Code. The Bombay High Court declined to express a prima facie view on the issue of mala fides since an opportunity was being granted to the State to file its counter. Similarly, the issue as to whether the FIR is liable to be quashed would be taken up at the final hearing on 10 December 2020 and hence the Bombay High Court has correctly refrained from expressing a prima facie view; between 15 October 2020 and 4 November 2020, a further investigation has been carried out and statements have been recorded under Section 164 of the Code of Criminal Procedure; in accordance with the Supreme Court of India's judgment in the case of Praveen Pradhan vs State of Uttaranchal and Ors., instigation to commit suicide has to be gathered from the circumstances of a particular case. Hence, while there may not be direct evidence in regard to instigation which may have direct nexus to suicide, an inference has to be drawn from the circumstances to determine whether they were of a nature which created a situation in which a person felt totally frustrated and ended up committing suicide. Further, while making a determination as to the quashing of proceedings, the Court has to form only a tentative opinion and not a firm view; a hierarchy of courts is provided for to consider an application for bail under Section 439 of the Code of Criminal Procedure. In the present case, there is no valid basis to bypass that hierarchy in order to grant relief to the appellant; an application for bail was initially filed on behalf of the appellant which was withdrawn after the order for judicial custody was passed. An application for bail has been filed after the Bombay High Court while reserving judgment granted liberty to do so with a direction for its disposal within four days. Hence, it is appropriate that the appellant is relegated to pursue the remedies under Section 439; prayer (a) in the writ petition for the grant of a writ of Habeas Corpus was not maintainable in view of the fact that the appellant had been arrested and committed to judicial custody, and the interim application for his release on bail was only in the context of the prayer for Habeas Corpus; during the course of the hearing of the proceedings before the Bombay High Court, the Division Bench indicated that if the appellant were to file an application under Section 439, appropriate administrative directions of the Chief Justice could be obtained for listing it before the Division Bench since applications for bail are placed for hearing before a Single Judge (while the petition was before a Division Bench) and the appellant had only filed an interim application in the pending writ petition for being released on bail; both the issue of whether the appellant has made out a case for quashing the FIR and whether a reinvestigation could have been ordered at the Home Department of the State would be considered by the Bombay High Court on 10 December 2020; the Bombay High Court has drawn a balance between the rights of the accused and the family of the deceased victim. A substantive writ petition has been filed by the informant, stating that it was only through a tweet on the social media that she had learned of the A summary and that she had not been heard before the order was passed by the Magistrate accepting the police report; even when an A summary has been accepted in terms of Paragraph 219(3) of the Bombay Police Manual, there is no restraint on a further investigation being carried out by the Investigating Officer under Section 173(8) of the Code of Criminal Procedure. An A summary postulates that there was no completed investigation. Hence, requiring prior judicial sanction as a precondition for conducting further investigation after the filing of an A summary will impede the ability of investigating authorities to effectively perform their role. Such a course of action is also permissible in view of the decision of the Supreme Court of India in Vinubhai Haribhai Malaviya vs State of Gujarat; the Bombay High Court was justified in coming to the conclusion that there was nothing extraordinary in the facts of the present case to shock the conscience of the Court so as to take recourse to its extraordinary jurisdiction under Article 226 to direct the release of the appellant on interim bail. Any other view would lead to the jurisdiction of the Bombay High Court under Article 226 being extended to grant the remedy of an application for bail, which is already available under Section 439 of the Code of Criminal Procedure., In the same vein as the submissions which have been urged on behalf of the second respondent by Mr Amit Desai, Mr Kapil Sibal, learned Senior Counsel appearing on behalf of the first respondent, has submitted that the Bombay High Court has been justified in coming to the conclusion that there was no warrant to interfere in the course of the investigation in the present case. Mr Sibal also argued that Mr Salve has wrongly focused on other cases implicating the appellant in the course of his arguments. Learned Senior Counsel has urged that the appellant must pursue his remedy in accordance with law under Section 439 of the Code of Criminal Procedure for which the liberty has been granted by the Bombay High Court. Further, Mr Sibal submitted that an A summary is in fact not a closure report and investigation does not stand concluded. Hence, he submitted that the Investigating Officer was within jurisdiction in carrying out further investigation. Finally, Mr Sibal argued that while he is alive to the fact that the personal liberty of the appellant is at stake in the present case, this Supreme Court of India does refuse to interfere in many cases exhibiting similar features. Therefore, he argued that this Supreme Court of India should stay its hand in the present case., Mr C.U. Singh, learned Senior Counsel appearing on behalf of the fifth respondent, the informant, has joined the submissions of the first and second respondents in opposing these appeals. It was submitted that: after the order of judicial remand on 4 November 2020, an application for bail was filed on behalf of the appellant and withdrawn; on 7 November 2020, the Sessions Court issued a notice on the revision application filed by the State against the order declining to grant remand to police custody; on 7 November 2020, the Bombay High Court posted the proceedings for pronouncement of judgment on 9 November 2020 and granted liberty to the appellant to file an application for bail. Thereafter, an application for bail was filed on 8 November 2020 by the appellant. A Special Leave Petition was filed in the Supreme Court of India thereafter. The Bombay High Court has correctly declined to enquire into the plea for quashing the FIR and the alleged mala fides on the ground that counters are still to be filed; on 15 October 2020, the Crime Detection Unit intimated the Chief Judicial Magistrate that it was commencing further investigation on which the CJM has made an endorsement that it had been noted and filed. Statements were recorded under Section 164 of the Code of Criminal Procedure. Section 173(8) of the Code of Criminal Procedure confers a broad power of further investigation on the Investigating Officer. Having regard to the context of an A summary, this power has been legitimately exercised in the present case. The exercise of the power of further investigation under Section 173(8) of the Code of Criminal Procedure would not require judicial sanction., Together with the present Civil Appeal, this Supreme Court of India has also heard submissions in two companion Civil Appeals. In the two companion appeals, submissions have been made before this Court by Mr Gopal Sankaranarayanan and Mr Mukul Rohatgi, learned Senior Counsel. Criminal Appeal No. 743 of 2020 (Arising out of Special Leave Petition (Criminal) No. 5599 of 2020). Mr Gopal Sankaranarayanan, learned Senior Counsel, submitted that the appeal has been filed by the sister of Mr Feroz Shaikh who has been named as an accused. Mr Feroz Shaikh is a Director in iCastX Technologies Private Limited. In 2016, iCastX Technologies hired the services of M/s Atos India Private Limited for the work of construction, renovation and refurbishing of their office premises at Andheri East, Mumbai. Atos India Private Limited in turn sub‑contracted the work to CDPL. Hence, it has been submitted that there was privity of relationship between iCastX Technologies and CDPL. Mr Sankaranarayanan submitted that the three appellants represent the interest of three distinct individuals connected with three different companies. Mr Sankaranarayanan has supported the submissions on the essential requirements of Section 107 of the Indian Penal Code by relying on the decisions in Madan Mohan Singh vs State of Gujarat, Sunil Bharti Mittal vs Central Bureau of Investigation and Common Cause vs Union of India. Mr Sankaranarayanan further argued that there was no reference about his client in the FIR filed on 5 May 2018 at the behest of the informant. Finally, he relied on this Supreme Court of India's judgment in Vineet Narain and Ors. vs Union of India and Ors. to urge that executive interference in the course of an investigation or prosecution is impermissible., Criminal Appeal No. 744 of 2020 (Arising out of Special Leave Petition (Criminal) No. 5600 of 2020). Mr Mukul Rohatgi, learned Senior Counsel appearing on behalf of the appellant, submitted that admittedly all the three accused named in the FIR are unconnected. The appellant is a Director in a private limited company by the name of SmartWork Business Centre Private Limited with less than one per cent of the shareholding standing in his own name. The company which has offices in New Delhi and Kolkata had engaged the services of several vendors/contractors in order to furnish their business centre at Pune, one of whom was CDPL and a purchase order of Rs 4.17 crores was issued. Thereafter, there were substantial delays and discrepancies in the execution of the work by CDPL which led to an exchange of mails. Furthermore, an invoice of over Rs 5 crores was raised including an amount of Rs 83.02 lakhs towards GST. Pursuant to this, a payment of Rs 4.40 crores was made but there was a genuine commercial dispute between the two companies in relation to the remaining amount. It has been submitted that on the face of it, there is no basis in the FIR to even remotely implicate the appellant in the alleged offences under Section 306 read with Section 34 of the Indian Penal Code. There is not even an indication of a personal interaction or connection between the appellant and the deceased. Furthermore, a civil suit regarding the disputed debt between their companies is pending., The invocation of the jurisdiction of the Bombay High Court under Articles 226/227 of the Constitution and Section 482 of the Code of Criminal Procedure is in support of two distinct reliefs. The first relief is for a writ of habeas corpus. This relief has been claimed on the basis that the arrest and consequent detention of the appellant was due to a reinvestigation which was commenced after placing reliance on the letter dated 26 May 2020 of the Home Department of the Government of Maharashtra to the Director General of Police. The submission is that once the Chief Judicial Magistrate accepted the report submitted by the Investigating Officer and issued an A summary on 16 April 2019, it was not open to the Investigating Officer to commence a reinvestigation without judicial sanction. Joining issue with this submission is the argument of the State that the power of the investigating officer to order a further investigation under Section 173(8) of the Code of Criminal Procedure is independent of the jurisdiction of the Magistrate. In the view of the State, Section 4 of the Bombay Police Act, 1951 entrusts the superintendence of the police force to it and in the exercise of that power, it was legitimately open to the Home Department to direct a further investigation (though the letter uses the expression re‑investigation) to be conducted based on the complaint of the victim that the offence had not been properly investigated. Moreover, the State has relied on the provisions of Section 36 of the Code of Criminal Procedure under which police officers superior in rank to an officer in charge of a police station are entitled to exercise the same powers throughout the local area to which they are appointed., According to the appellant, when proceedings before the Bombay High Court came to be instituted, an order of remand had not been passed and it was only subsequently on the night of 4 November 2020 that an order granting judicial custody was passed by the Chief Judicial Magistrate. Be that as it may, the Bombay High Court has recorded that prayer (a) for the issuance of a writ of Habeas Corpus was not pressed on behalf of the appellant. Once the prayer for a writ of habeas corpus was not pressed (as the Bombay High Court records), it was unnecessary for the Bombay High Court to devote several pages in the impugned judgment on discussing the issue. The remaining prayer before the Bombay High Court was for quashing the FIR. Mr Rohatgi submitted that the order of arrest is illegal and the appellant is entitled to have it so declared by invoking the jurisdiction under Article 226 of the Constitution and Section 482 of the Code of Criminal Procedure. It was urged that the power under Section 173(8) is to cause a further investigation and no power has been vested to either reinvestigate or cause a fresh investigation to be made. The power to reinvestigate or to cause fresh investigation, it was urged, is vested only in the constitutional courts. Contrary to the provisions of Section 173(8), it was urged, the Home Department in its letter to the deputy Inspector General has directed a reinvestigation. In the present case, the communication of the Home Department makes it abundantly clear that a reinvestigation was ordered under the authority of the State Home Minister which, according to the submission, is ultra vires the provisions of law. Mr Rohatgi has emphasised that the application for remand makes it clear that what is ordered was a reinvestigation, since the application has repeatedly used the expression comprehensive reinvestigation and the fact that reinvestigation has become necessary., Finally, it was urged that the order of the Home Minister in the State was issued on 26 May 2020 whereas the investigation commenced on 15 October 2020 and the arrest was made on 4 November 2020 in respect of an FIR lodged in May 2018 on which an A summary had been accepted on 16 April 2019. In sum and substance, it has been submitted that after the order of closure on 16 April 2019, a reinvestigation could not have been ordered in the case. The arrest has been termed unlawful., Jurisdiction of the Bombay High Court under Article 226 and Section 482 of the Code of Criminal Procedure. While considering the rival submissions, it is essential for the purpose of the present appeals to elucidate on the nature of the jurisdiction that is vested in the Bombay High Court under Article 226 of the Constitution and Section 482 of the Code of Criminal Procedure. This issue must be analysed from the perspective of the position that the proceeding before the Bombay High Court, after the prayer for the grant of a writ of Habeas Corpus was given up, is for quashing the FIR being CR No. 0059 of 2018 lodged on 5 May 2018. The Bombay High Court has dwelt at length on the decision of this Supreme Court of India in Habib Jeelani (supra). The Bombay High Court observed that the powers to quash are to be exercised sparingly and that too, in rare and appropriate cases and in extreme circumstances to prevent abuse of process of law. Applying this principle, the Bombay High Court opined: The principle stated therein will equally apply to the exercise of this Supreme Court of India's power under Article 226 of the Constitution of India and section 482 of the Code of Criminal Procedure while considering the applications for bail since the petitioner is already in judicial custody. The legislature has provided specific remedy under Section 439 of the Code of Criminal Procedure for applying for regular bail. Having regard to the alternate and efficacious remedy available to the petitioner under section 439 of the Code of Criminal Procedure, this Supreme Court of India has to exercise judicial restraint while entertaining application in the nature of seeking regular bail in a petition filed under Article 226 of the Constitution of India read with section 482 of the Code of Criminal Procedure. On the basis of the above foundation, the Bombay High Court has declined to even prima facie enquire into whether the allegations contained in the FIR, read as they stand, attract the provisions of Section 306 read with Section 34 of the Indian Penal Code. In its view, since the petition was being posted for hearing on 10 December 2020, it was not inclined to enquire into this aspect of the case and the appellant would be at liberty to apply for regular bail under Section 439., Now, it is in this background that it becomes necessary for this Supreme Court of India to evaluate what, as a matter of principle, is the true import of the decision of this Supreme Court of India in Habib Jeelani (supra). This was a case where, on the basis of a report under Section 154 of the Code of Criminal Procedure, an FIR was registered for offences punishable under Sections 147, 148, 149 and 307 of the Indian Penal Code. Challenging the initiation of the criminal action, the inherent jurisdiction of the High Court to quash an FIR was invoked. The Bombay High Court (as paragraph 2 of the judgment of this Supreme Court of India in Habib Jeelani (supra) indicates) expressed its disinclination to interfere on the ground that it was not appropriate to stay the investigation of the case. It was in this background that the following issue was formulated in the first paragraph of the judgment of this Supreme Court of India, speaking through Justice Dipak Misra (as he then was), for consideration: The seminal issue that arises for consideration in this appeal, by special leave, is whether the High Court while refusing to exercise inherent powers under Section 482 of the Code of Criminal Procedure to interfere in an application for quashment of the investigation, can restrain the investigating agency not to arrest the accused persons during the course of investigation. Between paragraphs 11 and 15, this Supreme Court of India then evaluated the nature of the jurisdiction under Section 482 of the Code of Criminal Procedure or under Article 226 of the Constitution for quashing an FIR and observed: Once an FIR is registered, the accused persons can always approach the High Court under Section 482 of the Code of Criminal Procedure or under Article 226 of the Constitution for quashing of the FIR. In Bhajan Lal (State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426 : AIR 1992 SC 604) the two Judge Bench after referring to Hazari Lal Gupta v. Rameshwar Prasad (1972) 1 SCC 452, Jehan Singh v. Delhi Administration (1974) 4 SCC 522, Amar Nath v. State of Haryana (1977) 4 SCC 137, Kurukshetra University v. State of Haryana (1977) 4 SCC 451, State of Bihar v. J.A.C. Saldanha (1980) 1 SCC 554, State of West Bengal v. Swapan Kumar Guha (1982) 1 SCC 561, Nagawwa v. Veeranna Shivalingappa Konjalgi (1976) 3 SCC 736, Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre (1988) 1 SCC 692, State of Bihar v. Murad Ali Khan (1988) 4 SCC 655 and some other authorities that had dealt with the contours of exercise of inherent powers of the High Court, thought it appropriate to mention certain category of cases by way of illustration wherein the extraordinary power under Article 226 of the Constitution or inherent power under Section 482 of the Code of Criminal Procedure could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice. The Court also observed that it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad cases wherein such power should be exercised. The illustrations given by the Court need to be recapitulated: (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code of Criminal Procedure except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non‑cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fides and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. It is worthy to note that the Court has clarified that the said parameters or guidelines are not exhaustive but only illustrative. Nevertheless, it throws light on the circumstances and situations where the Court's inherent power can be exercised., There can be no dispute over the proposition that inherent power in a matter of quashment of FIR has to be exercised sparingly and with caution and when and only when such exercise is justified by the test specifically laid down in the provision itself. There is no denial of the fact that the power under Section 482 of the Code of Criminal Procedure is very wide but it needs no special emphasis to state that conferment of wide power requires the Court to be more cautious. It casts an onerous and more diligent duty on the Court. In this regard, it would be seemly to reproduce a passage from Kurukshetra University wherein Justice Chandrachud, as his Lordship then was, opined thus: It surprises us in the extreme that the High Court thought that in the exercise of its inherent powers under Section 482 of the Code of Criminal Procedure, it could quash a first information report. The police had not even commenced investigation into the complaint filed by the Warden of the University and no proceeding at all was pending in any court in pursuance of the FIR. It ought to be realised that inherent powers do not confer an arbitrary jurisdiction on the High Court to act according to whim or caprice. That statutory power has to be exercised sparingly, with circumspection and in the rarest of rare cases. We have referred to the said decisions only to stress upon the issue, how the exercise of jurisdiction by the High Court in a proceeding relating to quashment of FIR can be justified. We repeat even at the cost of repetition that the said power has to be exercised in a very sparing manner and is not to be used to choke or smother the prosecution that is legitimate. The surprise that was expressed almost four decades ago in Kurukshetra University case compels us to observe that we are also surprised by the impugned order., Thereafter, this Supreme Court of India noted that the Bombay High Court has not referred to allegations made in the FIR or what has come out in the investigation. While on the one hand, the Bombay High Court declined in exercising its jurisdiction under Section 482 to quash the proceedings, it nonetheless directed the police not to arrest the appellants during the pendency of the investigation. It was in this context that this Supreme Court of India observed that the Bombay High Court, while dismissing the applications under Section 482, passed orders that if the accused surrenders before the trial Magistrate, he shall be admitted to bail on such terms and conditions as it was deemed fit and appropriate. After adverting to the earlier decision in Hema Mishra vs State of Uttar Pradesh, this Supreme Court of India observed: We have referred to the authority in Hema Mishra (Hema Mishra v. State of U.P., 2014) as that specifically deals with the case that came from the State of Uttar Pradesh where Section 438 of the Code of Criminal Procedure has been deleted. It has concurred with the view expressed in Lal Kamlendra Pratap Singh (Lal Kamlendra Pratap Singh v. State of U.P., 2009). The said decision, needless to say, has to be read in the context of the State of Uttar Pradesh. We do not intend to elaborate the said principle as that is not necessary in this case. What needs to be stated here is that the States where Section 438 of the Code of Criminal Procedure has not been deleted and kept on the statute book, the High Court should be well advised that while entertaining petitions under Article 226 of the Constitution or Section 482 of the Code of Criminal Procedure, it exercises judicial restraint. We may hasten to clarify that the Court, if it thinks fit, regard being had to the parameters of quashing and the self‑restraint imposed by law, has the jurisdiction to quash the investigation and may pass appropriate interim orders as though appropriate in law, but it is absolutely inconceivable and unthinkable to pass an order of the present nature while declining to interfere or expressing opinion that it is not appropriate to stay the investigation. This kind of order is really inappropriate and unseemly. It has no sanction in law.
id_51	2	Supreme Court of India should oust and obstruct unscrupulous litigants from invoking the inherent jurisdiction of the Supreme Court of India on the drop of a hat to file an application for quashing of launching an FIR or investigation and then seek relief by an interim order. It is the obligation of the Supreme Court of India to keep such unprincipled and unethical litigants at bay., The above decision thus arose in a situation where the High Court had declined to entertain a petition for quashing an FIR under Section 482 of the Criminal Procedure Code. However, it nonetheless directed the investigating agency not to arrest the accused during the pendency of the investigation. This was held to be impermissible by the Supreme Court of India. On the other hand, the Supreme Court of India clarified that the High Court, if it thinks fit, having regard to the parameters for quashing and the self‑restraint imposed by law, has the jurisdiction to quash the investigation and may pass appropriate interim orders as thought apposite in law. Clearly therefore, the High Court in the present case misdirected itself in declining to enquire prima facie on a petition for quashing whether the parameters in the exercise of that jurisdiction have been duly established and, if so, whether a case for the grant of interim bail has been made out., The settled principles consistently reiterated since the judgment of the Supreme Court of India in State of Haryana v. Bhajan Lal include a situation where the allegations made in the FIR or the complaint, even if taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out a case against the accused. This legal position was recently reiterated in a decision by a two‑judge Bench of the Supreme Court of India in Kamal Shivaji Pokarnekar v. State of Maharashtra., The striking aspect of the impugned judgment of the High Court spanning over fifty‑six pages is the absence of any evaluation even prima facie of the most basic issue. The High Court, in other words, failed to apply its mind to a fundamental issue which needed to be considered while dealing with a petition for quashing under Article 226 of the Constitution or Section 482 of the Criminal Procedure Code. By its judgment dated 9 November 2020, the High Court allowed the petition for quashing to stand over for hearing a month later, and therefore declined to allow the appellant’s prayer for interim bail and relegated him to the remedy under Section 439 of the Criminal Procedure Code. In the meantime, liberty has been the casualty., Before evaluating the contents of the FIR, a reference to Section 306 of the Indian Penal Code is necessary. Section 306 stipulates that if a person commits suicide, whoever abets the commission of such suicide shall be punished with imprisonment extending up to ten years. Section 107, comprised within Chapter V of the Indian Penal Code titled ‘Of Abetment’, provides: ‘Abetment of a thing. A person abets the doing of a thing who (i) instigates any person to do that thing; or (ii) engages with one or more other persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or (iii) intentionally aids, by any act or illegal omission, the doing of that thing.’, These provisions have been construed specifically in the context of Section 306 to furnish the legal foundation for assessing the contents of the FIR. They have been construed in earlier judgments of the Supreme Court of India in State of West Bengal v. Orilal Jaiswal, Randhir Singh v. State of Punjab, Kishori Lal v. State of Madhya Pradesh and Kishangiri Mangalgiri Goswami v. State of Gujarat. In Amalendu Pal v. State of West Bengal, Justice Mukundakam Sharma, speaking for a two‑judge Bench of the Supreme Court of India, observed: ‘It is also to be borne in mind that in cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. Merely on the allegation of harassment without any positive action proximate to the time of occurrence on the part of the accused which led or compelled the person to commit suicide, conviction under Section 306 IPC is not sustainable.’, The Court noted that before a person may be said to have abetted the commission of suicide, they must have played an active role by an act of instigation or by doing a certain act to facilitate the commission of suicide. Instigation, as held in Kishori Lal, literally means to provoke, incite, urge on or bring about by persuasion to do anything., In S S Chheena v. Vijay Kumar Mahajan, a two‑judge Bench of the Supreme Court of India, speaking through Justice Dalveer Bhandari, observed: ‘Abetment involves a mental process of instigating a person or intentionally aiding a person in doing a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. The intention of the legislature and the ratio of the cases decided by this Court is clear that, to convict a person under Section 306 IPC, there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option, and that act must have been intended to push the deceased into such a position that he committed suicide.’, Madan Mohan Singh v. State of Gujarat was a case arising from a petition under Section 482 of the Criminal Procedure Code where the High Court had dismissed the petition for quashing an FIR registered for offences under Sections 306 and 294(b) of the Indian Penal Code. The FIR was based on a complaint of the spouse of the deceased driver who had committed suicide. The suicide note indicated that the driver had not been given a fixed vehicle, had complaints about deduction of fifteen days’ wages, and named the accused appellant. The two‑judge Bench of the Supreme Court of India, delivering the judgment, applied the test laid down in Bhajan Lal and held that there was absolutely nothing in the suicide note or the FIR that could be viewed as an offence under Section 306 IPC. The Court emphasized that for an offence under Section 306 IPC, specific abetment as contemplated by Section 107 IPC with an intention to bring about the suicide is required, and found no material for such offence in the FIR or the suicide note. Consequently, the petition under Section 482 was allowed and the FIR was quashed., In a concurring judgment delivered by Justice Dhananjaya Y. Chandrachud in the Constitution Bench decision in Common Cause, the provisions of Section 107 were explained: ‘For abetting an offence, the person abetting must have intentionally aided the commission of the crime. Abetment requires an instigation to commit or intentionally aiding the commission of a crime. It presupposes a course of conduct which facilitates another to end life. Hence abetment of suicide is an offence expressly punishable under Sections 305 and 306 of the Indian Penal Code.’, More recently, in M. Arjunan v. State (represented by its Inspector of Police), a two‑judge Bench of the Supreme Court of India, speaking through Justice R. Banumathi, elucidated the essential ingredients of the offence under Section 306 of the Indian Penal Code: ‘The essential ingredients are (i) the abetment; and (ii) the intention of the accused to aid, instigate or abet the deceased to commit suicide. The act of the accused insulting the deceased by using abusive language will not, by itself, constitute abetment of suicide. There must be evidence suggesting that the accused intended by such act to instigate the deceased to commit suicide.’, Similarly, in Ude Singh and Others v. State of Haryana, a two‑judge Bench of the Supreme Court of India, speaking through Justice Dinesh Maheshwari, expounded on the ingredients of Section 306 of the Indian Penal Code and the factors to be considered: ‘In cases of alleged abetment of suicide, there must be proof of direct or indirect acts of incitement to the commission of suicide. Mere allegation of harassment without a proximate action by the accused that compels the person to commit suicide is insufficient. The Court looks for cogent and convincing proof of incitement, and the act must be proximate to the time of occurrence.’, In Rajesh v. State of Haryana, Justice L. Nageswara Rao held: ‘Conviction under Section 306 IPC is not sustainable on the allegation of harassment without any positive action proximate to the time of occurrence on the part of the accused which led or compelled the person to commit suicide. To bring a case within the purview of Section 306 IPC, the accused must have played an active role by an act of instigation or by doing a certain act to facilitate the commission of suicide, and such act must be proved by the prosecution.’, In Gurcharan Singh v. State of Punjab, a three‑judge Bench of the Supreme Court of India, speaking through Justice Hrishikesh Roy, held: ‘As in all crimes, mens rea has to be established. To prove the offence of abetment under Section 107 of the Indian Penal Code, the state of mind to commit a particular crime must be visible. There must be something on record to establish that the appellant had a guilty mind and, in furtherance of that state of mind, abetted the suicide of the deceased.’, In Vaijnath Kondiba Khandke v. State of Maharashtra and Others, a two‑judge Bench of the Supreme Court of India, speaking through Justice U. U. Lalit, dealt with an appeal against the rejection of an application under Section 482 of the Criminal Procedure Code for quashing an FIR registered under Sections 306 and 506 read with Section 34 of the Indian Penal Code. The facts showed that the deceased’s wife alleged mental torture by superiors, leading to the deceased’s suicide. The Court held that the facts on record were inadequate and insufficient to bring home the charge of abetment of suicide under Section 306 IPC, and consequently the proceedings against the appellant were quashed., In Praveen Pradhan, a two‑judge Bench of the Supreme Court of India, speaking through Justice B. S. Chauhan, dismissed an appeal against the rejection of an application under Section 482 of the Criminal Procedure Code for quashing a criminal proceeding implicating an offence under Section 306 IPC. The suicide note showed that the appellant perpetually humiliated, exploited and demoralised the deceased, forcing him to resign and endure continuous illegal demands. The Court observed that the harassment was persistent and, coupled with words indicating that any other person in the deceased’s place would have certainly committed suicide, made the case distinct from earlier precedents. The Court dismissed the appeal, holding that the contents of the FIR indicated persistent harassment and words that led to the commission of suicide., In Narayan Malhari Thorat v. Vinayak Deorao Bhagat, the Supreme Court of India, speaking through Justice U. U. Lalit, reversed the judgment of a Division Bench of the High Court which had quashed criminal proceedings under Section 482. The FIR alleged that the first respondent repeatedly called and harassed the victim’s wife, leading to the victim’s suicide. The Court held that the High Court was not justified in questioning whether the first respondent had the requisite intention to aid, instigate or abet the commission of suicide, especially when the investigation was incomplete., The FIR in the present case recites that the spouse of the informant runs a business of architecture, interior design and engineering consultancy. The deceased had been under pressure for two years for not receiving money for work carried out. He called the appellant’s office and spoke to the accountant for payment. The suicide note stated that his money was stuck and that owners of respective companies were not paying legitimate dues. Prima facie, applying the test laid down by the Supreme Court of India, it cannot be said that the appellant is guilty of having abetted the suicide within the meaning of Section 306 of the Indian Penal Code. The High Court failed to notice the contents of the FIR and to make a prima facie evaluation, thereby abdicating its role, function and jurisdiction when seized of a petition under Section 482 of the Criminal Procedure Code., The petition before the High Court was instituted under Article 226 of the Constitution and Section 482 of the Criminal Procedure Code. While dealing with the petition for quashing the FIR, the High Court did not consider whether prima facie the ingredients of the offence have been made out in the FIR. Consequently, the High Court disabled itself from exercising its jurisdiction under Article 226 to consider the appellant’s application for bail. In considering such an application, the High Court must be circumspect, but should not foreclose its power when a citizen has been arbitrarily deprived of personal liberty., While considering an application for bail under Article 226, the High Court must consider the settled factors emerging from precedents of the Supreme Court of India: (i) the nature of the alleged offence, the nature of the accusation and the severity of punishment on conviction; (ii) whether there is a reasonable apprehension of the accused tampering with witnesses or being a threat to the complainant or witnesses; (iii) the possibility of securing the presence of the accused at trial or the likelihood of the accused fleeing; (iv) the antecedents and circumstances peculiar to the accused; (v) whether prima facie the ingredients of the offence are made out in the FIR; and (vi) the significant interests of the public or the State and other similar considerations., These principles have evolved over time and emanate from decisions such as Prahlad Singh Bhati v. NCT of Delhi, Ram Govind Upadhyay v. Sudarshan Singh, State of Uttar Pradesh v. Amarmani Tripathi, Prasanta Kumar Sarkar v. Ashis Chatterjee, Sanjay Chandra v. Central Bureau of Investigation and P. Chidambaram v. Central Bureau of Investigation. They are equally applicable to the exercise of jurisdiction under Article 226 when the court is called upon to secure the liberty of the accused. The High Court must exercise its power with caution and circumspection, cognizant that this jurisdiction is not a ready substitute for the remedy of bail under Section 439 of the Criminal Procedure Code., In the backdrop of these principles, it has become necessary to scrutinize the contents of the FIR in the case at hand.
id_51	3	In this batch of cases, a prima facie evaluation of the First Information Report does not establish the ingredients of the offence of abetment of suicide under Section 306 of the Indian Penal Code. The appellants are residents of India and do not pose a flight risk during the investigation or the trial. There is no apprehension of tampering of evidence or witnesses. Taking these factors into consideration, the order dated 11 November 2020 envisaged the release of the appellants on bail., Human liberty is a precious constitutional value, which is undoubtedly subject to regulation by validly enacted legislation. As such, the citizen is subject to the edicts of criminal law and procedure. Section 482 of the Code of Criminal Procedure recognizes the inherent power of the High Court to make such orders as are necessary to give effect to the provisions of the Code of Criminal Procedure or prevent abuse of the process of any Court or otherwise to secure the ends of justice. Decisions of the Supreme Court of India require the High Courts, in exercising the jurisdiction entrusted to them under Section 482, to act with circumspection. In emphasising that the High Court must exercise this power with a sense of restraint, the decisions of the Supreme Court of India are founded on the basic principle that the due enforcement of criminal law should not be obstructed by the accused taking recourse to artifices and strategies. The public interest in ensuring the due investigation of crime is protected by ensuring that the inherent power of the High Court is exercised with caution. That indeed is one significant end of the spectrum. The other end of the spectrum is equally important: the recognition by Section 482 of the power inhering in the High Court to prevent the abuse of process or to secure the ends of justice is a valuable safeguard for protecting liberty., The Code of Criminal Procedure of 1898 was enacted by a legislature which was not subject to constitutional rights and limitations; yet it recognized the inherent power in Section 561A. Post‑Independence, the recognition by Parliament of the inherent power of the High Court must be construed as an aid to preserve the constitutional value of liberty. The writ of liberty runs through the fabric of the Constitution. The need to ensure the fair investigation of crime is undoubtedly important in itself, because it protects at one level the rights of the victim and, at a more fundamental level, the societal interest in ensuring that crime is investigated and dealt with in accordance with law. On the other hand, the misuse of the criminal law is a matter of which the High Court and the lower courts in this country must be alive., In the present case, the High Court could not but have been cognizant of the specific ground raised before it by the appellant that he was being targeted as a part of a series of occurrences which have been taking place since April 2020. The specific case of the appellant is that he has been targeted because his opinions on his television channel are unpalatable to authority. Whether the appellant has established a case for quashing the First Information Report is something on which the High Court will take a final view when the proceedings are listed before it, but we are clearly of the view that in failing to make even a prima facie evaluation of the FIR, the High Court abdicated its constitutional duty and function as a protector of liberty. Courts must be alive to the need to safeguard the public interest in ensuring that the due enforcement of criminal law is not obstructed. The fair investigation of crime is an aid to it. Equally it is the duty of courts across the spectrum—the district judiciary, the High Courts and the Supreme Court of India—to ensure that the criminal law does not become a weapon for the selective harassment of citizens. Courts should be alive to both ends of the spectrum: the need to ensure the proper enforcement of criminal law on the one hand and, on the other, the need to ensure that the law does not become a ruse for targeted harassment., Liberty across human eras is as tenuous as tenuous can be. Liberty survives by the vigilance of her citizens, on the cacophony of the media and in the dusty corridors of courts alive to the rule of law (and not by law). Yet, much too often, liberty is a casualty when one of these components is found wanting., Mr Kapil Sibal, Mr Amit Desai and Mr Chander Uday Singh are undoubtedly right in submitting that the procedural hierarchy of courts in matters concerning the grant of bail needs to be respected. However, there was a failure of the High Court to discharge its adjudicatory function at two levels: first, in declining to evaluate prima facie at the interim stage in a petition for quashing the FIR as to whether an arguable case has been made out; and secondly, in declining interim bail, as a consequence of its failure to render a prima facie opinion on the first. The High Court did have the power to protect the citizen by an interim order in a petition invoking Article 226. Where the High Court has failed to do so, the Supreme Court of India would be abdicating its role and functions as a constitutional court if it refuses to interfere, despite the parameters for such interference being met. The doors of the Supreme Court of India cannot be closed to a citizen who is able to establish prima facie that the instrumentality of the State is being weaponized for using the force of criminal law. Our courts must ensure that they continue to remain the first line of defence against the deprivation of the liberty of citizens. Deprivation of liberty even for a single day is one day too many. We must always be mindful of the deeper systemic implications of our decisions., It would be apposite to extract the observations made, albeit in a dissenting opinion, by Justice Dhananjaya Y. Chandrachud, J., in a decision of a three‑judge bench in Romila Thapar vs Union of India: “The basic entitlement of every citizen who is faced with allegations of criminal wrongdoing is that the investigative process should be fair. This is an integral component of the guarantee against arbitrariness under Article 14 and of the right to life and personal liberty under Article 21.” The decision was a dissent in the facts of the case. The view of the leading majority judgment is undoubtedly the view of the Supreme Court of India, which binds us. However, the principle quoted above is in line with the precedents of this Court., More than four decades ago, in a celebrated judgment in State of Rajasthan, Jaipur vs Balchand, Justice Krishna Iyer pithily reminded us that the basic rule of our criminal justice system is bail, not jail. The High Courts and the district judiciary of India must enforce this principle in practice, and not forego that duty, leaving the Supreme Court of India to intervene at all times. We must in particular also emphasise the role of the district judiciary, which provides the first point of interface to the citizen. Our district judiciary is wrongly referred to as the subordinate judiciary. It may be subordinate in hierarchy but it is not subordinate in terms of its importance in the lives of citizens or in terms of the duty to render justice to them. High Courts get burdened when courts of first instance decline to grant anticipatory bail or bail in deserving cases. This continues in the Supreme Court of India as well, when High Courts do not grant bail or anticipatory bail in cases falling within the parameters of the law. The consequence for those who suffer incarceration are serious. Common citizens without the means or resources to move the High Courts or the Supreme Court of India languish as undertrials. Courts must be alive to the situation as it prevails on the ground in the jails and police stations where human dignity has no protector. As judges, we would do well to remind ourselves that it is through the instrumentality of bail that our criminal justice system’s primordial interest in preserving the presumption of innocence finds its most eloquent expression. The remedy of bail is the solemn expression of the humanity of the justice system., Tasked as we are with the primary responsibility of preserving the liberty of all citizens, we cannot countenance an approach that has the consequence of applying this basic rule in an inverted form. We have given expression to our anguish in a case where a citizen has approached the Supreme Court of India. We have done so in order to reiterate principles which must govern countless other faces whose voices should not go unheard., We would also like to take this opportunity to place on record data sourced from the National Judicial Data Grid on the number of bail applications currently pending in High Courts and District Courts across India: Pendency before the High Courts – Bail Applications 91,568; Criminal Matters (Writ Petitions, Cases/Petitions, Appeals, Revisions and Applications) 1,266,133. Pendency before the District Courts – Bail Applications 196,861. The data on the National Judicial Data Grid is available in the public realm. For nine High Courts, no separate data is available in relation to pending bail applications, which are quantified as pending applications simplicitor. Further, for two High Courts, the data is only available for their principal bench and not their circuit benches. More granulated data can be accessed at the website of the National Judicial Data Grid. For Chief Justices of the High Courts, the information which is available is capable of being utilized as a valuable instrument to promote access to justice, particularly in matters concerning liberty. The Chief Justices of every High Court should, in their administrative capacities, utilize the Information and Communication Technology tools which are placed at their disposal in ensuring that access to justice is democratized and equitably allocated. Liberty is not a gift for the few. Administrative judges in charge of districts must also use the facility to engage with the district judiciary and monitor pendency. As the data on the National Judicial Data Grid makes clear, there is a pressing need for courts across the judicial hierarchy in India to remedy the institutional problem of bail applications not being heard and disposed of with expedition., Every court in our country would do well to remember Lord Denning’s powerful invocation in the first Hamlyn Lecture, titled Freedom under the Law: “Whenever one of the judges takes seat, there is one application which by long tradition has priority over all others. The counsel has but to say, ‘My Lord, I have an application which concerns the liberty of the subject,’ and forthwith the judge will put all other matters aside and hear.” It is our earnest hope that our courts will exhibit acute awareness to the need to expand the footprint of liberty and use our approach as a decision‑making yardstick for future cases involving the grant of bail., Since the proceedings are pending before the High Court, we clarify that the observations on the facts contained in the present judgment are confined to a determination whether a case for grant of interim protection was made out. Equally, the observations which are contained in the impugned order of the High Court were also at the interim stage and will not affect the final resolution of the issues which arise and have been raised before the High Court., While reserving the judgment at the conclusion of arguments, the Supreme Court of India directed the release of all three appellants on bail pending the disposal of the proceedings before the High Court. The following operative directions were issued on 11 November 2020: We are of the considered view that the High Court was in error in rejecting the applications for the grant of interim bail. We accordingly order and direct that Arnab Manoranjan Goswami, Feroz Mohammad Shaikh and Neetish Sarda shall be released on interim bail, subject to each of them executing a personal bond in the amount of Rs 50,000 to be executed before the Jail Superintendent. They are, however, directed to cooperate in the investigation and shall not make any attempt to interfere with the ongoing investigation or with the witnesses. The concerned jail authorities and the Superintendent of Police, Raigad are directed to ensure that this order is complied with forthwith. A certified copy of this order shall be issued during the course of the day., The interim protection which has been granted to the above accused by the order dated 11 November 2020 shall continue to remain in operation pending the disposal of the proceedings before the High Court and thereafter for a period of four weeks from the date of the judgment of the High Court, should it become necessary for any of them to take further recourse to their remedies in accordance with law.
id_510	0	Appellant: Ravindra Pratap Yadav. Respondent: Shrimati Asha Devi and others. Counsel for appellant: M. Islam, Ahmad Saeed, Azim Ahmad Kazmi. Honourable Justice Suneet Kumar, Honourable Justice Rajendra Kumar IV., This Family Court appeal challenges the dismissal order dated 28 November 2005, passed by the Principal Judge of the Family Court, Varanasi, on a divorce petition filed by the appellant-husband in Marriage Petition Number 526 of 2001 under Section 13 of the Hindu Marriage Act., The facts of the appellant's case are as follows: The plaintiff-appellant and defendant-respondent were married on 5 May 1979 according to Hindu rites and rituals. According to the appellant, the Gauna ceremony was performed after seven years of marriage. The defendant-respondent came to his house and started living as his wife. Initially her behaviour was good, but subsequently she changed her attitude and refused to live with him as his wife. Her apathy and inhuman conduct towards the appellant became apparent within a short time. The plaintiff-appellant attempted to reconcile, but she did not re-establish a relationship with him. The appellant felt that the marriage was merely a formality because serious matrimonial problems developed immediately after the Gauna and continued to grow. Although they lived under the same roof for some time, the defendant-respondent voluntarily began to live separately at her parents' house after the Gauna. The plaintiff-appellant was serving in the police department and had been posted elsewhere. After six months of marriage, he returned home on leave, hoping that the defendant-respondent would resume marital obligations and respect the marital bond. When he went to take his wife, she refused to accompany him and asked for a divorce by consent. The plaintiff-appellant informed her parents of the proposal, and they agreed., On 4 July 1994, a village Panchayat was held, and according to community rituals, the parties reached an agreement of divorce., According to the plaintiff-appellant, they mutually divorced and he paid a permanent alimony of Rupees twenty-two thousand to the defendant-respondent before the respected persons, which the defendant-respondent accepted., According to the plaintiff-appellant, defendant-respondent number one had contracted a second marriage with defendant-respondent number two, and two sons were born from that wedlock. The plaintiff-appellant sought a decree of divorce on the grounds of mental cruelty, long desertion, and the divorce agreement dated 4 July 1994., Despite sufficient service through publication, the defendant-respondent did not appear before the Family Court, and therefore the case was proceeded ex parte., In support of his case, the plaintiff-appellant examined himself as Petitioner Witness 1, Harikishan as Petitioner Witness 2, and Ram Badan as Petitioner Witness 3, and filed some papers before the Family Court., After examining the entire evidence presented before the Family Court, it did not find the case of the plaintiff-appellant proved and ordered the case to be dismissed ex parte with costs., Feeling aggrieved by the impugned order, the present appeal has been preferred., We have heard learned counsel for the appellant and have perused the record., The plaintiff-appellant sought divorce mainly on the grounds that the divorce took place in the community Panchayat, that the defendant-respondent committed mental cruelty by refusing to cohabit and discharge the obligations of marital life, and that the parties had been living separately for a considerable period and continued to do so., The plaintiff-appellant examined himself as Petitioner Witness 1 and two other witnesses as Petitioner Witness 2 and Petitioner Witness 3, who supported his case., The evidence led by the plaintiff-appellant is uncontroverted. There is nothing on record to disbelieve the plaintiff-appellant's case or his uncontroverted evidence., While dismissing the case of the plaintiff-appellant, the Family Court observed that the papers filed by the plaintiff-appellant were photocopies and no original documents had been filed, and that photocopies are not admissible as evidence. The Family Court also observed that there was no evidence on record showing that defendant-respondent Shrimati Asha Devi had contracted a second marriage. It is evident from the record that the parties have been living separately for a long time; according to the plaintiff-appellant, the defendant-respondent had no respect for the marital bond and refused to discharge marital obligations. There has been a complete breakdown of the marriage., The Family Court adopted a hyper‑technical approach and passed the order dismissing the plaintiff-appellant's case. There is nothing on record to controvert the evidence of the plaintiff-appellant., Undoubtedly, denying a spouse sexual intercourse for a long period without sufficient reason amounts to mental cruelty. A bench of three judges of the Supreme Court of India in Samar Ghosh v. Jaya Ghosh (2007) 4 SCC 511 enumerated illustrations of mental cruelty. Paragraph 101 of that case states: 'No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with cases of mental cruelty. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive.' The court listed several examples, including acute mental pain making cohabitation impossible, sustained rudeness, coldness, neglect, a state of deep anguish, a sustained course of abusive and humiliating treatment, conduct that adversely affects physical and mental health, persistent reprehensible conduct, conduct beyond mere jealousy or selfishness, and unilateral refusal to have intercourse without medical reason., In Vinita Saxena v. Pankaj Pandit (2006) 3 SCC 778, the Supreme Court of India observed on mental cruelty: 'It is settled by a series of decisions that mental cruelty can cause even more serious injury than physical harm and create in the mind of the injured party such apprehension as is contemplated in the section. It must be determined on the whole facts of the case and the matrimonial relations between the spouses. To amount to cruelty, there must be wilful treatment causing suffering in body or mind, either as an actual fact or by way of apprehension, in a manner that renders continued cohabitation harmful or injurious given the circumstances.' The Court further held that the word cruelty has not been defined and is used in relation to human conduct concerning matrimonial duties and obligations. Cruelty may be mental or physical, intentional or unintentional. Where the conduct itself is unlawful, the impact on the other spouse need not be examined; cruelty is established if the conduct is proved or admitted., Since there is no acceptable view that a spouse can be compelled to resume life with the consort, nothing is achieved by trying to keep parties tied forever to a marriage that has, in fact, ceased to exist., From the perusal of the plaint and other evidence on record, we are unable to accept the view taken by the Family Court., In view of the foregoing discussion, the appeal succeeds and is allowed. The impugned order of the Family Court is quashed and set aside. The marriage petition filed by the plaintiff-appellant is allowed, granting a decree of divorce., In the circumstances, there shall be no order as to costs. Manoj, Justice Rajendra Kumar IV, Justice Suneet Kumar.
id_512	0	The Collegium of the Supreme Court recommended the names of three Advocates and a Judicial Officer for appointment as Judges of the High Court of Uttarakhand. The Advocates are Shri Rakesh Thapliyal, Shri Pankaj Purohit and Shri Subhash Upadhyay. The Judicial Officer is Shri Vivek Bharti Sharma. On 07 September 2022 the Chief Justice of the High Court of Uttarakhand made the recommendation in consultation with his two senior‑most colleagues. The Chief Minister and the Governor of the State of Uttarakhand have concurred with the recommendation. The file was received in the Supreme Court from the Department of Justice on 01 April 2023. In terms of the Memorandum of Procedure, to ascertain the suitability of the above‑named candidates for elevation to the High Court, the Judges of the Supreme Court conversant with the affairs of the High Court of Uttarakhand were consulted. For the purpose of assessing the merit and suitability of the candidates, we have scrutinized and evaluated the material placed on record including certain complaints, and we have also perused the observations made by the Department of Justice in the file as well as complaints received against the candidates., Shri Rakesh Thapliyal, Advocate, has been reported by the Intelligence Bureau to have a good personal and professional image and that nothing adverse has come to notice regarding his integrity. We have considered the views of our consultee‑colleagues. He is a designated senior advocate practising with domain expertise in service and criminal law. Although he has crossed the age of 55 years, the Collegium of the High Court has recommended his name looking into his credentials, reputation and performance in the court and considering the fact that the Collegium is not able to identify other suitable names from the Bar. Keeping in mind the above aspects, the Collegium is of the considered opinion that Shri Rakesh Thapliyal is fit and suitable for appointment as a Judge of the High Court of Uttarakhand., Shri Pankaj Purohit, Advocate, has been reported by the Intelligence Bureau to have a good personal and professional image and that nothing adverse has come to notice regarding his integrity. We have considered the views of our consultee‑colleagues. He is reported by the consultee‑Judges to be deserving and suitable for elevation. He fulfills the age and income criteria. In view of the above, the Collegium is of the considered opinion that Shri Pankaj Purohit is fit and suitable for appointment as a Judge of the High Court of Uttarakhand., Shri Subhash Upadhyay, Advocate, has been reported by the Intelligence Bureau to have a good personal and professional image and that nothing adverse has come to notice regarding his integrity. We have considered the views of our consultee‑colleagues who have found him suitable for elevation. He is a competent counsel practising with domain expertise in service law. The Collegium has considered the difficulty in identifying other suitable names from the Bar. Keeping in mind the above aspects, the Collegium is of the considered opinion that Shri Subhash Upadhyay is fit and suitable for appointment as a Judge of the High Court of Uttarakhand., Shri Vivek Bharti Sharma, Judicial Officer, joined the judicial service in 2006 and has considerable experience on the judicial side. He is the senior‑most member of the Uttarakhand Higher Judicial Service and is presently posted as Registrar General in the High Court. The Intelligence Bureau has reported that he has a good personal and professional image and that nothing adverse has come to notice regarding his integrity. We have considered the views of our consultee‑colleagues who have found him suitable for elevation. The Collegium of the High Court has recommended his name although on the date of occurrence of vacancy he had crossed the age limit of 58 years, considering his outstanding assessment as a judicial officer and as Registrar General. Keeping in view the above, this Collegium is of the considered opinion that Shri Vivek Bharti Sharma is fit and suitable for appointment as a Judge of the High Court of Uttarakhand., In view of the above, the Collegium resolves to recommend that Shri Rakesh Thapliyal, Shri Pankaj Purohit, Shri Subhash Upadhyay, Advocates, and Shri Vivek Bharti Sharma, Judicial Officer, be appointed as Judges of the High Court of Uttarakhand. Their inter se seniority shall be fixed as per the existing practice.
id_513	0	Reserved Case: Writ Petition No. 9814 of 2020. Petitioner: Uttam Chand Rawat. Respondent: State of Uttar Pradesh and seven others. Counsel for Petitioner: Shyam Shanker Pandey. Counsel for Respondent: C.S.C. Honourable Munishwar Nath Bhandari, Acting Chief Justice; Honourable Prakash Padia, Judge; Honourable Sanjay Kumar Singh, Judge (as per Honourable Munishwar Nath Bhandari, Acting Chief Justice). The learned Single Judge has referred the following questions to the larger bench of the Supreme Court of India finding conflicting judgments on the issue: (i) Whether the element of public function and public duty inherent in the enterprise that an educational institution undertakes, including conditions of service of teachers whose functions are a sine qua non to the discharge of that public function or duty, can be regarded as governed by the private law of contract and with no remedy available under Article 226 of the Constitution? (ii) Whether the decision in Rajesh Kumar Srivastava and others versus State of Uttar Pradesh and others, 2020 (2) AWC 1693 is in conflict with the holding of the Full Bench in Roychan Abraham versus State of Uttar Pradesh and others, (2019) Supreme Court Cases Online All 3935? The questions have been referred after detailed consideration of the earlier judgments on the issue., The judgment in the case of M.K. Gandhi and others versus Director of Education (Secondary) Uttar Pradesh and others, 2005 (3) ESC 2265 (All) (Full Bench) affirmed by the Supreme Court of India in the case of Committee of Management, Delhi Public School and another versus M.K. Gandhi and others, (2015) 17 Supreme Court Cases 353 has also been considered. The learned Single Judge has given reference to the judgments of the Supreme Court of India in the cases of Ramesh Ahluwalia versus State of Punjab and others, (2012) 12 Supreme Court Cases 331 and Lal Bahadur Gautam versus State of Uttar Pradesh and others, (2019) 6 Supreme Court Cases 441. It also noticed that the issue of maintainability of the writ petition was considered by the larger bench of the Supreme Court of India in the case of Roychan Abraham versus State of Uttar Pradesh and others, (2019) Supreme Court Cases Online All 3935. It was to revisit the view expressed by the Full Bench in the case of M.K. Gandhi (supra) and the Division Bench in the case of Anjani Kumar Srivastava versus State of Uttar Pradesh and others, 2017 (7) ADJ 112 (Division Bench)., The Full Bench in the case of Roychan Abraham (supra) answered the questions as under: Question (i): Private institutions imparting education to students from the age of six years onwards, including higher education, perform a public duty primarily a State function; therefore they are amenable to judicial review of the High Court of Uttar Pradesh under Article 226 of the Constitution of India. Question (ii): The broad principle of law formulated in the judgment of the Full Bench in M.K. Gandhi and the Division Bench in Anjani Kr. Srivastava is confined to the facts obtaining therein and is not an authority on the proposition of law that private educational institutions do not render a public function and, therefore, are not amenable to judicial review of the High Court. The judgments do not require to be revisited., The learned Single Judge found the judgment in the case of Rajesh Kumar Srivastava (supra) to be in conflict with other judgments. In that case, the learned Single Judge held a writ petition under Article 226 of the Constitution of India to be maintainable against the authority or the person discharging a public duty only when an issue of public law is involved. The writ petition would not be maintainable if the claim arises out of a private contract between the two parties. The aforesaid view was taken to be in conflict with the earlier judgment of the Supreme Court of India and, accordingly, the matter has been referred to the larger bench of the Supreme Court of India. The questions referred to the larger bench concern the maintainability of the writ petition against the authority or the person discharging a public duty/public function which may not fall within the definition of State or its authority under Article 12 of the Constitution of India., The issue aforesaid has been considered by the Supreme Court of India at length recently in the case of Ramakrishnan Mission and another versus Kago Kunya and others, (2019) 16 Supreme Court Cases 303. In the said case, the Supreme Court of India considered all the earlier judgments on the issue. The judgment in the case supra was given after considering the scope of Article 12 as well as Article 226 of the Constitution of India. It is not only after analysing the facts of the case but also the proposition of law evolved by the Supreme Court of India in the earlier judgments on maintainability of the writ petition. For maintainability of the writ petition, a twin test is to be satisfied. The first test is about the public function/public duty by an authority or a person and the second test is whether the challenge to the action falls in the domain of public law. Accordingly, the writ petition would not be maintainable against the authority or the person referred to under Article 226 of the Constitution of India merely for the reason of discharge of a public function/public duty unless an issue of public law is involved., The word public law has been elaborately discussed by the Supreme Court of India in the case of K.K. Saksena versus International Commission on Irrigation and Drainage and others, (2015) 4 Supreme Court Cases 670. It was held that private law remedies would not be enforceable through the extraordinary jurisdiction of the High Court of Uttar Pradesh. Private law is a part of the legal system under the common law that involves relationships between individuals such as contract or tort law. It was held that even if a writ petition is maintainable against an authority or person, before issuing it the Court must be satisfied that the action of the authority or the person is in the domain of public law, distinguished from private law. The contractual and commercial obligations are enforceable only by ordinary civil action. In view of the judgments in the cases of K.K. Saksena (supra) and Ramakrishnan Mission (supra), the issue canvassed by the learned Single Judge can be answered, but before that we would like to give reference to other judgments for clarity because the issue of maintainability of the writ petition arises repeatedly before the Supreme Court of India and presently two judgments of the larger bench exist., The issue of maintainability was initially discussed by the Supreme Court of India in the case of Ajay Hasia and others versus Khalid Mujib Sehravardi and others, (1981) 1 Supreme Court Cases 722. It was mainly in reference to Article 12 of the Constitution of India. The issue of maintainability of the writ petition against a private body not falling within the definition of State or its authority under Article 12 of the Constitution of India needs to be considered under Article 226 of the Constitution of India., Article 12 – Definition: In this part, unless the context otherwise requires, the State includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India. Article 226 – Power of High Courts to issue certain writs: (1) Notwithstanding anything in Article 32, every High Court shall have powers, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, for the enforcement of any of the rights conferred by Part III and for any other purpose. (2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories. (3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause (1), without (a) furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and (b) giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the next day, stand vacated. (4) The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme Court by clause (2) of Article 32., The issue in reference to Article 12 and Article 226 of the Constitution of India was considered by the Supreme Court of India in the case of Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust v. V.R. Rudani, (1989) 2 Supreme Court Cases 691. It was a case where the order of termination of a teacher of a private aided and affiliated college was challenged. The Supreme Court of India held the writ petition to be maintainable even against the private body, finding it to be discharging a public duty. The judgment was given in reference to Article 226 of the Constitution of India, which provides jurisdiction of the High Court of Uttar Pradesh to issue an order or writ against any person or authority. According to the judgment, the writ petition is maintainable against a private educational institution discharging a public duty or public function., The issue of maintainability of the writ petition was again considered by the Supreme Court of India in the case of Binny Ltd. and another versus V. Sadasivan and others, (2005) 6 Supreme Court Cases 657. It was held that a writ of mandamus or remedy under Article 226 of the Constitution of India is a public law remedy and can be exercised against a body or person discharging a public function or public duty. The word public function was elaborately discussed to define it. It was held that a body or person performs a public function when it seeks to achieve collective benefit for the public or a section thereof., The superior court's supervisory jurisdiction of judicial review is invoked by an aggrieved party in myriad cases. High Courts of India are empowered under Article 226 of the Constitution to exercise judicial review to correct administrative decisions and under this jurisdiction the High Court can issue to any person or authority any direction or order or writ for enforcement of any of the rights conferred by Part III or for any other purpose. The jurisdiction conferred on the High Court under Article 226 is very wide. However, it is an accepted principle that this is a public law remedy and it is available against a body or person performing a public law function. Before considering the scope and ambit of public law remedy in the light of certain English decisions, it is worthwhile to remember the words of Subba Rao, J. expressed in relation to the powers conferred on the High Court under Article 226 of the Constitution in Dwarkanath v. ITO [(1965) 3 This article is couched in comprehensive phraseology and it ex facie confers a wide power on the High Courts to reach injustice wherever it is found. The Constitution designedly used a wide language in describing the nature of the power, the purpose for which and the person or authority against whom it can be exercised. It can issue writs in the nature of prerogative writs as understood in England; but the scope of those writs also is widened by the use of the expression nature, for the said expression does not equate the writs that can be issued in India with those in England, but only draws an analogy from them. That apart, High Courts can also issue directions, orders or writs other than the prerogative writs. It enables the High Court to mould the reliefs to meet the peculiar and complicated requirements of this country. Any attempt to equate the scope of the power of the High Court under Article 226 of the Constitution with that of the English courts to issue prerogative writs is to introduce unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary form of Government into a vast country like India functioning under a federal structure. Such a construction defeats the purpose of the article itself. The writ of mandamus lies to secure the performance of a public or a statutory duty. The prerogative remedy of mandamus has long provided the normal means of enforcing the performance of public duties by public authorities. Originally, the writ of mandamus was merely an administrative order from the Sovereign to subordinates. In England, in early times, it was made generally available through the Court of King's Bench, when the Central Government had little administrative machinery of its own. Early decisions show that there was free use of the writ for the enforcement of public duties of all kinds, for instance against inferior tribunals which refused to exercise their jurisdiction or against municipal corporations which did not duly hold elections, meetings, and so forth. In modern times, the mandamus is used to enforce statutory duties of public authorities. The courts always retained the discretion to withhold the remedy where it would not be in the interest of justice to grant it. It is also to be noticed that the statutory duty imposed on the public authorities may not be of discretionary character. A distinction had always been drawn between the public duties enforceable by mandamus that are statutory and duties arising merely from contract. Contractual duties are enforceable as matters of private law by ordinary contractual remedies such as damages, injunction, specific performance and declaration. In the Administrative Law (9th Edn.) by Sir William Wade and Christopher Forsyth (Oxford University Press) at p. 621, the following opinion is expressed: A distinction which needs to be clarified is that between public duties enforceable by mandamus, which are usually statutory, and duties arising merely from contract. Contractual duties are enforceable as matters of private law by the ordinary contractual remedies, such as damages, injunction, specific performance and declaration. They are not enforceable by mandamus, which in the first place is confined to public duties and secondly is not granted where there are other adequate remedies. This difference is brought out by the relief granted in cases of ultra vires. If for example a minister or a licensing authority acts contrary to the principles of natural justice, certiorari and mandamus are standard remedies. But if a trade union disciplinary committee acts in the same way, these remedies are inapplicable: the rights of its members depend upon their contract of membership, and are to be protected by declaration and injunction, which accordingly are the remedies employed in such cases. Judicial review is designed to prevent the cases of abuse of power and neglect of duty by public authorities. However, under our Constitution, Article 226 is couched in such a way that a writ of mandamus could be issued even against a private authority. However, such private authority must be discharging a public function and the decision sought to be corrected or enforced must be in discharge of a public function. The role of the State expanded enormously and attempts have been made to create various agencies to perform governmental functions. Several corporations and companies have also been formed by the Government to run industries and to carry on trading activities. These have come to be known as public sector undertakings. However, in the interpretation given to Article 12 of the Constitution, this Court took the view that many of these companies and corporations could come within the sweep of Article 12 of the Constitution. At the same time, there are private bodies also which may be discharging public functions. It is difficult to draw a line between public functions and private functions when they are being discharged by a purely private authority. A body is performing a public function when it seeks to achieve some collective benefit for the public or a section of the public and is accepted by the public or that section of the public as having authority to do so. Bodies therefore exercise public functions when they intervene or participate in social or economic affairs in the public interest. In a book on Judicial Review of Administrative Action (5th Edn.) by de Smith, Woolf & Jowell in Chapter 3, para 0.24, it is stated thus: A body is performing a public function when it seeks to achieve some collective benefit for the public or a section of the public and is accepted by the public or that section of the public as having authority to do so. Bodies therefore exercise public functions when they intervene or participate in social or economic affairs in the public interest. This may happen in a wide variety of ways. For instance, a body is performing a public function when it provides public goods or other collective services, such as health care, education and personal social services, from funds raised by taxation. A body may perform public functions in the form of adjudicatory services (such as those of the criminal and civil courts and tribunal system). They also do so if they regulate commercial and professional activities to ensure compliance with proper standards. For all these purposes, a range of legal and administrative techniques may be deployed, including rule making, adjudication (and other forms of dispute resolution); inspection; and licensing. Public functions need not be the exclusive domain of the State. Charities, self‑regulatory organisations and other nominally private institutions (such as universities, the Stock Exchange, Lloyd's of London, churches) may in reality also perform some types of public function. As Sir John Donaldson, M.R. urged, it is important for the courts to recognise the realities of executive power and not allow their vision to be clouded by the subtlety and sometimes complexity of the way in which it can be exerted. Non‑governmental bodies such as these are just as capable of abusing their powers as is Government., Thus, it can be seen that a writ of mandamus or the remedy under Article 226 is pre‑eminently a public law remedy and is not generally available as a remedy against private wrongs. It is used for enforcement of various rights of the public or to compel public or statutory authorities to discharge their duties and to act within their bounds. It may be used to do justice when there is wrongful exercise of power or a refusal to perform duties. This writ is admirably equipped to serve as a judicial control over administrative actions. This writ could also be issued against any private body or person, especially in view of the words used in Article 226 of the Constitution. However, the scope of mandamus is limited to enforcement of public duty. The scope of mandamus is determined by the nature of the duty to be enforced, rather than the identity of the authority against whom it is sought. If the private body is discharging a public function and the denial of any right is in connection with the public duty imposed on such body, the public law remedy can be enforced. The duty cast on the public body may be either statutory or otherwise and the source of such power is immaterial, but nevertheless there must be a public law element in such action. Sometimes, it is difficult to distinguish between public law and private law remedies. According to Halsbury's Laws of England, 3rd Edn., Vol. 30, p. 1317, a public authority is a body, not necessarily a county council, municipal corporation or other local authority, which has public or statutory duties to perform and which performs those duties and carries out its transactions for the benefit of the public and not for private profit. There cannot be any general definition of public authority or public action. The facts of each case decide the point., 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. Nevertheless, the Government or government authorities at all levels are increasingly employing contractual techniques to achieve their regulatory aims. It cannot be said that the exercise of those powers is free from the zone of judicial review and that there would be no limits to the exercise of such powers, but in normal circumstances judicial review principles cannot be used to enforce contractual obligations. When that contractual power is being used for a public purpose, it is certainly amenable to judicial review. The power must be used for lawful purposes and not unreasonably., The decision of the employer in these two cases to terminate the services of their employees cannot be said to have any element of public policy. Their cases were purely governed by the contract of employment entered into between the employees and the employer. It is not appropriate to construe those contracts as opposed to the principles of public policy and thus void and illegal under Section 23 of the Contract Act. In contractual matters even in respect of public bodies, the principles of judicial review have got limited application. This was expressly stated by the Supreme Court of India in State of Uttar Pradesh v. Bridge & Roof Co. (India) Ltd. [(1996) 6 Supreme Court Cases 22] and also in Kerala SEB v. Kurien E. Kalathil [(2000) 6 Supreme Court Cases 293]. In the latter case, the Supreme Court of India reiterated that 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 a writ petition under Article 226., Applying these principles, it can be said that a writ of mandamus can be issued against a private body which is not the State within the meaning of Article 12 of the Constitution and such body is amenable to the jurisdiction under Article 226 of the Constitution. The High Court of Uttar Pradesh can exercise judicial review of the action challenged by a party, but there must be a public law element and it cannot be exercised to enforce purely private contracts entered into between the parties., We are unable to perceive any public element in the termination of the employees by the appellant in Civil Appeal No. 1976 of 1998 and the remedy available to the respondents is to seek redressal of their grievance in civil law or under the labour law enactments, especially in view of the disputed questions involved as regards the status of employees and other matters. Similarly, in the civil appeal arising out of SLP (Civil) No. 6016 of 2002, the writ petition has been rightly dismissed by the High Court of Uttar Pradesh. We see no merit in the contention advanced by the appellant. The High Court of Uttar Pradesh rightly held that there is no public law element and the remedy open to the appellant is to seek appropriate relief other than judicial review of the action taken by the respondent company., Prior to the judgment aforesaid, the Supreme Court of India had considered the same issue in the case of Federal Bank Ltd. versus Sagar Thomas and others, (2003) 10 Supreme Court Cases 333. The judgment was given after considering the nature of work performed by the Federal Bank. The argument was raised that the Bank was incorporated under the Companies Act but is governed by regulatory provisions of banking. The Supreme Court of India did not accept the argument on maintainability of the writ petition merely because the authority or the person was incorporated under the Companies Act and is governed by regulatory provisions. It was held that a writ petition under Article 226 of the Constitution of India would be maintainable against: (i) the State (Government); (ii) an authority; (iii) a statutory body; (iv) an instrumentality or agency of the State; (v) a company which is financed and owned by the State; (vi) a private body run substantially on State funding; (vii) a private body discharging a public duty or positive obligation of public nature; and (viii) a person or a body under liability to discharge any function under any statute with compulsion to perform a statutory function. The writ petition was not held maintainable merely because the Bank was incorporated under the Companies Act and otherwise governed by regulatory provisions such as the Industries (Development and Regulation) Act, 1951. The Supreme Court of India did not find State dominance or control over the affairs of the company., Such private companies would normally not be amenable to the writ jurisdiction under Article 226 of the Constitution. But in certain circumstances a writ may issue to such private bodies or persons as there may be statutes which need to be complied with by all concerned including the private companies. For example, there are certain legislations like the Industrial Disputes Act, the Minimum Wages Act, the Factories Act or statutes for maintaining proper environment such as the Air (Prevention and Control of Pollution) Act, 1981 or the Water (Prevention and Control of Pollution) Act, 1974, etc., which fasten certain duties and responsibilities statutorily upon such private bodies which they are bound to comply with. If they violate such a statutory provision a writ would certainly be issued for compliance with those provisions. For instance, if a private employer dispenses with the service of its employee in violation of the provisions contained under the Industrial Disputes Act, the High Court of Uttar Pradesh has interfered and issued writs to private bodies and companies in that regard. However, the difficulty in issuing a writ may arise where there is no non‑compliance with or violation of any statutory provision by the private body. In that event a writ may not be issued at all and other remedies may have to be resorted to., The six factors enumerated in the case of Ajay Hasia (Ajay Hasia v. Khalid Mujib Sehravardi, (1981) 1 Supreme Court Cases 722 : 1981 SCC (L&S) 258) and approved in later decisions in the case of Ramana (Ramana Dayaram Shetty v. International Airport Authority of India, (1979) 3 Supreme Court Cases 489) and the seven‑Judge Bench in the case of Pradeep Kumar Biswas [(2002) 5 Supreme Court Cases 111 : 2002 SCC (L&S) 633] may be applied to the facts of the present case to see whether those tests apply to the appellant Bank. As indicated earlier, the share capital of the appellant Bank is not held at all by the Government nor is any financial assistance provided by the State to meet almost the entire expenditure of the company. The third factor is also not answered since the appellant Bank does not enjoy any monopoly status nor can it be said to be an institution having State protection. The Bank is managed by a Board of Directors elected by its shareholders. No governmental agency or officer is connected with the affairs of the Bank nor is any one of them a member of the Board of Directors. In the normal functioning of the private banking company there is no participation or interference of the State or its authorities. The statutes have been framed regulating the financial and commercial activities so that fiscal equilibrium may be kept maintained and not get disturbed by the malfunctioning of such companies or institutions involved in the business of banking. These are regulatory measures for the purpose of maintaining a healthy economic atmosphere in the country. Such regulatory measures are provided for other companies as well as industries manufacturing goods of importance. Otherwise these are purely private commercial activities. It hardly makes any difference that such supervisory vigilance is kept by the Reserve Bank of India under a statute or the Central Government. Even if it were the Central Government in place of the Reserve Bank of India it would not have made any difference; therefore, the argument based on the decision of All India Bank Employees' Association [AIR 1962 SC 171 : (1962) 3 SCR 269] does not advance the case of the respondent. It is only in case of malfunctioning of the company that occasion to exercise such powers arises to protect the interest of the depositors, shareholders or the company itself or to help the company to be out of the woods.
id_513	1	In times of normal functioning such occasions do not arise except for routine inspections with a view to see that things are moved smoothly in keeping with fiscal policies in general. There are a number of such companies carrying on the profession of banking. There is nothing which can be said to be close to the governmental functions. It is an old profession in one form or the other carried on by individuals or by a group of them. Losses incurred in the business are theirs as well as the profits. Any business or commercial activity, maybe banking, manufacturing units or related to any other kind of business generating resources, employment, production and resulting in circulation of money are no doubt such which do have impact on the economy of the country in general. But such activities cannot be classified as falling in the category of discharging duties or functions of a public nature. Thus the case does not fall in the fifth category of cases enumerated in the case of Ajay Hasia (Ajay Hasia v. Khalid Mujib Sehravardi, (1981) 1 Supreme Court Cases 722 : 1981 Law Reports (Supreme Court) 258). Again we find that the activity which is carried on by the appellant is not one which may have been earlier carried on by the Government and transferred to the appellant company. For the sake of argument, even if it may be assumed that one or the other test as provided in the case of Ajay Hasia may be attracted, that by itself would not be sufficient to hold that it is an agency of the State or a company carrying on the functions of public nature. In this connection, observations made in the case of Pradeep Kumar Biswas (2002) 5 Supreme Court Cases 111 : 2002 Law Reports (Supreme Court) 633 quoted earlier would also be relevant., We may now consider the two decisions i.e. Andi Mukta (1989) 2 Supreme Court Cases 691 and U.P. State Cooperative Land Development Bank Ltd. (1999) 1 Supreme Court Cases 741 : 1999 Law Reports (Supreme Court) 389 : All India Reporter 1999 Supreme Court 753. The decision in the case of U.P. State Cooperative Land Development Bank Ltd. stands entirely on a different footing and we have elaborately discussed it earlier., The other case which has been heavily relied upon is Andi Mukta (1989) 2 Supreme Court Cases 691. It is held that a mandamus can be issued to any person or authority performing public duty, owing positive obligation to the affected party. The writ petition was held to be maintainable since the teacher whose services were terminated by the institution was affiliated to the university and was governed by the ordinances, casting certain obligations which it owed to that petitioner. But it is not the case here. Our attention has been drawn by the learned counsel for the appellant to paragraphs 12, 13 and 21 of the decision Andi Mukta (1989) 2 Supreme Court Cases 691 to indicate that even according to this case no writ would lie against the private body except where it has some obligation to discharge which is statutory or of public character., The issue was again considered by the Supreme Court of India in the case of K.K. Saksena where, after elaborate discussion of the issue, a difference between private law and public law was made. A controversy under private law is held to be a part of the legal system under common law depending on an individual's relationship which may be under contract law or law of torts, etc. The writ petition involving a question under private or common law would not be maintainable even if an authority or a person is discharging public duty or public function. It was held that if a writ petition is brought against an authority or a person discharging public duty or public function, it would be maintainable if an element of public law is involved. A writ petition involving a question under common law, i.e., arising out of the contract between the parties or a relationship involving a dispute under private law would not be maintainable. The word public law has been elaborately discussed and defined in the said judgment and is the governing factor to answer the question referred by the learned Single Judge in this case., According to the judgment of the Supreme Court of India in the case of K.K. Saksena, a twin test is to be satisfied for maintainability of the writ petition under Article 226 of the Constitution of India. The writ petition would be maintainable against an authority or person only when it is discharging public duty or public function and the matter pertains to public law. Merely because an authority or a person is discharging public function or public duty would not be amenable to writ jurisdiction unless the action challenged falls under the domain of public law. A dispute arising out of contract or under the common law would not make a writ maintainable., The relevant paragraphs of the judgment in K.K. Saksena are quoted hereunder: Within a couple of years of the framing of the Constitution, the Supreme Court of India remarked in Election Commission of India v. Saka Venkata Rao (All India Reporter 1953 Supreme Court 210) that administrative law in India has been shaped in the English mould. Power to issue a writ or any order of direction for any other purpose has been held to be included in Article 226 of the Constitution with a view to place all the High Courts in this country in a position similar to the Court of the King's Bench in England. For this reason ordinary private law remedies are not enforceable through extraordinary writ jurisdiction, even though brought against public authorities (see Administrative Law, 8th Edn., H.W.R. Wade and C.F. Forsyth, p. 656). In a number of decisions, the Supreme Court of India has held that contractual and commercial obligations are enforceable only by ordinary action and not by judicial review., On the other hand, even if a person or authority does not come within the sweep of Article 12 of the Constitution, but is performing public duty, a writ petition can lie and a writ of mandamus or appropriate writ can be issued. However, as noted in Federal Bank Ltd. v. Sagar Thomas (2003) 10 Supreme Court Cases 733, such a private body should either run substantially on State funding or discharge public duty or positive obligation of public nature or be under liability to discharge any function under any statute, to compel it to perform such a statutory function., In the present case, since ICID is not funded by the Government nor is it discharging any function under any statute, the only question is whether it is discharging public duty or positive obligation of public nature., It is clear from the reading of the impugned judgment that the High Court was fully conscious of the principles laid down in the aforesaid judgments, cognizance whereof is duly taken by the High Court. Applying the test in the case at hand, namely that of ICID, the High Court opined that it was not discharging any public function or public duty, which would make it amenable to the writ jurisdiction of the High Court under Article 226. The discussion of the High Court is contained in paragraphs 34 to 36 and is reproduced for appreciation: K.K. Saksena v. International Commission on Irrigation and Drainage, 2011 SCC OnLine Del 1894 : (2011) 180 DLT 204. On a perusal of the preamble and the objects, it is clear as crystal that the respondent has been established as a scientific, technical, professional and voluntary non‑governmental international organisation, dedicated to enhancing the worldwide supply of food and fibre for all people by improving water and land management and the productivity of irrigated and drained lands so that there is appropriate management of water, environment and the application of irrigation, drainage and flood control techniques. The functions carried out by ICID are not similar to or closely related to those performable by the State in its sovereign capacity. ICID is fundamentally engaged in collection of data, research, holding of seminars and organising studies, promotion of development and systematic management of sustained irrigation and drainage systems, publication of newsletters, pamphlets and bulletins, and its role extends beyond the territorial boundaries of India. Membership extends to participating countries and, as the bye‑law reveals, ICID encourages participation of interested national and non‑member countries on certain conditions., As has been held in Federal Bank Ltd. v. Sagar Thomas (2003) 10 Supreme Court Cases 733, solely because a private company carries on banking business, it cannot be said that it would be amenable to the writ jurisdiction. The Supreme Court of India has opined that the provisions of the Banking Regulation Act and other statutes have a regulatory measure to play. The activities undertaken by the respondent Society, a non‑governmental organisation, do not actually partake of the nature of public duty or State actions. There is an absence of public element as has been stated in V.R. Rudani (Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust v. V.R. Rudani, (1989) 2 Supreme Court Cases 691) and Sri Venkateswara Hindu College of Engineering (K. Krishnamacharyulu v. Sri Venkateswara Hindu College of Engineering, (1997) 3 Supreme Court Cases 571 : 1997 Law Reports (Supreme Court) 841). It also does not discharge duties having a positive public character. It carries on voluntary activities which many non‑governmental organisations perform. The activities cannot be stated to be remotely connected with the activities of the State. On scrutiny of the Constitution and bye‑laws, it is difficult to hold that the respondent Society has an obligation to discharge certain activities which are statutory or of public character. The concept of public duty cannot be construed in a vacuum. A private society, in certain cases, may be amenable to the writ jurisdiction if the writ court is satisfied that it is necessary to compel such society or association to enforce any statutory obligation or obligations of public nature casting a positive public obligation upon it., As we perceive, the only object of ICID is to promote the development and application of certain aspects, which have been voluntarily undertaken, but these activities cannot be said to make ICID carry on public duties to render it amenable to the writ jurisdiction under Article 226 of the Constitution. The issue was recently considered by the Supreme Court of India in the case of Ramakrishna Mission. In that judgment, the Supreme Court of India elaborately discussed earlier judgments. The writ petition was not found maintainable against the mission merely because it is running a hospital, thus discharging public function or public duty. Although land was allotted by the State on concessional price and the Mission received aid, the aid was not sufficient to meet the expenditure incurred by the Mission. The Supreme Court of India considered the issue in reference to the element of public function which should be akin to the work performed by the State in its sovereign capacity. In light of that judgment, every public function or public duty would not make a writ petition maintainable against an authority or a person referred to under Article 226 of the Constitution of India unless the functions are akin to the functions of the State or are sovereign in nature. Relevant paragraphs of that judgment are quoted for ready reference: The basic issue before the Supreme Court of India is whether the functions performed by the hospital are public functions, on the basis of which a writ of mandamus can lie under Article 226 of the Constitution. The hospital is a branch of the Ramakrishna Mission and is subject to its control. The Mission was established by Swami Vivekananda, the foremost disciple of Shri Ramakrishna Paramahansa. Service to humanity is for the organisation co‑equal with service to God as reflected in the motto Atmano Mokshartham Jagad Hitaya Cha. The main object of the Ramakrishna Mission is to impart knowledge and promote the study of Vedanta and its principles propounded by Shri Ramakrishna Paramahansa and practically illustrated by his own life, and of comparative theology in its widest form. Its objects include, inter alia, to establish, maintain, carry on and assist schools, colleges, universities, research institutions, libraries, hospitals and to take up development and general welfare activities for the benefit of the under‑privileged, backward and tribal people of society without any discrimination. These activities are voluntary, charitable and non‑profit‑making in nature. The activities undertaken by the Mission, a non‑profit entity, are not closely related to those performed by the State in its sovereign capacity nor do they partake of the nature of a public duty., The Governing Body of the Mission is constituted by members of the Board of Trustees of Ramakrishna Math and is vested with the power and authority to manage the organisation. The properties and funds of the Mission and its management vest in the Governing Body. Any person can become a member of the Mission if elected by the Governing Body. Members on roll form the quorum of the annual general meetings. The Managing Committee comprises members appointed by the Governing Body for managing the affairs of the Mission. Under the Memorandum of Association and Rules and Regulations of the Mission, there is no governmental control in the functioning, administration and day‑to‑day management of the Mission. The conditions of service of the employees of the hospital are governed by service rules framed by the Mission without intervention of any governmental body., In concluding that the appellants fell within the description of an authority under Article 226, the High Court placed considerable reliance on the judgment of a two‑Judge Bench of the Supreme Court of India in Andi Mukta (Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust v. V.R. Rudani, (1989) 2 Supreme Court Cases 691). Andi Mukta was a case where a public trust was running a college affiliated to Gujarat University, a body governed by State legislation. The teachers of the University and its affiliated colleges were governed, insofar as their pay scales were concerned, by the recommendations of the University Grants Commission. A dispute over pay scales raised by the association representing the teachers had been the subject‑matter of an award of the Chancellor, which was accepted by the government as well as by the University. The management of the college decided to close it down without prior approval. A writ petition was instituted before the High Court for enforcement of the right of the teachers to receive their salaries and terminal benefits in accordance with the governing provisions. In that context, the Supreme Court of India dealt with the issue as to whether the management of the college was amenable to the writ jurisdiction. Several circumstances weighed in the ultimate decision of the Supreme Court of India, including the following:, The trust was managing an affiliated college. The college was in receipt of government aid. The aid of the government played a major role in the control, management and work of the educational institution. Aided institutions, in a similar manner as government institutions, discharge a public function of imparting education to students. All aided institutions are governed by the rules and regulations of the affiliating University. Their activities are closely supervised by the University. Employment in such institutions is not devoid of a public character and is governed by decisions taken by the University which are binding on the management., It was in the above circumstances that the Supreme Court of India concluded that the service conditions of the academic staff do not partake of a private character, but are governed by a right‑duty relationship between the staff and the management. A breach of the duty would be amenable to the remedy of a writ of mandamus. While the Supreme Court of India recognised that the fast‑expanding maze of bodies affecting rights of people cannot be put into watertight compartments, it laid down two exceptions where the remedy of mandamus would not be available: If the rights are purely of a private character, no mandamus can issue. If the management of the college is purely a private body with no public duty, mandamus will not lie., Following the decision in Andi Mukta, the Supreme Court of India has revisited the underlying principles in successive decisions. This has led to the evolution of principles to determine what constitutes a public duty and public function and whether the writ of mandamus would be available to an individual who seeks to enforce her right., A similar view was taken in Ramesh Ahluwalia v. State of Punjab (2012) 12 Supreme Court Cases 331 : (2013) 3 Law Reports (Supreme Court) 456 : 4 Supreme Court Cases (Environmental) 715, where a two‑Judge Bench of the Supreme Court of India held that a private body can be held amenable to the jurisdiction of the High Court under Article 226 when it performs public functions which are normally expected to be performed by the State or its authorities., In Federal Bank Ltd. v. Sagar Thomas (2003) 10 Supreme Court Cases 733, the Supreme Court of India analysed earlier judgments and provided a classification of entities against whom a writ petition may be maintainable: From the decisions referred to above, the position that emerges is that a writ petition under Article 226 of the Constitution of India may be maintainable against (i) the State (Government); (ii) an authority; (iii) a statutory body; (iv) an instrumentality or agency of the State; (v) a company which is financed and owned by the State; (vi) a private body run substantially on State funding; (vii) a private body discharging public duty or positive obligation of public nature; and (viii) a person or a body under liability to discharge any function under any statute, to compel it to perform such a statutory function., In Binny Ltd. v. V. Sadasivan (2005) 6 Supreme Court Cases 657 : 2005 Law Reports (Supreme Court) 881, a two‑Judge Bench of the Supreme Court of India noted the distinction between public and private functions. It held that it is difficult to draw a line between public functions and private functions when they are being discharged by a purely private authority. A body is performing a public function when it seeks to achieve some collective benefit for the public or a section of the public and is accepted by the public as having authority to do so. Bodies therefore exercise public functions when they intervene or participate in social or economic affairs in the public interest., The Bench elucidated on the scope of mandamus: However, the scope of mandamus is limited to enforcement of public duty. The scope of mandamus is determined by the nature of the duty to be enforced, rather than the identity of the authority against whom it is sought. If the private body is discharging a public function and the denial of any right is in connection with the public duty imposed on such body, the public law remedy can be enforced. The duty cast on the public body may be either statutory or otherwise and the source of such power is immaterial, but there must be a public law element in such action. There cannot be any general definition of public authority or public action. The facts of each case decide the point., More recently in K.K. Saksena v. International Commission on Irrigation & Drainage (2015) 4 Supreme Court Cases 119, another two‑Judge Bench of the Supreme Court of India held that a writ would not lie to enforce purely private law rights. Consequently, even if a body is performing a public duty and is amenable to the exercise of writ jurisdiction, all its decisions would not be subject to judicial review. The Court held that if a person or authority is a State within the meaning of Article 12 of the Constitution, a writ petition under Article 226 would lie against such a person or body. However, even in such cases writ would not lie to enforce private law rights., Thus, even if the body discharges a public function in a wider sense, there is no public law element involved in the enforcement of a private contract of service., Having analysed the circumstances relied upon by the State of Arunachal Pradesh, we are of the view that in running the hospital, Ramakrishna Mission does not discharge a public function. Undoubtedly, the hospital receives some grant. The grants cover only a part of the expenditure. The terms of the grant do not indicate any form of governmental control in the management or day‑to‑day functioning of the hospital. The nature of the work rendered by Ramakrishna Mission, including its activities concerning the hospital, is purely voluntary., Before an organisation can be held to discharge a public function, the function must be of a character closely related to functions performed by the State in its sovereign capacity. There is nothing on record to indicate that the hospital performs functions akin to those solely performed by State authorities. Medical services are provided by private as well as State entities. The character of the organisation as a public authority depends on the circumstances of the case. In setting up the hospital, the Mission cannot be construed as having assumed a public function. The hospital has no monopoly status conferred or mandated by law. Being the first in the State to provide a particular service does not make it an authority within the meaning of Article 226. State Governments provide concessional terms to various organisations to attract them to set up establishments within the State. The mere fact that land was provided on a concessional basis would not, by itself, lead to the conclusion that the hospital performs a public function. In the present case, the absence of State control in the management of the hospital has a significant bearing on the conclusion that the hospital does not come within the ambit of a public authority., It has been submitted that the hospital is subject to regulation by the Clinical Establishments (Registration and Regulation) Act, 2010. Regulation by a statute does not make the hospital a statutory body. Private individuals and organisations are subject to diverse obligations under the law. From registration of birth to reporting of death, law imposes obligations on various aspects of life. From incorporation to dissolution, business must act in compliance with law. But that does not make every entity an authority under Article 226. Regulation by a statute does not constitute the hospital as a body constituted under the statute. Individuals and organisations are subject to statutory requirements in many activities, but that alone cannot determine whether such an individual or organisation discharges a public function. In Federal Bank Ltd. v. Sagar Thomas (2003) 10 Supreme Court Cases 733, while deciding whether a private bank regulated by the Banking Regulation Act, 1949 discharges any public function, the Court held that a private company carrying on banking business as a scheduled bank cannot be termed as an institution or a company carrying on any statutory or public duty., Thus, contracts of a purely private nature would not be subject to writ jurisdiction merely because they are structured by statutory provisions. The only exception arises where the contract of service is governed or regulated by a statutory provision. For instance, in K.K. Saksena (2015) 4 Supreme Court Cases 670 : (2015) 2 Supreme Court Cases (Civil) 654 : (2015) 2 Law Reports (Supreme Court) 119, the Supreme Court of India held that when an employee is a workman governed by the Industrial Disputes Act, 1947, it constitutes an exception to the general principle that a contract of personal service is not capable of being specifically enforced or performed., It is relevant to note that the Act was enacted to provide for the regulation and registration of clinical establishments with a view to prescribe minimum standards of facilities and services. The Act, inter alia, stipulates conditions to be satisfied by clinical establishments for registration. However, the Act does not govern contracts of service entered into by the hospital with respect to its employees. These fall within the ambit of purely private contracts, against which writ jurisdiction cannot lie. The sanctity of this distinction must be preserved. In light of the judgments referred to above, it is not difficult to answer the questions framed by the learned Single Judge. We are not elaborately discussing the judgments of the Larger Bench of the Supreme Court of India because the recent judgment of the Supreme Court of India covers the issue. Thus, the questions can be answered with clarity though the earlier decision of the Larger Bench of the Supreme Court of India in the case of Roychan Abraham is also based on the judgment of the Supreme Court of India referred to in this order., The substance of the discussion above is that a writ petition would be maintainable against the authority or person, even if it is a private body, if it discharges a public function or public duty, which is a primary function of the State as referred to in the judgment of the Supreme Court of India in the case of Ramakrishna Mission, and the issue under public law is involved. The twin test must be satisfied for entertaining a writ petition under Article 226 of the Constitution of India.
id_513	2	From the discussion aforesaid and in the light of the judgments referred above, a writ petition under Article 226 of the Constitution would be maintainable against the Government, an authority, a statutory body, an instrumentality or agency of the State, a company which is financed and owned by the State, a private body run substantially on State funding, a private body discharging public duty or positive obligation of public nature, and a person or a body liable to discharge any function under any statute, to compel it to perform such a statutory function. There is a thin line between public functions and private functions discharged by a person or a private body or authority. The writ petition would be maintainable only after determining the nature of the duty to be enforced by the body or authority rather than identifying the authority against which it is sought., It is also that even if a person or authority is discharging a public function or public duty, the writ petition would be maintainable under Article 226 of the Constitution if the High Court is satisfied that the action under challenge falls in the domain of public law, as distinguished from private law. The twin tests for maintainability of a writ are as follows: the person or authority is discharging a public duty or public function, and the action under challenge falls in the domain of public law and not under common law. The writ petition would not be maintainable against an authority or a person merely because it has been created under a statute or is governed by regulatory provisions, nor merely because aid is received unless such aid is substantial in nature. Control of the State is another issue to hold a writ petition maintainable against an authority or a person. If the writ petition refers to contractual obligations inter se between the parties, it would not be maintainable., Accordingly, the twin test, as suggested by us in this judgment, must be satisfied for maintainability of the writ petition after taking notice of the findings and observations made by us in reference to the nature of the authority or person. The remedy under Article 226 of the Constitution of India would be available against an authority or a person only when the twin tests are satisfied. The authority or the person should not only discharge a public function or public duty but the action challenged must fall in the domain of public law. The writ petition would not be maintainable against an authority or person even if it is discharging a public function or public duty, if the controversy pertains to private law such as a dispute arising out of contract or under the common law. The judgment of this High Court in the case of Rajesh Kumar Srivastava (supra) is not against the ratio pronounced by the larger Bench in the case of Roychan Abraham (supra); rather it has followed the judgment of the Supreme Court in the case of K. K. Saksena (supra). Since the questions have been answered by the larger Bench, the Registry is directed to place this order before the learned Single Judge where the writ petition is pending for hearing.
id_514	0	This writ petition, under Article 226 of the Constitution of India, is at the instance of Rahul alias Golu, son of Naresh Rahora, resident of Tahsil Pichhore, District Shivpuri, Madhya Pradesh, seeking a writ of certiorari for quashment of the order dated 06/09/2021 (Annexure P/1) passed by respondent No.3 whereby the corpus Ms. Hina Khan, daughter of Istaq Khan, also resident of Tahsil Pichhore, District Shivpuri, Madhya Pradesh, is kept at Swadhar Greh, Morena, a Government‑run temporary residential accommodation. The petitioner also seeks a writ of habeas corpus for the production of the corpus before the Madhya Pradesh High Court to ascertain her willingness, as she is a major and the petitioner wishes to keep her with him., On 02/12/2021, a co‑ordinate Bench of the Madhya Pradesh High Court issued notice to respondent No.5, returnable in one week, while the learned Additional Advocate General accepted notice for respondents Nos.1 to 4. The petitioner alleges that he ran away with Ms. Hina Khan from Shivpuri and that Ms. Hina Khan converted her religion from Muslim to Hindu at Arya Samaj Vivah Mandir Trust, K‑Block Market, Kavinagar, Ghaziabad, Uttar Pradesh, with a certificate of conversion issued on 17/09/2019 (Annexure P/3) and that they were married at the same Vivah Mandir on 17/09/2019 (Annexure P/4). During the hearing on 10/01/2022, the Vivah Mandir was found to be a necessary party. Counsel Shri S.N. Seth undertook to implead the Vivah Mandir as a party and to pay the process fee, but on 18/01/2022 he pleaded that he had no instructions. Shri M.P.S. Raghuvanshi submitted that conversion activities are not carried out in temples, constitute a serious matter, and may threaten peace and order; consequently, the Madhya Pradesh High Court may invoke suo motu jurisdiction and issue notice to the Vivah Mandir. The office was directed to issue such notice, and the Vivah Mandir was added as respondent No.6., On 16/06/2022, the Madhya Pradesh High Court framed twelve issues for consideration: (1) Whether a self‑styled Trust registered as Arya Samaj Vivah Mandir Trust can solemnise marriage between a Hindu boy and a Muslim girl; (2) Whether the Trust has authority in law to issue a marriage certificate; (3) Whether the Trust’s aims and objects permit such activities; (4) Whether the bylaws of the Trust are duly ratified by the Registrar of Public Trusts or any other Act; (5) Whether a mere declaration on an affidavit can convert the religion of a Muslim girl to Hindu; (6) Whether respondent No.6 is competent to issue a certificate of conversion; (7) Whether the Trust can accept an affidavit without verification and issue a marriage certificate; (8) Whether the affidavit of Ms. Hina Khan, resident of House No.34, Ward No.9, Mohalla Pichhore, Shivpuri, Madhya Pradesh, sworn before the President/Secretary of Arya Samaj Vivah Mandir Trust, has evidentiary value; (9) Whether the Trust can be held to be an Arya Samaj Mandir solely for solemnisation of marriage without affiliation to the State/National Arya Samaj body; (10) Whether seeking declaration of conversion and subsequent marriage amounts to an illegal activity with penal consequences; (11) Whether such vulnerable activity impacts public order and social fabric; and (12) Whether an extensive inquiry by a senior police official is warranted into the conduct of the alleged Arya Samaj Vivah Mandir Trust, Ghaziabad., The Madhya Pradesh High Court appointed Shri Faisal Ali Shah, an advocate of prominence, as amicus curiae to assist the Court on the framed questions, with reference to relevant literature and recitals of the Holy Qur’an. The learned Additional Advocate General, Shri M.P.S. Raghuvanshi, brought to the Court’s notice an order of the Division Bench of the Allahabad High Court dated 30/05/2022 in Criminal Miscellaneous Writ Petition No. 5180 of 2022, which ordered a high‑level enquiry into similar vulnerable activities involving Arya Samaj Vivah Mandirs. He highlighted that hundreds of indiscriminate marriage certificates are issued by such marriage shops without verification of age, identity, or whereabouts, and prayed for a high‑level enquiry into the affairs of respondent No.6. The Madhya Pradesh High Court deferred the hearing at the request of counsel for respondent No.6, Shri Balwant Singh Bilowria, to enable him to seek instructions., Respondent No.6/Vivah Mandir filed a counter‑affidavit, and written submissions were filed by Shri Faisal Ali Shah, amicus curiae. The factual matrix, as pleaded in the writ petition, indicates that besides conversion and marriage, a missing‑person report was lodged on 17/09/2019 by respondent No.5 at Police Station Pichhore, District Shivpuri, registered as Crime No. 382/2019 for offences punishable under sections 363, 366 and 376 of the Indian Penal Code and sections 5 and 6 of the Protection of Children from Sexual Offences Act, 2012. The corpus was later recovered. Ms. Hina Khan filed a writ petition (W.P. No. 20131/2019) seeking protection. The Single Bench on 24/09/2019 disposed of the petition directing that, should the petitioner appear before the Superintendent of Police, Shivpuri, necessary steps would be taken after verifying her age and the fact of marriage. Accordingly, Ms. Hina Khan and the petitioner appeared before the Superintendent, filed a representation, and Ms. Hina gave her statement. She also appeared before the Judicial Magistrate First Class, Pichhore, stating that she had gone to Delhi with the petitioner on 16/09/2019, then to Ghaziabad, where they solemnised marriage at the Arya Samaj Mandir. After her recovery, due to the conversion and marriage certificates, she was produced before the Additional District Magistrate (also Mukhya Sanchetak, One Stop Centre, Shivpuri). He counselled her to return with her parents; she refused and was sent to the One Stop Centre and subsequently to Swadhar Greh, Morena. The petitioner now seeks quashment of the order and production of Ms. Hina Khan before the Madhya Pradesh High Court to ascertain her willingness., In the counter‑affidavit filed by respondent No.6, a preliminary objection of lack of territorial jurisdiction was raised, contending that the conversion certificate (Annexure P/3) and marriage certificate (Annexure P/4) were issued by respondent No.6/Vivah Mandir located in Ghaziabad, Uttar Pradesh, and therefore no cause of action arose within the territorial limits of the Madhya Pradesh High Court under Article 226 of the Constitution of India. Oral submission asserted that respondent No.6 is a Trust registered under the Indian Trust Act, 1882. It was further submitted that Ms. Hina Khan, being a major, is free to profess and practice any religion under Article 25 of the Constitution of India. She had submitted an affidavit (Annexure R/4) before the President/Secretary of respondent No.6 Trust that she had converted to Hindu religion and intended to marry the petitioner of her own free will; based on this affidavit, the conversion and marriage certificates were issued. Clause O of the Trust’s aims and objects entitles it to arrange marriage ceremonies according to Vedic and Hindu rites, and the counsel for respondent No.6 prayed that no fault can be found in the conversion or the issuance of the certificates., Shri M.P.S. Raghuvanshi, learned Additional Advocate General, made the following submissions: (1) The petitioner and Ms. Hina Khan are residents of Tahsil Pichhore, District Shivpuri, Madhya Pradesh; the challenge is to the order of the Additional District Magistrate dated 06/09/2021 (Annexure P/1). An FIR was registered at Police Station Pichhore on 17/09/2019 (Crime No. 382/2019). The conversion and marriage certificates were issued by respondent No.6. Under Article 226(2), the Madhya Pradesh High Court may exercise jurisdiction as a substantial part of the cause of action arises within its territorial limits. (2) The photocopy of the alleged Trust Deed (Annexure R/1) does not disclose under which Act the Trust is registered; there is no registration certificate. The claim of registration under the Indian Trust Act, 1882, is therefore misconceived. (3) The Vivah Mandir/respondent No.6 has no legal authority to issue conversion or marriage certificates; the Trust deed does not provide for conversion of religion. (4) The Madhya Pradesh Dharma Swatantrya Adhiniyam, 1968 defines conversion and mandates that any person who converts another must intimate the District Magistrate within a prescribed period; failure attracts penal consequences under section 5 and sub‑section (2). No such intimation was given by respondent No.6, making it liable for penal action. Similar provisions exist in the Madhya Pradesh Freedom of Religion Act, 2021 (section 10) and the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Act, 2021. (5) The Supreme Court judgment in Seema (Smt.) v. Ashwani Kumar ((2008) 1 SCC 180) makes compulsory registration of marriages mandatory; Uttar Pradesh Hindu Marriage Registration Rules, 1973 and Madhya Pradesh Compulsory Registration of Marriages Rules, 2008 prescribe such registration. (6) The Arya Marriage Validation Act, 1937 validates marriage only between two Arya Samajists, which is not applicable here. (7) The acts constitute fraud and mis‑representation, a public wrong, and are liable under section 464 of the Indian Penal Code. (8) Marriage certificates may be issued only by authorities competent under the Special Marriage Act or the Compulsory Registration of Marriages Rules; respondent No.6 is not so empowered. Reference was made to the Division Bench order dated 17/12/2021 in W.A. No. 95 of 2021 and the Supreme Court interim order of 04/04/2022., Guidelines 8, 9 and 13 set out in pages 34 to 40 (Annexure P‑5) state: (8) Marriage ceremony shall be solemnised by Shaptpadi according to the Vedic system; (9) Information regarding every solemnised marriage must be sent in writing to the Madhya Bhartiya Arya Pratinidhi Sabha within seven days; (13) Many persons operate shops in the name of Arya Samaj without adhering to its ideology or affiliation. There is no record that respondent No.6 is affiliated with or recognised by the Madhya Bhartiya Arya Pratinidhi Sabha, nor that condition 9 has been complied with. Consequently, the impugned marriage certificate is contrary to the Supreme Court interim order and is illegal. The conversion certificate (Annexure P/3) and marriage certificate (Annexure P/4) are beyond any authority of law and are liable to be set aside., Shri Faisal Ali Shah, learned amicus curiae, while adopting the submissions of the Additional Advocate General, submitted that respondent No.6/Vivah Mandir has no authority in law to issue conversion certificates or to solemnise marriage. The Trust deed (Annexure R/1) shows that the Trust lacks bylaws or any power to conduct conversions, issue certificates, or perform marriages; therefore, the act is inculpatory under section 9 of the Indian Penal Code. The Court heard counsel for the parties., Before addressing the point in issue, the Madhya Pradesh High Court considered the preliminary objection raised by counsel for respondent No.6 regarding territorial jurisdiction under Article 226 of the Constitution. Article 226(2) provides that a High Court may exercise jurisdiction if any part of the cause of action arises within its territory, even if the seat of the authority or residence of the person is outside that territory. The petitioner and Ms. Hina Khan are residents of Pichhore, District Shivpuri; an FIR was lodged there; their statements indicate that the marriage and conversion occurred at respondent No.6 in Ghaziabad. The Additional District Magistrate’s order dated 06/09/2021 sent Ms. Hina Khan to Swadhar Greh, Morena. The issuance of the conversion and marriage certificates constitutes a substantial part of the cause of action within the territorial limits of the Madhya Pradesh High Court, thereby granting the Court jurisdiction, as affirmed by the Supreme Court in Alchemist Ltd. and another v. State Bank of Sikkim and others ((2007) 11 SCC 335)., In the present case, respondent No.6/Vivah Mandir issued conversion certificate (Annexure P/3) and marriage certificate (Annexure P/4). The Trust deed enumerates twelve aims and objects; only clause O, which allows arranging marriage ceremonies according to Vedic and Hindu rites, is remotely related. Issuing a conversion certificate is beyond the Trust’s aims, and the deed contains no bylaws empowering it to conduct conversions or issue certificates. The certificates were issued solely on the basis of Ms. Hina Khan’s affidavit without verification, despite a criminal case pending against the petitioner. This contravenes section 5 of the Madhya Pradesh Dharma Swatantrya Adhiniyam, 1968, which requires intimation to the District Magistrate. Clause O does not empower the Trust to perform or solemnise marriages; only authorities under the Special Marriage Act or the Compulsory Registration of Marriages Rules may issue marriage certificates. No evidence shows that the parties are Arya Samajists, rendering the marriage vulnerable under section 2 of the Arya Marriage Validation Act, 1937. Furthermore, there is no compliance with guideline 9 to inform the Madhya Bhartiya Arya Pratinidhi Sabha, nor any registration of the marriage under the Madhya Pradesh or Uttar Pradesh marriage registration rules. The Trust’s registration status remains unclear. Consequently, the conversion and marriage certificates are beyond any legal authority and are liable to be set aside.
id_514	1	As a matter of fact, the Indian Trust Act, 1882 begins with an exposition that it is an Act to define and amend the law relating to private trusts and trustees. Further, the Supreme Court of India in the case of Sheikh Abdul Kyum v. Mulla Alibhai (All India Reporter 1963 Supreme Court 309) has observed that section 1 of the Indian Trust Act makes the provisions of the Act inapplicable to public or private religious or charitable endowments., In the instant case, the objectives as declared in the trust deed (Annexure R/1) do not suggest that the trust falls within the domain of private trusts; rather it appears to be a religious endowment. As such, the trust deed appears suspicious and a serious question arises as to its existence in the eyes of law. In view of the aforesaid, the Supreme Court of India has no hesitation in holding that the conversion certificate (Annexure P/3) and marriage certificate (Annexure P/4) are without any authority of law and, hence, null and void. The activities of respondent No. 6, Vivah Mandir, tantamount to running marriage shops on commercial lines, are therefore vulnerable in the teeth of guideline 13 (Supra). The same constitute a serious threat to the sanctity attached to marriages recognized under personal laws, particularly the Hindu Marriage Act. Consequently, question numbers 1 to 9 formulated above are answered in the negative, while those numbered 10 to 12 are answered in the affirmative., At this juncture, it is imperative to observe that the nefarious activities of respondent No. 6 in converting people from one religion to another without any authority of law are not only detrimental to the social fabric and public order but also have the potential to trigger mass unrest which may result in communal tension and riotous activities affecting ease of life and communal harmony. Considering these factors and the sensitivity of the issue involved, the Supreme Court of India is constrained to exercise its extraordinary constitutional jurisdiction under Article 226 of the Constitution to check such situation and its recurrence in future at the hands of respondent No. 6. Looking to the nature of activities such as conversion of a Muslim girl to Hindu religion, found to be illegal and vulnerable in the public domain, the Senior Superintendent of Police, Ghaziabad is directed to conduct an investigation for verification of the existence and constitution of respondent No. 6, Vivah Mandir Trust, as well as its activities, methodology of functioning, books of accounts and records, if any, of the alleged activities. Thereafter, suitable corrective measures shall be taken as per law and, if need be, the enquiry report shall be forwarded to the competent authority under the relevant Trust Act to initiate action against the so‑called trust/respondent No. 6 in accordance with law., Before parting with the case, it is notable that, owing to the sensitivity of the issue, corpus Ms. Hina Khan has been kept at Swadhar Greh, Morena vide order dated 06/09/2021 (Annexure P/1) passed by the Additional District Magistrate and Mukhya Sanchetak One Stop Centre, Shivpuri. The Additional District Magistrate is directed to arrange for an in‑camera video‑graphed meeting of the corpus with her parents within one week from today and, thereafter, despite the meeting, if corpus Ms. Hina Khan, who is a major, still is not inclined to go with her parents, she shall be set free forthwith to go as per her wishes., With the aforesaid, this writ petition stands disposed of. We record our appreciation for the valuable assistance given by learned amicus curiae Shri Faisal Ali Shah. A copy of this order shall be sent to the Senior Superintendent of Police, Ghaziabad for strict compliance.
id_516	0	Mr. H.P. Randhir, Advocate for the applicant No.1; Mr. R.B. Bagul, Applicant for the respondent No.1; Mr. S.N. Dudhate, Advocate for the respondent No.2. Present application has been filed under the inherent powers of the High Court under Section 482 of the Code of Criminal Procedure, 1973, for quashing Criminal Miscellaneous Application No. 1027/2020 filed by the present respondent No.2 under Section 12 of the Protection of Women from Domestic Violence Act, 2005 before Judicial Magistrate First Class, Sillod, District Aurangabad for various reliefs under the said Act., It will not be out of place to mention here that the High Court by order dated 21 April 2022 showed disinclination to issue notices in respect of this application for applicant No.2 Asha, who is the mother-in-law. The application stood withdrawn in respect of applicant No.2. Therefore, the matter can be considered only against the applicant No.1, who is arrayed as respondent No.5 in the petition before the learned Judicial Magistrate., Heard learned Advocate Mr. H.P. Randhir for the applicant No.1, learned Applicant Mr. R.B. Bagul for the respondent No.1 and learned Advocate Mr. S.N. Dudhate for the respondent No.2., Perusal of the documents along with the petition shows that by order dated 10 April 2008 the respondent No.2 was appointed temporarily for the technical post of Stock Supervisor by the Chief Executive Officer, Zilla Parishad, Jalgaon and her posting was stated to be at village Kathora, Taluka Bhusawal. It also appears that the present applicant No.1 was married in the year 2007, but the respondent No.2 in her application before the learned Magistrate has not mentioned these facts. She has given the occupation of the respondent No.5 as Household, but her residential address has been stated as Veterinary Doctor, Bhusawal, Taluka Bhusawal, District Jalgaon (wrongly mentioned as District Bhusawal). Thus, there appears to be total suppression of the facts that the respondent No.5 was serving since prior to the marriage of the aggrieved person with respondent No.1 on 07 July 2020., It also appears from the copy of the ration card of the applicant No.1 that she resides in Pragati Building, Kulkarni Plot, near Mamaji Talkies in Bhusawal and she has two sons. This indicates that she was not residing in the shared household with the aggrieved persons. The allegations against the respondent No.5 are therefore not independent. It is stated that she, along with respondent Nos.1 to 4, caused alleged acts of domestic violence. When she herself gave the address of respondent Nos.1 to 4 as Wagholi, Pune and then gave the address of respondent No.5 as Bhusawal, it was incumbent upon the aggrieved person, i.e., the present respondent No.2, to satisfy as to what point of time the respondent No.5 and she herself were staying in the shared household after the marriage. When these basic pleadings are lacking and the documents on record support the address given by the aggrieved person of a different place, a case is made out to invoke the inherent powers of the High Court to quash the entire proceedings against the applicant No.1. When she cannot be arrayed as respondent, in view of the fact that she was residing at a different place and it was less likely that she would have caused any acts of domestic violence against the aggrieved person, respondent No.5 cannot be asked to face the proceedings., Time and again, the High Court as well as the Honourable Supreme Court has observed that it is a fashion to array all the relatives of the husband as respondents or to make them accused in a complaint under Section 498-A of the Indian Penal Code and it shows the misuse of the proceedings of law; still the instances have not reduced. Such relatives, who were never staying with the husband, cannot be asked to face the proceedings on stray statements about domestic violence. Therefore, the application deserves to be allowed., The application stands allowed. The proceedings in Criminal Miscellaneous Application No. 1027/2020 filed under Section 12 of the Protection of Women from Domestic Violence Act, 2005 for various reliefs before Judicial Magistrate First Class, Sillod, District Aurangabad stand quashed and set aside as against respondent No.5, present applicant No.1. (Smt. Vibha Kankanwadi, Judge).
id_517	0	Criminal Original Petition Nos. 20576 and 21967 of 2023. Petitioners: Selva Muthukumar, G. Greatwin P. Rayen, Mu Thupattan (in Criminal Original Petition No. 21967 of 2023) and P. Raja Shankar (in Criminal Original Petition No. 20576 of 2023). Respondent/Complainant: State represented by Inspector of Police, Yercaud Police Station, Salem District (Criminal Case No. 153 of 2023)., Common prayer in both cases: These Criminal Original Petitions are filed under Section 438 of the Criminal Procedure Code to grant anticipatory bail to the petitioners in the event of their arrest in connection with Crime No. 143 of 2023 on the file of the respondent police., For the petitioners: Mr. A. Ramesh, Senior Counsel for Mr. S. Rajkumar in Criminal Original Petition No. 20576 of 2023; Mr. C. Iyyapparaj for Criminal Original Petition No. 21967 of 2023. For the respondent: Mr. Leonard Arul Joseph Selvam, Government Advocate (Criminal Side) in both cases., The petitioner in Criminal Original Petition No. 20576 of 2023 is designated A.12 and the petitioners in Criminal Original Petition No. 21967 of 2023 are designated A.10, A.11 and A.14. They apprehend arrest by the respondent police for offences punishable under Sections 147, 148, 447, 294(b), 323, 324 of the Indian Penal Code and Section 3(2) of the Tamil Nadu Public Property (Prevention of Damage and Loss) Act., The prosecution case states that a retreat function was celebrated at Montfort Anglo Indian Higher Secondary School, Yercaud on 06‑08‑2023 and there was a rivalry between the 12th standard students and 10th standard students regarding which song should be played first. In the incident there was a push and pull. The 12th standard students trespassed into the hostel area of the 10th standard and had a quarrel. After learning of the incident, the principal informed the police of the concerned station and the student named Ritish went home with his brother Manikaraja. On 07‑08‑2023 at about 09:25 a.m., all the petitioners and other accused entered the school without permission, assaulted the watchman, entered the classroom while the class was in progress, causing injuries to students and teachers and damage to school property., The learned Senior Counsel for the petitioner in Criminal Original Petition No. 20576 of 2023 submitted that the first incident occurred on 06‑08‑2023 wherein 12th standard students attacked 10th standard students over the song selection for the school celebration, resulting in a clash in which ten persons were injured. The next day the school authorities informed the parents to take their children home to maintain calm. Subsequently, one of the injured persons along with others entered and ransacked the school office, leading to the registration of an FIR., The learned Senior Counsel further contended that the petitioner merely went to the school and did not commit any offence and therefore seeks to rely on CCTV footage. A petition for anticipatory bail had previously been filed and dismissed as withdrawn., The learned Government Advocate (Criminal Side) for the respondent police stated that there are a total of thirteen accused in this case, including A.1 and A.2 who are cousin brothers of the injured, and their friends, who allegedly entered and damaged the school office, uttered obscene words and misbehaved with the girl students therein. The Government Advocate has produced CCTV footage of the incidents inside the classroom and outside the building., The submissions of Mr. Ramesh, Senior Counsel for the petitioner in Criminal Original Petition No. 20576 of 2023, Mr. C. Iyyapparaj, counsel for the petitioner in Criminal Original Petition No. 21967 of 2023, and the learned Government Advocate (Criminal Side) were heard, and the CCTV footage presented by the Government Advocate was examined., The Government Advocate identified the petitioners in the CCTV footage., The dispute arose from the selection of a kuthu song for the retreat function conducted by the school, involving 10th and 12th standard boys. Whether it is appropriate to play such a song in the function is left to the conscience of the school authority. The High Court of Madras is inclined to grant anticipatory bail for all the petitioners, who are now studying in colleges., Accordingly, all the petitioners are ordered to be released on bail in the event of arrest or on their appearance, subject to the following conditions: (a) each petitioner shall appear before the Headmaster of Montfort Anglo Indian Higher Secondary School, Yercaud and execute a bond for a sum of Rs 1,000; (b) each petitioner shall clean and maintain at least four classrooms, including blackboard, tables, benches and floor, for one week; (c) each petitioner shall spend time in the school library and e‑library to prepare handwritten notes of not less than four pages on (i) non‑violation excerpts of Mahatma Gandhi, (ii) educational schemes promoted by former Chief Minister K. Kamaraj, and (iii) the dream and vision of Dr. A. P. J. Abdul Kalam; (d) the articles prepared shall be submitted to the school principal, who shall host them on the school website for one year; (e) the petitioners shall not copy‑paste material from the internet; (f) each petitioner shall deposit a sum of Rs 2,000 to the school account on or before 10‑10‑2023; and (g) the school principal shall report compliance of the above conditions to the High Court of Madras., Date: 29‑09‑2023.
id_518	0	Ambadi B., age 22 years, occupation Student, residing in Room No. 107, Hostel No. 4, Tata Institute of Social Sciences, Deonar, Mumbai – 88, is the applicant. The respondent is the State of Maharashtra at the instance of Police Station, Azad Maidan, Criminal Reference Number 28/2020. Appearance: Advocate for applicant – Mr. Vijay Hiremath. Advocate for respondent – Mrs. Rashmi Tendulkar, Additional Public Prosecutor. Dated: September 8, 2021., The applicant Ambadi B. is one of the accused persons in Criminal Reference Number 28 of 2020 registered with Azad Maidan Police Station under Sections 124A, 153B and 505 read with Section 34 of the Indian Penal Code. He is praying for protection under Section 438 of the Criminal Procedure Code by making the order dated 12 February 2020 absolute, which was passed by the Learned Predecessor, and interim protection was granted to the applicant by the Learned Predecessor. The same protection is continued till date., The prosecution, by Exhibit 2, a statement of the police officer of Azad Maidan Police Station, Mumbai, opposed the application, contending that investigation into the connection between the present applicant and Sherjil Imam is to be made and verified. The investigation should determine how many and which plans have been made by the applicant to affect the unity of the nation. There are other 50‑60 accused persons whose names and involvement in the crime are to be confirmed. On the basis of these grounds, custodial interrogation of the applicant is deemed necessary, and the application is to be rejected., This Honourable Committee directed this Court to clear all anticipatory bail applications wherein interim protection was granted. In this case, the Learned Predecessor, by his order dated 12 February 2020, granted interim protection to this accused, and the same is continued till date., The Learned Additional Sessions Judge heard Advocate Mr. Vijay Hiremath for the accused and Advocate Mrs. Rashmi Tendulkar at length. The Investigating Officer was also heard, and the record of investigation maintained by him was carefully examined. The following points arise for determination., The Learned Judge found that the accused has made out a strong prima facie case for making the order dated 12 February 2020 absolute. Accordingly, the application is allowed., One Ravindra Abasaheb Mohite, Assistant Police Inspector, Azad Maidan Police Station lodged an FIR alleging that the 'Queer Azadi' society had scheduled an awareness programme on health and human rights of sexual minority people. The programme was scheduled for 15:00 hours, and the informant was deputed for it. One Mr. Surabh Bondre had taken permission on 30 January 2020 for the programme. Accordingly, police personnel were deputed at the venue, where the informant was on duty. Around 03:00 p.m., 3000 members of the 'Queer Azadi' association gathered at the venue. There were many small groups, many of them giving slogans. At 06:00 p.m., the programme ended and all left the place., On 2 February 2020, while the informant was on duty, he learned from Twitter that a woman at the programme on 1 February 2020 at Azad Maidan had given slogans against the nation. A clip of the video was spread on social media. The woman was heard giving a slogan, which was responded in chorus by 50‑60 persons. All of them were clapping and supporting those slogans. It is further alleged that Sherjil Imam is involved in many crimes of sedition registered against him., The informant had watched a speech given by Sherjil Imam on the internet, which, according to him, reflected hate and attracted the offence of sedition. Consequently, Sherjil Imam was arrested by Delhi Police for the offence. The group of 50‑60 people, including a lady named Urvashi, were supporting Sherjil Imam and are alleged as accused. Further investigation revealed that the woman Urvashi resides at Old Camps, Ladies Hostel, Tata Institute of Social Sciences, V. N. Purav Marg, Deonar, Mumbai. The investigating agency obtained the opinion of the Assistant Director and the Public Prosecutor, Brihanmumbai, whether Section 124A can be levelled against the applicant and others. The authority gave an affirmative opinion. Therefore, according to the prosecution, the FIR is launched and the offences under Sections 124A, 153B and 505 read with Section 34 of the Indian Penal Code are serious, and the order of interim protection should be vacated and anticipatory bail rejected., The main allegations are against Urvashi Chudawala, whose anticipatory bail application was rejected by the Learned Predecessor. Urvashi Chudawala preferred Anticipatory Bail Application No. 342/2020 before the Honourable High Court, and interim protection was granted by the Honourable High Court on 11 February 2020., Careful perusal of the FIR indicates that it clearly mentions only one woman, Urvashi, giving slogans, and the group responded by clapping in chorus. The main accused Urvashi Chudawala is already enjoying the interim protection granted by the Honourable High Court. The FIR and the investigation file prima facie indicate that the informant watched the speech of Sherjil Imam on social media and concluded that this accused along with others are his supporters, hence committing the offence of sedition. There is nothing before the Court to hold that the present applicant was part of the assembly and gave anti‑nation slogans attributing sedition. The role of the present accused is not identical to the role of Urvashi., It is noted that since the Learned Predecessor granted interim protection one and a half years ago, the investigating agency has not initiated any proceedings to point out involvement of the accused in any other crime or any breach of the conditions of interim protection. Even the clip alleged to have become viral on Twitter, as mentioned in the FIR, has not been produced before the Court to ascertain the real circumstances. Therefore, in the opinion of the Learned Judge, the prosecution has failed to point out the role attributed to the present accused, and the offences under Sections 124A, 153B and 505 read with Section 34 of the Indian Penal Code are not established. The applicability of the sections can be examined at the stage of bail and anticipatory bail, but the record does not indicate an active role of the present accused in any of the offences mentioned in the FIR., Advocate Mr. Vijay Hiremath submitted that the applicant is from Kerala and cannot understand Hindi, which cannot be ignored. He is a student of Tata Institute of Social Sciences, aged 22 years, and his education is in progress. Arrest would have far‑reaching consequences and could spoil the career of the student forever. If the application is rejected, it will cause irreparable loss to the applicant. There is nothing before the Court to indicate involvement of the accused in the alleged offence. The role of the present accused is different from that of Urvashi. When the applicant is protected by an interim order for one and a half years, rejection of the application would further damage his career., Hence, the Learned Judge holds that the applicant has made out a strong prima facie case for confirming the interim protection order passed by the Learned Predecessor. Accordingly, the following order is passed: (1) Anticipatory Bail Application No. 277 of 2020 is allowed. (2) The interim order dated 12 February 2020 is hereby made absolute with all the conditions directed therein. Dated: 08 September 2021. (M. G. Deshpande) Additional Sessions Judge, Criminal Reference Number 16, Greater Bombay at Mumbai.
id_519	0	Writ Petition(s) (Civil) No(s). 13029/1985 Date: 07-11-2023. Parties: Ms. Aparajita Singh, Senior Advocate (Additional Counsel); Mr. Siddhartha Chowdhury, Advocate (Additional Counsel); Mr. Tushar Mehta, Learned Senior Government; Mr. Wasim Qadri, Senior Advocate; Mr. Gurmeet Singh Makker, Advocate on Record; Ms. Suhasini Sen, Advocate; Mr. Rajesh Kumar Singh, Advocate; Mr. S.S. Rebello, Advocate; Mr. Subhranshu Padhi, Advocate; Ms. Archana Pathak Dave, Advocate; Ms. Ruchi Kolhi, Advocate; Mr. Amrish Kumar, Advocate on Record; Mr. Gurminder Singh, Advocate General, Punjab; Mr. Shadan Farasat, Additional Advocate General; Ms. Rooh-e-hina Dua, Advocate on Record; Mr. Harshit Khanduja, Advocate; Mr. Sahib Kochhar, Advocate; Mr. Kanu Agrawal, Advocate; Mr. Bhuvan Kapoor, Advocate; Mr. Varun Chugh, Advocate; Mr. Krishna Kant Dubey, Advocate; Ms. Indira Bhakar, Advocate; Ms. Alka Agrawal, Advocate; Ms. Boby Devi Bonia, Advocate; Mr. Aniruddh Bhatt, Advocate; Mr. Prashant Singh, Advocate; Mr. Raj Bahadur Yadav, Advocate on Record; Mr. Rahul Khurana, Advocate; Ms. Suvarna Singh, Advocate; Mr. Sanjay Kr. Visen, Advocate on Record; Mr. Kamlendra Mishra, Advocate on Record; Mr. Praveen Swarup, Advocate on Record; Mr. Gaurava Yadava, Advocate; Mr. Devesh Maurya, Advocate; Ms. Pratishtha Majimdar, Advocate; Mr. Ravi Kumar, Advocate; Ms. Archana Sharma, Advocate; Mr. Rajatdeep Sharma, Advocate; Dr. Manish Singhvi, Senior Advocate; Mr. Sandeep Kumar Jha, Advocate on Record; Ms. Shubhangi Agarwal, Advocate; Mr. Jyoti Mendiratta, Advocate; Mr. Vikas Singh, Senior Advocate; Mr. Varun Singh, Advocate; Ms. Deepeika Kalia, Advocate; Ms. Vaishnavi, Advocate; Mr. Keshav Khandelwal, Advocate; Ms. Ruchi Kohli, Advocate; Ms. Srishti Mishra, Advocate; Mr. Vaibhav Kandpal, Advocate., Upon hearing the counsel, the Supreme Court of India made the following observations: The residents of Delhi have been struggling with health issues due to persistent air pollution, which has not been resolved year after year. The problem has continued for five years, and immediate attention and monitoring by the Court are required., Mr. Gurminder Singh, learned Advocate General for the State of Punjab, submitted that farmers burn stubble for economic reasons. The alternatives offered are not being adopted because of obstinacy and cost concerns. He suggested that an alternative solution be provided free of cost. While expensive machines have been purchased, farmers are unwilling to pay even 25% of the cost due to small holdings. He proposed that the State of Punjab bear 25% of the cost and that Delhi bear another 25%, with the Central Government bearing the remaining 50%., He also highlighted that the growth of paddy in Punjab is causing a drastic decline in the water table, with many wells beyond redemption. Since the paddy cultivated in Punjab is largely not consumed locally, he recommended phasing out paddy cultivation and substituting it with other crops, and suggested that the Central Government consider a minimum support price for alternative crops., Mr. Singh pointed out misuse of the Minimum Support Price for paddy, as paddy grown in adjacent states is brought into Punjab to claim MSP and sold under the MSP policy., He noted that the particular variety of paddy grown in Punjab produces stubble that, combined with its season and cultivation period, creates severe pollution problems not seen with Basmati grown elsewhere. He argued that this variety should not be cultivated in Punjab, as the problem did not exist fifteen years ago when this cropping pattern was absent., Mr. Singh acknowledged that Delhi has a locational issue, with weather conditions affecting pollution levels, but reliance on weather alone is insufficient. He referred to the Punjab Preservation of Subsoil Water Act, 2009, whose objective is to preserve subsoil water but also has ramifications on pollution when sowing dates are delayed, causing later cutting of paddy and increased atmospheric impact on Delhi. He suggested a re‑examination of the Act, emphasizing that sowing a non‑local, non‑consumed crop like paddy is the root cause, and that switching to alternative crops is necessary, which requires removal of MSP for paddy., The Court directed the State Government of Punjab, as well as the adjacent states Haryana, Rajasthan, Uttar Pradesh, and the relevant parts of Delhi, to ensure that crop burning is stopped forthwith. The local Station House Officer shall be made responsible under the overall supervision of the Director General of Police and the Chief Secretary., Mr. Gopal Shankaranarayan pointed out that one of the modalities suggested by the Honourable Prime Minister is the production of ethanol from maize, which may help improve the environmental situation., The learned Solicitor General mentioned that the Chief Minister of Delhi, in association with the Indian Agricultural Research Institute at Pusa (referred to as Pusa DE‑Composer), has achieved success in addressing stubble burning, and that a specific timeline should be demanded from the Punjab Government for tackling the problem., It was stated that the smog tower instituted in pursuance of earlier directions, on an experimental basis, is not working. On inquiry, a disciplinary action was proposed against the Chairman of the Delhi Pollution Control Committee, which the Court found inappropriate. The Court ordered that the tower be made operational, without commenting on the officer involved., The Court noted that real‑time monitoring by the Delhi Pollution Control Committee has not been made public. In IA No. 231822 of 2023, the following prayers were made and are directed to be complied with: (a) Direct the Delhi Pollution Control Committee to immediately release data from the study on Real Time Source Apportionment and Forecasting for Advanced Air Pollution Management in Delhi, commissioned by it; (b) Direct the Committee to publish real‑time source apportionment data for the sources of air pollution in Delhi on an ongoing basis, at least for the winter season; (c) Direct the Government of the National Capital Territory of Delhi and the Delhi Pollution Control Committee to re‑open and operationalize the Smog Tower installed at Baba Kharak Singh Marg, Connaught Place, New Delhi. The Chairperson of the Delhi Pollution Control Committee is to remain personally present in Court on the next date., IA 23281/2023 – application for intervention – was allowed. At the suggestion of Ms. Aparajita Singh, learned Amicus Curiae, the Court directed the Delhi State Government to monitor and ensure that municipal solid waste is not burnt in the open during this season., The Court considered it appropriate for the Cabinet Secretary to convene a meeting on the next day, either physically or by video conference, with all stakeholders, to obtain a clearer picture and achieve some remediation by Friday., Ms. Aparajita Singh, learned Amicus Curiae, pointed out that to control vehicular pollution, a coloured coded sticker system was envisaged, referenced in the order dated 02‑12‑2022 and the earlier order dated 21‑08‑2020. The system has been implemented only by the Delhi Government and not by the adjacent states, with no compliance report filed. She suggested that the odd‑even restriction based on colour coded stickers is unscientific, and proposed that vehicles with orange stickers be banned instead. The State Governments are to report back on this aspect., She also noted the large number of app‑based taxis operating in Delhi with registrations in different states, many of which carry only one passenger. She requested a mechanism to monitor and permit only taxis registered in Delhi to ply during this period as an additional measure to control pollution., The Delhi Government is directed to place before the Court the figures of the Environment Compensation Charge collected, and to detail how the amount has been utilized. The list is to be filed on 10‑11‑2023 along with IA No.
id_52	0	Applicant: Shrimati Chantara Opposite Party: State of Uttar Pradesh Counsel for Applicant: Ajay Kumar Vashistha Counsel for Opposite Party: G.A. Honourable Mrs. Manju Rani Chauhan, J., Heard Mr. Ajay Kumar Vashistha, learned counsel for the applicant and Mr. Akhilesh Kumar Srivastava, learned Additional Government Advocate appearing for the State. Perusal of the record shows that Allahabad High Court after hearing the submissions advanced by learned counsel for the applicant granted an interim protection on 09 September 2020 allowing two weeks' time for the State to file counter affidavit., Submission germane to the matter is that husband and father‑in‑law of the deceased have already been acquitted by the court below. To substantiate the said fact, learned counsel appearing for the applicant passed on a certified copy of the acquittal order, which has been returned to him after perusal. Applicant before Allahabad High Court is mother‑in‑law of the deceased., Acquittal of two accused persons by the court below and interim protection to applicant by Allahabad High Court in the offence under Sections 498A, 304‑B, 201 of the Indian Penal Code and Sections 3/4 of the Dowry Prohibition Act required attention of this Court to traverse to the pleadings of both anticipatory bail as well as counter affidavit closely to reach a final conclusion in applicant's matter., Bare perusal of reply given to the averments of anticipatory bail application in counter affidavit appears to be perfunctory and cavalier in manner as also bereft of any cogent or coherent factual and legal foundation as the Government Counsel Sri Indian Police Service Rajpoot, Additional Government Advocate I, (AOR‑A/I‑0034/2012) who drafted the affidavit did not hesitate in proving the applicant to be of criminal mind without adducing any substance in support thereof., Excerpt of the averments in paragraph 10 of counter affidavit says: \Remaining reply in entire counter affidavit rests on denial to each fact mentioned in anticipatory bail application. Contents of counter affidavit reflects the impetuousness of Government Counsel as well as the deponent where each fact is negated sans due care constricting the role of the applicant as per their whims. Allahabad High Court cannot turn a blind eye to such imprecise conduct of the deponent as well as learned Government Counsel brought in the counter affidavit. The reply quietly appears to be a transcription of para-wise narratives sent by the concerned department. Surprisingly, most of the paragraphs i.e. paragraph Nos. 3 to 12 of the counter affidavit are sworn to be verified on the basis of record, however, nothing is brought on record in support thereof. It is a staggering irony that deponent of counter affidavit, who is Deputy Superintendent of Police/Circle Officer, Sahawar, District Kasganj, believed himself to be empowered with sanction to author a certificate of propensity of a person without any cogent material.\, Since 75th Independence Day Celebrations, Government has marked Azadi‑ka‑Amrit Mahotsav terming it to be 'Amrit Kaal' with prospective vision in welfare of citizens of the country, however, Police Administration feels more comfortable to remain with colonial structure. Such attitude of functionaries who are instrumental to safeguard the public at large diminishes the ingrained belief over the system and plays a role in impeding the goal set out to ascend to new heights of prosperity., A bare reading of the averments in counter affidavit whereby the applicant is said to be of criminal intent appears to be on the basis of skewed information. No such officer is allowed to enjoy impunity on the pretext of discharging official functioning nor can be set free to form an audacious remark without any basis. It is the prime duty of the concerned Additional Government Advocate also who drafts counter affidavit to acquire the material relying on which the averments being made in counter affidavit., Let a personal affidavit be filed by the deponent of counter affidavit dated 22 September 2020 (Shailendra Singh son of Sri Mahipal Singh, Deputy Superintendent of Police/Circle Officer, Sahawar, District Kasganj), within ten days, as to what was in his possession for making statement in paragraph no. 10 of the counter affidavit. He shall remain present before Allahabad High Court on the said date along with the record of the case. Mr. Indian Police Service Rajpoot, learned Additional Government Advocate I, (AOR‑A/I‑0034/2012) shall also remain present before Allahabad High Court on the next date fixed to explain his conduct of dictating counter affidavit in such irresponsible manner., Let a copy of this order be placed before the learned Advocate General, Uttar Pradesh; Government Advocate, High Court, Allahabad; Principal Secretary (Law), Uttar Pradesh, Lucknow and Director General of Police, Uttar Pradesh, Lucknow. List this case on 21 February 2023. Interim order, if any, is extended till the next date of listing. Registrar General of Allahabad High Court shall ensure that the order be communicated to all concerned forthwith.
id_520	0	Samina Arif Khan alias Dhanlaxmi Chandrakant Devrukhkar, 52 years old, Housewife, Indian inhabitant, residing at B-204, Sanghavi Complex, Pearl CHS Ltd., Naya Nagar, Near Ganga Complex, Mira Road (East), Mira Bhayander, Thane, Maharashtra 401107., Petitioner: Dhanlaxmi Chandrakant Devrukhkar alias Samina Arif Khan, residing at 502, A‑Wing, National Avenue CHS Ltd., Akurali Road, Kandivali (East), Mumbai 400101. Respondents: (i) The Town Planning/Land Acquisition Officer, Malad, Mumbai; (ii) The Deputy Director of Land and Survey Record, Mumbai; (iii) The District Superintendent of Land and Survey Record, Mumbai; (iv) Honourable Revenue Minister, Mumbai; (v) Mumbai Pradesh Congress Committee, Malad (West); (vi) Sardar Vallabhbhai Patel Academy Trust, Mumbai; (vii) Brahut Bharti Samaj Trust, Malad (West). Additional respondents: Advocate and Notary, Government of India, 49 Roshan Estate, Kurla (West), Mumbai 400070; Sandeep S. Dharne, 202 Laxmi Palace, Cross Road No.3, Liberty Garden, Malad (West), Mumbai 400064. Original appellants: M/s Sanskriti Developers, partnership firm, 21 13th Khetwadi Lane, Mumbai 400004; Mr Vijay Jain, 207 Mantri Building, JSS Road, Girgaum, Mumbai 400004; Hitesh Bohra, 21 13th Khetwadi Lane, Mumbai 400004; M/s D.R. Developers, proprietary concern of Mr Sailesh Vanigota, 207 Mantri Building, JSS Road, Girgaum, Mumbai 400004. Respondent: M/s Mandal Infrastructure Pvt. Ltd., 342 New Corporate Plaza, Ramchandra Lane, Malad (West), Mumbai 400064. Counsel: Mr Ashok Dhanuka and Mr Aiqan Memon (W3Legal LLP) for the applicant in IAST 18348 of 2021; Mr Rohan Barge for the petitioner in WP 4947 of 2021; Mrs S.D. Vyas, B Panel Counsel for the State in WP 4947 of 2021; Mrs Aruna Pai, Public Prosecutor for the State in SMCP 1 of 2021; Mr D.P. Singh for the Union of India; Mr Sarif S. Khan for Contemnor No.1 in SMCP 1 of 2021; Mr Mohd. Muqim Khan for Contemnor No.2 in SMCP 1 of 2021; Mr Somnath Anchan for the auction purchaser; Dr Birendra Saraf, Senior Advocate with Mr Karl Tamboly and Mr Satchit Bhogle instructed by Mr Khan Javed Akhtar for the appellant; Mr Sharan Jagtiani, Senior Advocate with Ms Surabhi Agrawal, Mr Kashish Mainkar and Ms Treesa Ann Benny instructed by Wadia Ghandy and Co. for the respondent in Appeal (L) No.23906 of 2021; Mr D.N. Kher, Court Receiver with Mr A.B. Malwankar, Section Officer; Mr Nausher Kohli, Amicus Curiae with Mr Akash Agarwal., In Intervention Application (ST) No.18348 of 2021, filed in Civil Writ Petition No.4947 of 2021, a praecipe dated 29 September 2021 was received from Advocate Shri A.R. Dhanuka on behalf of the applicant Samina Arif Khan (alias Dhanlaxmi Chandrakant Devrukhkar) seeking urgent hearing and orders. The applicant alleged that Advocate Shri Rohan Barge and Notary Shri S.M. Naqvi, together with an unknown person, had filed Writ Petition No.4947 of 2021 in her name without her consent, knowledge or authority, thereby committing offences of cheating, fraud, impersonation and forgery against her and the Court., The Court noted the serious allegations and placed the intervention application and the writ petition on the board on 4 October 2021. The applicant’s counsel reiterated that Samina had not instructed Advocate Rohan Barge to file the writ petition. It was submitted that the certified copy of the writ petition showed signatures after the prayer clause and under the verification clause (pages 11 and 12) that were not hers. An order was passed directing Advocate Rohan Barge to appear before the Court at 2.30 p.m. on the same day. As he was absent, the Court directed him to appear on 5 October 2021 at 2.30 p.m., On 5 October 2021 Advocate Rohan Barge appeared before the Court together with Mr R.L. Agawane, a registered clerk, and Shri Sandeep S. Dharne. An affidavit of Shri Dharne was tendered. The affidavit, admittedly drafted by Advocate Barge, stated that in January 2020 Shri Dharne approached the registered clerk, who introduced him to Advocate Barge for filing the writ petition. Shri Dharne claimed to possess a Power of Attorney executed by Samina in 2005, said he had sought her confirmation to file the petition, and that, because Samina was hospitalised, he signed the petition on her behalf without informing Advocate Barge or the clerk. He further asserted that the Power of Attorney authorised him only for revenue matters and not for filing a writ petition., The Court asked Shri Dharne to produce the original Power of Attorney or a copy thereof. Shri Dharne informed the Court that he did not have the original or a copy. He admitted that the Power of Attorney authorised him only to represent Samina in revenue matters and did not empower him to file Writ Petition No.4947 of 2021., Samina, who was present on 5 October 2021 with her counsel, stated that she was not hospitalised at the relevant time and that she had never been informed by Shri Dharne that a writ petition would be filed on her behalf., Since Notary Shri S.M. Naqvi, Government of India, had placed his endorsement on page 12 of the writ petition confirming that Samina had verified the petition before him, the Court directed Shri Naqvi to appear on 6 October 2021 at 10.30 a.m. together with Notary Register No.437 showing the entry made on 11 February 2020 under Serial No.478, Page No.41., On 6 October 2021 Notary‑Advocate S.M. Naqvi appeared in the morning session and requested time to place his Notary Register before the Court at 2.45 p.m. The Court showed him the verification clause on page 12 where Samina’s signature appeared. Shri Naqvi placed his rubber stamp and signature, writing the date 11.2.2020 in his own handwriting and describing himself as Notary, Government of India. When asked whether Samina was present and had signed in his presence, Shri Naqvi answered affirmatively. He was then asked to produce Samina’s signature in the Notary Register; he claimed that his clerk had mistakenly taken Shri Dharne’s signature instead. Upon warning of stern action for false statements, Shri Naqvi admitted he had never met Samina and said the verification clause was signed by Shri Dharne as “Samina A. Khan” in good faith. He disclosed that his fee for the notarisation was Rs 60, while Shri Dharne claimed to have paid him between Rs 1,000 and Rs 1,500., The Court held that Shri Naqvi had deliberately made false statements, scandalising the authority of the Court and interfering with the administration of justice. A prima facie case was found for issuance of a Show Cause Notice under Article 215 of the Constitution of India and the Contempt of Courts Act, 1971. The Registry was directed to issue the Show Cause Notice to Shri S.M. Naqvi (Advocate and Notary) under Rule 9 of Chapter XXXIV of the Bombay High Court Appellate Side Rules, 1960, to be returned on 21 October 2021., Similarly, the Court found that Shri Dharne, by filing the writ petition in Samina’s name and obtaining the notary’s endorsement, had scandalised the authority of the Court, interfered with judicial proceedings and obstructed the administration of justice. A Show Cause Notice was directed to Shri Sandeep Dharne under the same rule, returnable on 21 October 2021. A copy of the order dated 6 October 2021 was to be forwarded to Shri Anil Singh, Additional Solicitor General (Western Region), and the matter was adjourned to 21 October 2021., Consequently, Show Cause Notices were issued to Advocate Naqvi and to Shri Dharne, and Suo Motu Criminal Contempt Petition No.1 of 2021 was registered against them., Pursuant to the order, Shri Sandeep Dharne filed two affidavits dated 17 November 2021. He attempted to claim that Samina had executed a Power of Attorney authorising him to act on the property, but the Court noted that the Power of Attorney did not authorise filing a writ petition. As Dharne had not produced any document showing Samina’s alleged hospitalisation or oral consent, and Samina herself denied being hospitalised, the Court was satisfied that Dharne had misled the Court by signing the petition in her name. In paragraph 10 of his affidavit, Dharne offered an unconditional apology for signing the petition as Samina before the Notary Public without informing the advocate on record. The Court accepted the apology, ordered Dharne to pay Rs 2,000 to the Maharashtra State Legal Services Authority within four days of the order, revoked the Power of Attorney executed in his favour with immediate effect, and directed him not to act on it in the future., Regarding Notary Shri S.M. Naqvi, the Court noted that he had made false statements on more than one occasion, later correcting them only after being warned. In his affidavit he stated that he was 72 years old and tendered an unconditional apology. The Court accepted his apology and ordered him to pay Rs 2,000 to the Maharashtra State Legal Services Authority within four days of the order., Although no notice was issued to Advocate Rohan Barge, the Court pointed out that before preparing the writ petition on the basis of Shri Dharne’s representation of a Power of Attorney, he was duty‑bound to verify the existence of such a document. The Court found him negligent, accepted his unconditional apology, and warned that any repeat of such conduct would attract stern action., In view of the above, Shri Dharne sought to withdraw Writ Petition No.4947 of 2021. The writ petition was disposed of, as was Intervention Application (ST) No.18348 of 2021 and Suo Motu Criminal Contempt Petition No.1 of 2021. Samina was left free to initiate appropriate proceedings against Shri Dharne, which would be decided on their own merits., Another matter of unprofessional conduct involved Advocate Sandeep Shah and Notary Shri Sandip Shah. Interim Application (L) No.23929 of 2021 was filed in Comm. Appeal (L) No.23906 of 2021, which had been notarised before the impugned order dated 12 October 2021 was uploaded on 13 October 2021. Advocate Javed Akhtar Khan prepared the appeal on 12 October 2021, stating that the impugned order was annexed as Exhibit A, and instructed the appellant’s partner, Mr Vijay Jain, to have the appeal notarised on the same day. Mr Jain informed the Court that he had drawn Notary Shah’s attention to the fact that the order was not yet uploaded, yet Shri Sandip Shah notarised the appeal on 12 October 2021 with the handwritten endorsement “Ex‑A to E are annexed hereunder. Sd/- Sandip Shah, Advocate & Notary”., The Court directed Shri Shah to appear on 21 October 2021 at 04.30 p.m. with his Notary Register. He appeared and produced the register showing the notarisation on 12 October 2021. When questioned about the handwritten endorsement on internal page 15 (running page 10) stating that Exhibit A was annexed, Shri Shah claimed he was misguided because the appeal’s body mentioned Exhibits A to E. The Court found this explanation false and untenable, noting that his stamp and signature on Exhibits B to E should have made him aware that Exhibit A was missing. Shri Shah admitted giving a false explanation and expressed regret., By order dated 21 October 2021 in Interim Application (L) No.23929 of 2021, the Court recorded that Advocate Javed Akhtar Khan and Shri Sandip Shah, Advocate & Notary, were guilty of unprofessional conduct and had made false statements with a view to mislead the Court. Both were directed to file affidavits explaining why action should not be taken against them by 27 October 2021. The Court Receiver, Bombay High Court, was directed to take possession of the flats as ordered by the learned single judge and to secure them with locks, subject to further orders., Advocate Javed Akhtar Khan filed an affidavit in which, in paragraph 10, he tendered an unconditional and unqualified apology for failing to mention in paragraph 2 of the appeal memo that the copy of the order was unavailable at the time of notarisation. He stated that the mistake was unintentional, that he is the sole bread‑earner for his family, and prayed that the Honourable Court refrain from taking action against him., Advocate Sandeep Shah also filed an affidavit, paragraph 10 of which contains an unconditional and unqualified apology for the mistake on page 10 (or page 136/138) of the appeal memo. He explained the circumstances, asserted that the error was unintentional, highlighted his status as the sole earner for his family, and requested mercy from the Honourable Court, noting his health issues of diabetes and hypertension., The Court accepted the unconditional and unqualified apologies of Advocate Javed Akhtar Khan and Notary Shri Sandip Shah and ordered each of them to pay Rs 2,000 to the State Legal Aid Fund, Maharashtra State Legal Services Authority, within four days of the order., In the appeal, the Court Receiver was directed to put the office premises of the appellants up for sale. To avoid the sale, the appellants deposited a total of Rs 4.40 crore with the Court – Rs 4 crore with the Court Receiver, High Court of Bombay, and Rs 40 lakhs with the Prothonotary and Senior Master. The Court Receiver will transfer the amount to the Prothonotary and Senior Master. Respondent Mandal Infrastructure Pvt. Ltd. may move the single judge in execution proceedings seeking withdrawal of the deposited amount, which will be heard on its own merits. The appeal, Interim Application (L) No.23929 of 2021, and the Show Cause Notice issued to Shri Vijay Jain for putting up a new door to conceal the Court Receiver’s board were all disposed of. The Court Receiver’s report was also disposed of., In view of the unprofessional conduct of advocates acting as notaries, the Court, by order dated 26 October 2021, recorded suggestions for amendments to the Notaries Act, 1952 and the Rules framed thereunder, as well as to the relevant circulars, to prevent such mischief. The Court appointed Advocate Nausher Kohli as Amicus Curiae to assist in this endeavour., Advocate Nausher Kohli submitted a report dated 9 December 2021. The report traced the ancient history of notaries from the Roman Empire and noted that the Court, in Prataprai Trumbaklal Mehta v. Jayant Nemchand Shah & Anr., held that notaries enjoy a high status throughout the country and that courts take judicial notice of a notary’s seal, attaching significant weight to documents attested by a notary., The President of India gave assent to the Notaries Act, 1952 on 9 August 1952, and the Act came into force on 14 December 1956. Before the Act, the Government of India could appoint notaries under Sections 138 and 139 of the Negotiable Instruments Act, 1881, and the Master of Faculties in England appointed notaries in India., Under Section 15 of the Act, the Central Government framed the Notaries Rules, 1956. Notaries are governed by the Act and the Rules. The Government of Maharashtra, Law & Judiciary Department, issued circulars dated 18 December 2001 and 25 January 2008 to curb instances of mischief., Despite the Act and Rules being in force for about 70 years, there have been no major amendments. For example, a notary’s travelling allowance is fixed at Rs 20 per kilometre, a figure last amended in 2014, and the fees payable for notarial acts were also last amended in 2014, even though fuel costs have risen substantially since then., One of the most important functions of a notary is attesting signatures on documents to reduce fraud. However, it has been observed that documents are often notarised in the absence of the signatory. Frequently, a notary leaves a blank row in the register, which is later filled, or the person signing the register differs from the person who signed the document. Sometimes the signatory affixes his signature after the notarisation, both in the document and in the register, leaving the court unaware of the malpractice unless it is discovered later. Such illegal practices defeat the purpose of notarisation and are sometimes facilitated by advocates who approach notaries without the presence of the signatory., Further instances of malpractice have recently emerged. In the present matter, while notarising an appeal, the notary failed to thoroughly check the exhibits and mechanically proceeded to notarise the filing. Additionally, even after a notary’s registration is suspended or cancelled, some continue to notarise documents, and persons not registered under the Act also perform notarisation.
id_520	1	Needless to state that the Bombay High Court, when confronted with the conduct as discussed in the preceding paragraphs, must proceed to deal with all the parties responsible for the same, strictly and take them to task, in order to prevent recurrence of the same., Mister Kohli has brought to our notice that the Bombay High Court and various courts across India have repeatedly encountered instances of misuse or mischief by parties, advocates and notaries. Whilst so observing, guidelines and strictures have been passed from time to time. It was in these circumstances and owing to several complaints received from the public at large regarding professional misconduct, that the Government of Maharashtra proceeded to issue the circulars with a view to curb the mischief. Despite the aforesaid corrective measures, the Act and Rules have been found lacking in preventing the prevalent misuse and mischief., It has recently been observed that the notaries have started notarizing documents from vehicles parked in a public parking lot instead of an office or chamber. It has also been observed that notaries have been operating from public taxis around the vicinity of the Bombay High Court. Though several photographs of such vehicles and public taxis have been produced before us, only by way of illustration we are producing hereunder three photographs which show to what extent the legal profession has degraded, causing anguish not only to the judiciary but also lowering the dignity of the profession in the eyes of the general public., Bar Council of Andhra Pradesh versus B. Narayan Swamy and Anr. [(2014) 16 SCC 516], Prataprai Trumbaklal Mehta versus Jayant Nemchand Shah and Anr. [1991 SCC OnLine Bom 205] and J. G. Hegde versus R. D. Shukla [2003 SCC OnLine Bom 908]., Though we are told that many advocates who are notaries have, due to the pandemic, surrendered their office premises which they were using as licensees, and are carrying on their job of notarizing documents in the aforementioned manner, there are several notaries who have been operating from private vehicles and taxis much before the pandemic. In any event, though we have full sympathy for the advocates who do not have their own offices to function from, we do believe that the dignity of the profession needs to be maintained and the legal profession cannot be allowed to function from the streets. We are also not able to understand how the Municipal Corporation of Greater Mumbai and also the Appropriate Authority have not taken any action to date in regard to the abovementioned functioning of advocates and notaries from parking areas and streets., Subsequent to the passing of our order dated 26 October 2021, Mister Kohli has brought to our notice that the Department of Legal Affairs has published the Notaries (Amendment) Bill, 2021 (Draft Bill) and has invited comments and suggestions on the Draft Bill by 15 December 2021., A salient feature of the Draft Bill is that it proposes the digitization of the records of a notary. Further, provisions have been proposed for the digitization and automation of notarial work undertaken by notaries., In view of this recent development, viz. the statement inviting comments and suggestions to the Draft Bill, the Bombay High Court along with Mister Kohli and other advocates of the Bombay High Court engaged in discussions and exchange of suggestions, based on which Mister Kohli has prepared a report proposing the following suggestions to the Draft Bill., In addition to providing for digitization and automation of notarial work undertaken by notaries, the proposed application or portal must furnish an updated database of notaries registered under the Act, along with their name, photograph, registration number, date of expiry of registration et cetera. This will provide the general public with an additional safeguard to verify whether the notary they have approached is duly registered under the Act. Simultaneously, the proposed application or portal must have an inbuilt mechanism which would prevent a person from carrying out a notarial act unless such person is duly registered under the Act and their registration has been confirmed on the application or portal., During the course of undertaking a notarial act, the proposed application or portal must enable a notary to simultaneously upload a photograph and such other biometric identifiers, such as a fingerprint scan, to confirm the presence of the signatory before a notary. The application or portal may also consider a simultaneous upload of geographical identification metadata with the photograph of the signatory. This process of geo‑tagging will confirm the exact latitude and longitude coordinates of the notary and the signatory whilst undertaking the notarial act. This measure will certainly remedy the mischief of a notary notarizing a document in the absence of the signatory., Rule 11(2) of the Rules mandates that every notary shall maintain a register as per the form prescribed in Form XV. The form prescribed as of date is inadequate and must be amended to add the following additional requirements: the time of the notarization; number of pages contained in the document being notarized including its annexures or exhibits; venue of notarization; method by which the person signing the document was identified and by whom; remarks that the notary may want to include such as the capacity of the signatory or the physical condition of the signatory et cetera., Form XV along with the aforesaid additions must also be simultaneously introduced on the portal pursuant to the Draft Bill., As a result of the Covid‑19 pandemic, immense difficulty was faced in notarizing documents. In order to solve this difficulty, various jurisdictions have empowered notaries to notarize documents remotely. Illustratively, various states in the United States of America have enabled notaries to notarize documents remotely by a facility called Remote Online Notarization (RON). The process provides for the remote notarization of documents using a video‑conferencing software such as Zoom or Cisco Webex., Reference in this regard can be made to the Executive Order Number 202.7 by the State of New York and the Guidelines to Notaries on implementing Executive Order Number 202.7 authorizing RON published by the New York Department of State. In Ryerson versus Ryerson, 2021 N.Y. Slip Op. 21172, the Supreme Court of New York upheld the notarization of documents via videoconferencing., The Department of Legal Affairs may therefore also consider incorporating a provision for RON in the Draft Bill., In the event that a document contains any alterations, insertions or erasures subsequent to it being notarized, the same shall be authenticated by the notary by affixing his or her initials near such alterations, insertions or erasures with a note forming a part of the document which sets out the paragraphs in which such modifications are carried out. This note shall be followed by the signature (rubber stamp) of the notary, along with the date, time and location. The note may be added at the end of the document after the jurat in the following format: I, [name of notary], hereby state that paragraph(s) [ ] of this document contains alteration, insertion or erasure. This or these alteration, insertion(s) or erasure(s) have been done before me by the deponent on [date] at [time] and [place] [Notary signature with the stamp]., A notary's register contains sufficient sensitive and confidential information to enable identity theft, misuse, impersonation etc. This sensitive and confidential information, such as a party's biometric identifier, merits protection., Whilst amending the Act and Rules, additional responsibilities must be cast on notaries to ensure safe keeping and protection of the sensitive and confidential data with which they are entrusted., Rule 11(9) of the Rules provides that every notary shall grant a receipt for the fees and charges realized and maintain a register showing all the fees and charges realized for every single notarial act. However, it has been observed that notaries do not follow this mandate and default in issuing receipts. This was observed by the Bombay High Court in Prataprai Trumbaklal Mehta versus Jayant Nemchand Shah and Anr., It is therefore recommended that the proposed application or portal provide for means to make online payments to notaries. Further, the proposed application or portal must mandatorily issue an electronic receipt for every notarial act undertaken., As per Rule 10(1) of the Rules, every notary may charge fees for notarizing the document not exceeding the rates mentioned in the Rules., Further, as per Rule 10(3) of the Rules, a notary may charge travelling allowance when travelling by road or by rail at the rate of Rs.20 per kilometre., It is pertinent to note that since 1956, the fees charged by notaries have increased marginally. Hence, taking into account the increased inflation, fuel prices etc., and the other hardships faced by the notaries, it is suggested that the Draft Bill include provisions for an increase in the fees charged by notaries. This is all the more required considering that notaries will now be required to expend additional monies in order to equip themselves technologically to comply with the Draft Bill once enacted., The Act and the Rules do not provide for a code of conduct for notaries. It is recommended that a code of conduct for notaries be introduced along with the Draft Bill. Useful reference may be made to the Notary Public Code of Professional Responsibility published by the National Notary Association in this regard., The proposed code of conduct for notaries would provide for a code of ethics, as also the requirement of periodical training for notaries. The code of conduct for notaries may also incorporate general provisions such as regular dos and don'ts in respect of notarizing documents. This will enable notaries to adapt to latest developments in their field., As mentioned hereinabove, notaries have started notarizing documents from vehicles parked in a public parking lot instead of an office or chamber. It has also been observed that notaries have been operating from public taxis around the vicinity of the Bombay High Court., It is therefore also recommended that the Bombay High Court issue orders and directions including to subordinate courts in Maharashtra prohibiting the aforesaid practice. In support of this proposed prohibition, reference may be made to Rule 10(2) of the Rules which provides that the rates of fees to be charged by a notary shall be displayed by him in a conspicuous place inside as well as outside his chamber or office., Further, Rule 15 of the Rules provides: Each notary shall have an office within the area mentioned in the certificate issued to him under Rule 8 and he shall exhibit it in a conspicuous place there at a board showing his name and his designation as a notary., A perusal of the aforesaid Rules indicates that the legislature, whilst enacting the Act and Rules, contemplated that notaries would operate from their office or chamber and certainly not from a public or private vehicle around the vicinity of a court., It cannot be disputed that notaries perform notarial acts around the vicinity of courts in India. The presence of notaries in close proximity of courts is essential and ought to be recognized. Therefore, it is recommended that notaries be provided with a designated place in and around the premises of courts without notaries having to incur the costs towards purchasing or renting an office or chamber., We have considered the submissions of the learned amicus curiae Mister Kohli and have given due consideration to his comprehensive report covering the prevalent law in India and the recent developments across the world, including in the United States of America. In our considered opinion, undoubtedly, the Act and Rules framed thereunder are in pressing need for major reform. We are, on a daily basis, coming across matters wherein notaries, advocates and parties are mischievously getting documents notarized. However, we are now pleased to note that the Draft Bill has been published proposing digitization of the records of a notary and digitization and automation of notarial work undertaken by notaries. We would like to believe that by the use of information technology, the prevalent mischief will be reduced to a great extent., In the circumstances aforesaid and considering that the Department of Legal Affairs has invited comments and suggestions on the Draft Bill by 15 December 2021, we deem it appropriate that the Registrar General of the Bombay High Court forthwith forward a copy of this order along with the report dated 9 December 2021 submitted by the learned advocate Mister Nausher Kohli, to the Department of Legal Affairs for their due consideration. We request the Department of Legal Affairs to give due consideration to this order and the report dated 9 December 2021 submitted by Mister Nausher Kohli, learned advocate whilst enacting the Draft Bill., Writ Petition Number 4947 of 2021 along with Intervention Application (St) Number 18348 of 2021 and Suo motu Contempt Petition Number 1 of 2021 stand disposed off. Commercial Appeal (L) Number 23906 of 2021 along with interim applications taken out therein also stand disposed off.
id_522	0	Reportable Writ Petition (Civil) No. 493 of 2022: Subhash Desai (Petitioner) versus Principal Secretary, Governor of Maharashtra and Others (Respondents). Also Writ Petitions (Civil) Nos. 469, 468, 470, 479 and 538 of 2022 are pending. Chief Justice of India Dhananjaya Y. Chandrachud presided over the proceedings., The writ petitions instituted before the Supreme Court of India under Article 32 of the Constitution arise from a political imbroglio in the State Legislature of Maharashtra. A coalition consisting of the Shiv Sena, the Nationalist Congress Party, the Indian National Congress and certain independent Members of Legislative Assembly formed the government in the State of Maharashtra with Mr. Uddhav Thackeray of the Shiv Sena as the Chief Minister. In mid‑2022 events led to the formation of a new government by a coalition consisting of a faction of the Shiv Sena (which claimed to be the real Shiv Sena), the Bharatiya Janata Party and certain independent Members of Legislative Assembly. Mr. Eknath Shinde of the Shiv Sena helmed the second government as its Chief Minister. The change in the composition of the government was precipitated by the emergence of two factions within the Shiv Sena. Various issues arising from these events are to be determined by this Court., The Shiv Sena was founded in 1966 in Maharashtra and is recognised by the Election Commission of India as a state political party. The organisational election of the party for the term January 2018 to January 2023 was held on 23 January 2018 and Mr. Uddhav Thackeray was elected as the Party President (Paksh Pramukh). The elections to the 14th Legislative Assembly of Maharashtra were held in October 2019. Of the total 288 seats, the Bharatiya Janata Party won 106 seats, the Shiv Sena 56 seats, the Nationalist Congress Party 53 seats, the Indian National Congress 44 seats and independent candidates 13 seats. In November 2019 the Shiv Sena, the Nationalist Congress Party and the Indian National Congress formed a post‑poll alliance known as the Maha Vikas Aghadi (MVA). The MVA successfully staked a claim to form the government and Mr. Uddhav Thackeray was sworn in as Chief Minister., On 25 November 2019, pursuant to a meeting chaired by Mr. Thackeray, all fifty‑six Shiv Sena MLAs issued a communication to the Speaker of the Maharashtra Legislative Assembly intimating that Mr. Eknath Shinde was appointed as the Group Leader of the Shiv Sena Legislative Party and that Mr. Sunil Prabhu was appointed as the Chief Whip of the Shiv Sena Legislative Party. The MVA continued to govern the State of Maharashtra until June 2022, when news reports revealed that some Shiv Sena MLAs were meeting with leaders of the Bharatiya Janata Party. At that time the office of the Speaker was vacant and the functions were being discharged by the Deputy Speaker, Mr. Narhari Zirwal. The Shiv Sena Legislative Party fractured into two factions: one led by the then Chief Minister Mr. Uddhav Thackeray and the other led by the Group Leader Mr. Eknath Shinde. For ease of reference the faction led by Mr. Thackeray is referred to as the petitioners and the faction led by Mr. Shinde as the respondents., On 21 June 2022 the Chief Whip, Mr. Sunil Prabhu, issued a whip directing all Shiv Sena MLAs to attend a meeting at Mr. Thackeray’s residence on the same day. Many MLAs, including Mr. Shinde, did not attend. The MLAs present passed a resolution removing Mr. Shinde as Group Leader and appointing Mr. Ajay Choudhari in his place; the resolution was communicated to the Deputy Speaker on 21 June 2022 and the Deputy Speaker accepted the change. Concurrently, thirty‑four Shiv Sena MLAs (the respondents) organised a separate meeting in Guwahati, Assam and passed a resolution reaffirming Mr. Shinde as Group Leader, cancelling the appointment of Mr. Sunil Prabhu as Chief Whip and appointing Mr. Bharat Gogawale as Chief Whip. The petitioners claim the resolution was received by the Deputy Speaker on 22 June 2022, while the respondents maintain it was sent on 21 June 2022. Mr. Shinde also wrote to the Deputy Speaker on 21 June 2022 requesting that Mr. Ajay Choudhari not be recognised as Group Leader. Further, the thirty‑four MLAs issued a notice to Deputy Speaker Mr. Zirwal under Article 179(c) of the Constitution read with Rule 11 of the Maharashtra Legislative Assembly Rules 2019, stating that he no longer enjoyed their support and calling for his removal. The petitioners claim the notice was received on 22 June 2022; the respondents assert it was sent on 21 June 2022., On 22 June 2022 Mr. Sunil Prabhu issued individual communications to all Shiv Sena MLAs calling them to attend a meeting of the Shiv Sena Legislative Party that evening at Mr. Thackeray’s residence, warning that failure to attend without valid reasons in writing would result in consequential action under the Constitution of India. Many MLAs, including Mr. Shinde, did not attend. On the same day Mr. Shinde addressed a letter to Mr. Prabhu accusing him of misusing the Shiv Sena Legislative Party letterhead and stating that a meeting of forty‑five Shiv Sena MLAs was held under his chairmanship, that Mr. Prabhu was removed as Chief Whip and replaced by Mr. Bharat Gogawale, and that Mr. Prabhu had no authority to sign the 22 June 2022 communication. Consequently, Mr. Shinde considered himself not bound to attend the meeting at Mr. Thackeray’s residence., On 23 June 2022 Mr. Sunil Prabhu filed petitions under Paragraph 2(1)(a) of the Tenth Schedule of the Constitution for the disqualification of Mr. Shinde and fifteen other Shiv Sena MLAs. The Deputy Speaker issued notices in these disqualification petitions on 25 June 2022, directing the respondents to submit written submissions by 27 June 2022. On 27 June 2022 the respondents invoked the jurisdiction of the Supreme Court of India under Article 32, challenging the notice. The Supreme Court passed an interim order extending the time to respond to the disqualification petitions from 27 June 2022 to 12 July 2022. Separately, Mr. Prabhu filed petitions for the disqualification of two independent MLAs, one Prahar Janshakti Party MLA on 25 June 2022 and against twenty‑two Shiv Sena MLAs on 27 June 2022., On 28 June 2022 the Leader of Opposition, Mr. Devendra Fadnavis, wrote to the Governor stating that he believed the then Chief Minister Mr. Thackeray did not enjoy a majority on the floor of the House and requested that the Governor direct Mr. Thackeray to prove his majority. Seven independent MLAs wrote a similar letter on the same day. The Governor issued a letter to Chief Minister Mr. Uddhav Thackeray on 28 June 2022 calling upon him to face a floor test on 30 June 2022, specifying that a special session of the Maharashtra Vidhan Sabha be summoned on 30 June 2022 at 11:00 am with the sole agenda of a trust vote, that the business be conducted efficiently, that voting be by members rising in their seats, that the proceedings be live‑telecast and videographed, and that security arrangements be made. The Governor also directed the Secretary of the Maharashtra Legislative Assembly to make necessary arrangements for the session., On 29 June 2022 Mr. Sunil Prabhu instituted a writ petition before the Supreme Court of India seeking to set aside the Governor’s communications of 28 June 2022 on the ground that disqualification petitions against forty‑two Shiv Sena MLAs were pending before the Deputy Speaker. The Supreme Court declined to stay the trust vote, holding that there was no ground to stay the convening of the special session on 30 June 2022 and that the proceedings of the trust vote would be subject to the final outcome of the instant writ petition and the other writ petitions referred to., On 30 June 2022 Mr. Devendra Fadnavis wrote to the Governor stating that 106 Bharatiya Janata Party MLAs and eight independent and other MLAs were extending support to Mr. Eknath Shinde to form the government. On the same day Mr. Shinde submitted a letter to the Governor with a resolution of thirty‑nine Shiv Sena Legislative Party MLAs authorising him to initiate proceedings to form the government, claiming support of 106 Bharatiya Janata Party MLAs and seventeen independent and other MLAs, and requesting invitation to take oath as Chief Minister. Sixteen independent or other‑party MLAs also wrote to the Governor expressing support for a Shinde‑led government. The Governor issued a communication inviting Mr. Shinde to take oath as Chief Minister and requesting him to prove his confidence within seven days. The Governor administered the oath to Mr. Shinde and Mr. Devendra Fadnavis on 30 June 2022, who assumed the offices of Chief Minister and Deputy Chief Minister of Maharashtra respectively. On the same day Mr. Thackeray wrote to Mr. Shinde stating that he had been removed from the post of Shiv Sena Leader in the party’s organisational structure and similarly removed other Shiv Sena MLAs from their party office‑bearer roles., Later in the week the Principal Secretary of the Maharashtra Legislative Assembly circulated the working order for the session scheduled for 3 July 2022, indicating that the election for the post of Speaker would be conducted. A Bharatiya Janata Party MLA nominated Mr. Rahul Narwekar of the Bharatiya Janata Party for Speaker, while a Shiv Sena MLA (ostensibly from Mr. Thackeray’s faction) nominated Mr. Rajan Salvi of the Shiv Sena. A motion of confidence in the Council of Ministers headed by Chief Minister Mr. Shinde was scheduled for 4 July 2022. On 2 July 2022 Mr. Sunil Prabhu issued two whips: one directing all Shiv Sena MLAs to attend the 4 July session and vote against the confidence motion, and another directing all Shiv Sena MLAs to attend the 3 July session and vote for Mr. Rajan Salvi in the Speaker election. The election for Speaker was conducted as scheduled and Mr. Rahul Narwekar of the Bharatiya Janata Party was elected with 164 votes, including thirty‑nine Shiv Sena MLAs (led by Mr. Shinde) who voted for him. Mr. Prabhu then instituted fresh disqualification proceedings against these thirty‑nine MLAs under Paragraph 2(1)(b) of the Tenth Schedule for violating his whip., After assuming office as Speaker, Mr. Rahul Narwekar cancelled the approval previously granted to Mr. Ajay Choudhari as Leader of the Shiv Sena Legislative Party and approved the appointment of Mr. Eknath Shinde in his place. He also recognised Mr. Bharat Gogawale as Chief Whip of the Shiv Sena Legislative Party in place of Mr. Sunil Prabhu. These decisions were recorded in a communication dated 3 July 2022 issued by the Deputy Secretary of the Maharashtra Legislative Assembly. On 3 July 2022 Mr. Bharat Gogawale issued a whip directing all Shiv Sena MLAs to attend the 4 July session and vote in favour of the confidence motion for the Council of Ministers headed by Chief Minister Mr. Shinde., On 19 July 2022 Mr. Eknath Shinde filed a petition before the Election Commission of India under Paragraph 15 of the Election Symbols (Reservation and Allotment) Order, 1968, seeking allotment of the bow and arrow symbol of the Shiv Sena to his faction. The Election Commission directed both factions to furnish written submissions and supporting documents. The petitioners filed two interlocutory applications in Writ Petition (Civil) No. 493 of 2022: one for impleadment of the Election Commission of India, which was allowed by the Supreme Court of India on 27 September 2022, and another seeking a stay of the Election Commission proceedings, which was dismissed. On 17 October 2022 the Election Commission of India passed an order granting the bow and arrow symbol to the faction led by Mr. Shinde., The reliefs sought in the present proceedings arise from six writ petitions filed by members of the factions led by Mr. Thackeray and Mr. Shinde. In Writ Petition (Civil) No. 493 of 2022 the petitioner seeks (a) quashing of the Governor’s decision dated 30 June 2022 inviting Mr. Shinde to take oath as Chief Minister and form the Government; (b) quashing of the Maharashtra Legislative Assembly proceedings held on 3 July 2022 and the election of the Speaker; (c) quashing of the Assembly proceedings held on 4 July 2022 and the confidence motion in favour of Mr. Shinde; and (d) calling for the records of all pending disqualification petitions against Mr. Shinde and his supporters and transferring them to the Supreme Court of India under Article 142 of the Constitution for determination. Similar specific reliefs are sought in Writ Petitions (Civil) Nos. 469, 468, 479, 470 and 538 of 2022, including directions to the Deputy Speaker, stays of notices and appointments, security provisions for Mr. Shinde’s family, and quashing of communications and summons issued by the Speaker., The writ petitions were listed before a three‑Judge Bench of the Supreme Court of India on 4 August 2022. Senior counsel Mr. Kapil Sibal and Dr. Abhishek Manu Singhvi appeared for the petitioners and Mr. Harish Salve for the respondents, raising the question of whether the matters should be referred to a five‑Judge Bench. By order dated 23 August 2022 the Court accepted the submission and referred the batch of writ petitions to a five‑Judge Bench under Article 145(3) of the Constitution, framing several questions including: (a) whether a notice for removal of a Speaker restricts the Speaker from continuing disqualification proceedings under the Tenth Schedule, as held in Nabam Rebia & Bamang Felix v. Deputy Speaker, Arunachal Pradesh Legislative Assembly; (b) whether a petition under Article 226 or Article 32 lies inviting a decision on a disqualification petition by the High Courts or the Supreme Court; (c) whether a court can deem a member disqualified by virtue of his actions absent a Speaker’s decision; (d) the status of House proceedings during pendency of disqualification petitions; (e) the effect of a Speaker’s decision that a member has incurred disqualification under the Tenth Schedule if it is backdated; (f) the impact of the removal of Paragraph 3 of the Tenth Schedule; (g) the scope of the Speaker’s power to determine the whip and the leader of the house legislative party and its interplay with the Tenth Schedule; (h) whether intra‑party decisions are amenable to judicial review; (i) the extent of the Governor’s discretion to invite a person to form the Government and its reviewability; and (j) the scope of the Election Commission of India’s powers with respect to determination of a split within a party., Submissions were made on whether the Nabam Rebia case ought to be referred to a larger bench. Learned senior counsel Mr. Kapil Sibal, Dr. Abhishek Manu Singhvi and Mr. Devadatt Kamat appeared for the petitioners, while Mr. Harish Salve, Mr. Neeraj Kishan Kaul, Mr. Mahesh Jethmalani, Mr. Maninder Singh and Mr. Siddharth Bhatnagar appeared for the respondents. Mr. Tushar Mehta, Solicitor General, appeared on behalf of the Governor of Maharashtra. The petitioners argued that, as held in Nabam Rebia (supra), it is impermissible for a Speaker to adjudicate disqualification petitions under the Tenth Schedule after a notice of intention to move a resolution for the Speaker’s removal has been issued.
id_522	1	The petitioners have urged that this aspect of the decision in Nabam Rebia (supra) ought to be referred to a Bench of seven Judges of the Supreme Court of India because In Kihoto Hollohan v. Zachillhu, a Constitution Bench of the Supreme Court of India held that the Court cannot interfere in disqualification proceedings under Paragraph 6 of the Tenth Schedule at an interlocutory stage except in exceptional circumstances. In terms of the decision in Nabam Rebia (supra), the proceedings under the Tenth Schedule would be interdicted upon the issuance of a notice of intention to move a resolution for the removal of the Speaker. This amounts to interference in disqualification proceedings at the interlocutory stage. The decisions in Kihoto Hollohan (supra) and Nabam Rebia (supra) therefore conflict with one another. The decision in Nabam Rebia (supra) is prone to be misused by defecting MLAs, whose consequent disqualification under the Tenth Schedule can be avoided by disabling the Speaker from proceeding with disqualification proceedings by issuing a notice of intention to move a resolution for their removal under Article 179 of the Constitution. The Speaker is left without a remedy in case of improper removal, while a disqualified member may access the remedy of judicial review if they have been unlawfully disqualified. By holding that the Speaker is disabled from proceeding with disqualification proceedings under the Tenth Schedule when a notice of intention to move a resolution for their removal is issued, Nabam Rebia (supra) has the effect of effacing the distinction between the role of the Speaker as a Tribunal under the Tenth Schedule and the role of the Speaker as an Officer of the State Legislature; disrupting the continuity in the functioning of the Tribunal under Paragraph 6 of the Tenth Schedule; and creating a constitutional hiatus in the operation of the Tenth Schedule. The decision in Nabam Rebia (supra) is based on the interpretation of the phrase \all the then Members of the Assembly\ in Article 179(c) of the Constitution to mean that the composition and strength of the House cannot be altered once a notice of intention to move a resolution for the removal of the Speaker is issued. This interpretation is contrary to the plain language of Article 179, the import of Article 181, and the deliberations in the Constituent Assembly Debates. In terms of the decision of the Supreme Court of India in Rajendra Singh Rana v. Swami Prasad Maurya, the disqualification of an MLA relates back to the date on which they engaged in the conduct proscribed under the Tenth Schedule. The scheme of the Constitution does not envisage the possibility of disqualified MLAs issuing a notice of intention to move a resolution for the removal of the Speaker after the date on which they engaged in the proscribed conduct., The respondents opposed the submissions urged on behalf of the petitioners. They submitted that the decision in Nabam Rebia (supra) is not required to be referred to a Bench of seven Judges of the Supreme Court of India for the following reasons. The decision in Nabam Rebia (supra) is based on ethical and constitutional considerations. If an MLA is unjustly disqualified by the Speaker and their disqualification is set aside by the courts, they would have been deprived of the opportunity to vote on the resolution for the removal of the Speaker as well as the opportunity to participate in other proceedings of the House. Conversely, if the Speaker is unjustly removed from office, they do not lose membership of the House and consequently retain the right to participate in the proceedings of the House and may also be re‑elected as the Speaker. The Speaker may act as a Tribunal under the Tenth Schedule only when they enjoy the confidence of the House. Article 181(1) provides that the Speaker cannot preside in the Legislative Assembly when a motion for their removal is pending. The decision in Kihoto Hollohan (supra) is an exception and not a general rule. Disabling the Speaker from deciding disqualification petitions upon the issuance of a notice of intention to move a resolution for their removal does not conflict with the ruling in Kihoto Hollohan (supra) because the disablement of the Speaker does not amount to interference at the interlocutory stage. In Nabam Rebia (supra), the Constitution Bench addressed the issue pertaining to the role of the Speaker when disqualification proceedings are initiated against MLAs. The issue has ceased to be a substantial question of law and cannot be referred to a larger bench under Article 145(3) of the Constitution., The learned Solicitor General, Mr. Tushar Mehta, appeared for the Governor of the State of Maharashtra and urged that Nabam Rebia (supra) did not warrant a reference to a larger bench for the following reasons. It is not the case of the petitioners that Nabam Rebia (supra) is per incuriam; it considers all the relevant aspects, precedent, and constitutional provisions. Nabam Rebia (supra) considers the possibility of the misuse of the temporary disablement of the Speaker. The assertion that Nabam Rebia (supra) protects a member of a House from disqualification is incorrect because members can always be subjected to disqualification proceedings by a Speaker whose majority in the House is not under a cloud of suspicion. Although the Speaker performs different functions as a Tribunal under the Tenth Schedule and as an officer of the State Legislature under the rules of the House, their authority to perform both functions is derived from the same source, namely the confidence of the majority of the House. Nabam Rebia (supra) does not conflict with Kihoto Hollohan (supra) because the latter permits quia timet actions where there are grave, imminent and irreparable consequences., By its order dated 17 February 2023, the Supreme Court of India directed that the issue of whether a reference of the decision in Nabam Rebia (supra) to a larger bench was warranted would be determined together with the merits of the case. The order reads: The issue of whether a reference to a Bench of seven Judges should be made cannot be considered in the abstract, isolated or divorced from the facts of the case. Whether the principle formulated in Nabam Rebia (supra) has an impact upon the factual position in the present case needs deliberation. In the above backdrop, the issue whether a reference of the decision in Nabam Rebia (supra) to a larger bench is warranted would be determined together with the merits of the case., Mr. Kapil Sibal, learned senior counsel appearing on behalf of the petitioners, made the following submissions. A constitutional court, by virtue of its power under Articles 32 and 226 of the Constitution, can decide whether an MLA is disqualified under the provisions of the Tenth Schedule. The Supreme Court of India has recognised this exceptional power in Rajendra Singh Rana (supra). The following exceptional circumstances indicate that this Court must decide the disqualification petitions in these proceedings: the constitutionality of events which succeeded the filing of the disqualification petitions, namely the direction of the Governor on 28 June 2022 to the then Chief Minister Mr. Uddhav Thackeray to face a floor test, the swearing‑in of Mr. Eknath Shinde as the Chief Minister on 30 June 2022, the appointment of the Speaker on 3 July 2022, the floor test held on 4 July 2022, and the petition filed by a faction led by Mr. Eknath Shinde under Paragraph 15 of the Symbols Order, have been challenged before this Court. The Speaker was appointed with the support of the faction of the Shiv Sena legislators led by Mr. Eknath Shinde. The Speaker has conducted himself in a biased and mala fide manner. In a communication dated 3 July 2022, the Speaker de‑recognised Mr. Ajay Choudhari and Mr. Sunil Prabhu as the Leader of the SSLP and the Chief Whip of the Shiv Sena respectively, and instead recognised Mr. Eknath Shinde and Mr. Bharat Gogawale respectively. The decision of the Speaker in the disqualification proceedings would depend on who was recognised as the Chief Whip, which is also under challenge in the instant batch of proceedings. A constitutional court while deciding disqualification petitions must decide if a per se case of disqualification is made out against the MLAs. In the facts of the present case, a per se case of disqualification is made out under Paragraph 2(1)(a) of the Tenth Schedule against the faction of legislators led by Mr. Eknath Shinde because they deliberately did not attend the SSLP meetings held on 21 June 2022 and 22 June 2022; on 22 June 2022, they passed illegal resolutions appointing Mr. Shinde as the Leader of the SSLP and Mr. Gogawale as the Chief Whip; and the faction led by Mr. Shinde met the Governor along with Mr. Devendra Fadnavis, the then Leader of Opposition. The alliance of legislators of Mr. Shinde’s faction with the BJP was against the wishes of the Shiv Sena political party. In the facts of the present case, a per se case of disqualification is also made out under Paragraph 2(1)(b) of the Tenth Schedule against the faction of legislators led by Mr. Shinde. On 2 July 2022, Mr. Sunil Prabhu issued a whip for the election of the Speaker. The faction of legislators led by Mr. Shinde violated the whip and voted in favour of Mr. Rahul Narwekar, who was the candidate nominated by the BJP. Disqualification under the Tenth Schedule relates back to the date on which the MLA engaged in the act incurring disqualification. Thus, the outcome of the proceedings on the floor of the House which took place during the pendency of the disqualification proceedings would depend on the decision of the Speaker on the disqualification petitions. In the same vein, the outcome of the trust vote would depend on the decision in the disqualification proceedings. Additionally, this Court by its order dated 29 June 2022 while dismissing the writ petition filed by the petitioners seeking a stay on the direction of the Governor to hold a trust vote observed that the proceedings of the trust vote shall be subject to the final outcome of the writ petition. The faction of legislators led by Mr. Shinde have asserted that they are the real Shiv Sena. They have also initiated proceedings under Paragraph 15 of the Symbols Order. The defence of the respondents in effect is that of a split. The defence of split having been deleted from the Tenth Schedule by the Constitution (Ninety‑first Amendment) Act 2003 cannot be used by the respondents as a defence for actions that incur disqualification., The purported resolution dated 21 June 2022 passed by the respondents appointing Mr. Gogawale as the Chief Whip, and the communication of the Speaker dated 3 July 2022 recognising Mr. Gogawale as the Chief Whip are illegal and must be set aside. The Chief Whip and the Leader of the legislature party must be appointed by the political party and not the legislature party because Paragraph 2(1)(b) of the Tenth Schedule stipulates that the whip must be issued by the political party (and not the legislature party) or by an authority authorised by the political party. Thus, the whip cannot be issued or altered by a majority of the legislature party. Paragraphs 1(b) and 1(c) differentiate between a legislature party and a political party for the purposes of the Tenth Schedule. This reading of the Tenth Schedule has been affirmed by Justice Srinivasan in his separate opinion in Mayawati v. Markandeya Chand. A majority faction of the legislature party cannot be construed as the political party for the purposes of the Tenth Schedule. The explanation to Section 23 of the Maharashtra Legislature Members (Removal of Disqualification) Act 1956 provides that the Chief Whip in relation to the Maharashtra Legislative Assembly means a member of the House who has been declared as the Whip by the party forming the government. The Constitution (Fifty‑second Amendment) Act 1985, by introducing disqualification of legislators on the ground of defection, recognised the role of political parties in parliamentary democracy. The decision of the Speaker ought to be set aside on the ground of procedural irregularity. The Speaker did not provide the political party with an opportunity of being heard before issuing the communication dated 3 July 2022 recognising Mr. Gogawale as the Chief Whip. The decision of the Speaker recognising a whip is not excluded from judicial review by the provisions of Article 212 of the Constitution. Article 212 only precludes judicial review of proceedings in the Legislature of the State on the ground of procedural irregularity. The Supreme Court of India in Raja Ram Pal v. Hon’ble Speaker, Lok Sabha has held that Article 212 does not exclude judicial review on the grounds of substantive or gross illegality. The Leader of the legislature party must be appointed only by the political party. The link between the political party and the legislature party would be severed if the legislature party is permitted to appoint a Leader different from the candidate selected by the political party., An MLA who the Speaker holds to have voluntarily given up membership for the purpose of the Tenth Schedule cannot initiate proceedings under Paragraph 15 of the Symbols Order because they will no longer be a part of the political party. Thus, members of a splinter faction who have been disqualified cannot be permitted to stake a claim under the Symbols Order as the political party., The decision of the Election Commission of India does not have any bearing on proceedings under the Tenth Schedule because disqualification relates back to the date of the actions which led to the incurring of disqualification, and the decision of the Election Commission will only have a prospective effect either from the date on which proceedings were instituted under Paragraph 15 of the Symbols Order or the date of the Election Commission’s decision in those proceedings., The communication of the Governor dated 28 June 2022 calling for a trust vote is illegal. The Governor’s power to call for a trust vote is not unrestrained. The Governor’s decision to call for a floor test is subject to judicial review and is liable to be quashed if it is based on extraneous considerations. The Governor’s decision to call for a floor test on 28 June 2022 was illegal because the resolution of thirty‑four members of the SSLP which is relied upon by the Governor does not state that they intend to exit the MVA, and the Governor cannot base his satisfaction on a claim of a majority of the SSLP against the government formed by their own political party., The communication of the Governor dated 30 June 2022 calling Mr. Eknath Shinde to take oath as the Chief Minister is unconstitutional and ought to be set aside for the following reasons. The Governor calling Mr. Shinde to take oath amounts to a recognition of a split in the Shiv Sena. The Governor could not have called Mr. Shinde to form the Government when a disqualification petition was pending against him. The recommendations of the Sarkaria Commission on the order of preference in which the Governor ought to call for the formation of the government were approved by the Supreme Court of India in Rameshwar Prasad v. Union of India. The Governor did not follow this order of precedence. The decision of the Speaker disqualifying a member is ex post facto. The Speaker must decide as on facts that existed on the date the alleged action incurring disqualification had taken place. A disqualified member of the Assembly cannot be appointed as a Minister in view of the bar in Article 164(1‑B) of the Constitution., The order of the Supreme Court of India dated 27 June 2022 created a hiatus in the operation of the Tenth Schedule., Dr. Abhishek Manu Singhvi, learned senior counsel appearing on behalf of the petitioners, made the following submissions. The status quo ante as on 27 June 2022 ought to be restored for the following reasons. The order of this Court on 27 June 2022 extending the time granted to the respondents to respond to the disqualification petitions created a negative injunction on the functioning of the Speaker. The order of this Court on 29 June 2022 declining to stay the trust vote was a positive order. The Government in the State of Maharashtra would not have changed but for the above orders of this Court, relying on Indore Development Authority v. Manohar Lal. The order of this Court on 27 June 2022 is contrary to the judgment of the Constitution Bench in Kihoto Hollohan (supra) where it was held that judicial review cannot be made available at a stage prior to the decision of the Speaker under the Tenth Schedule. By this order, the court tilted the delicate balance of unfettered functioning of different constitutional functionaries in their respective spheres. The order of this Court on 29 June 2022 held that the trust vote would be subject to the final outcome of the instant writ petition as well as the writ petitions referred above. Thus, the consequences and the new status quo created must be subject to the final outcome of the instant proceedings. Status quo ante ought to be restored as on 27 June 2022. The power of the court to restore status quo ante is not unheard of. This Court directed status quo ante in Nabam Rebia (supra). This Court must direct status quo ante to give effect to the object behind the introduction of the Tenth Schedule, which is to curb the evil of political defections. Immediately after his appointment as the Speaker on the evening of 3 July 2022, Mr. Rahul Narwekar recalled the order of the Deputy Speaker dated 21 June 2022 recognising Mr. Ajay Choudhari as the Leader of SSLP and Mr. Bharat Gogawale as the Chief Whip of the SSLP. The validity of the order of the Deputy Speaker dated 21 June 2022 was sub judice before this Court. Further, upon his appointment, the Speaker issued notice only on the disqualification petitions instituted by the respondents. The Speaker has behaved contrary to the spirit of neutrality and independence. Allowing the Speaker to decide the disqualification petition would amount to incentivising defection. Thus, this Court and not the Speaker must decide the disqualification petitions. The Governor could not have directed a trust vote when the legality of the disqualification petitions was pending consideration. The letter of the Governor dated 28 June 2022 recognises a split in the Shiv Sena. He does not have the authority to recognise a split. The majority in S.R. Bommai v. Union of India held that it would be open to the Court to restore status quo ante before the issuance of the proclamation if the presidential proclamation was invalid. It was held that status quo ante could be restored even if the proclamation is approved by both the Houses of Parliament. It was also held that it would be open to the court to mould the relief while restoring status quo ante. Thus, this Court has the power to mould relief by holding that legislations passed in the intervening period would not be invalid but other actions during the pendency of the disqualification proceedings such as the election of the Speaker would be invalid if those who voted for the Speaker are held to have incurred disqualification. Article 189(2) extends only to situations where there is a challenge to the proceedings solely because of the eligibility of the members and there is no per se challenge to the validity of the proceedings. However, in the instant case, there is a prior challenge to the decision of the Governor to direct a trust vote. This action of the Governor cannot be immunised from judicial review by virtue of Article 189(2). The resignation of Mr. Uddhav Thackeray on 29 June 2022 cannot dilute the illegality of the action of the Governor in directing a trust vote. The decision of the Election Commission of India under Paragraph 15 of the Symbols Order will have prospective effect. The decision of the Election Commission recognising one of the factions as the Shiv Sena for the purposes of the Symbols Order cannot be applied retrospectively to the pending disqualification petitions. Such an interpretation would also be contrary to settled law that disqualification relates back to the date when the actions constituting defection were committed. MLAs who are dissatisfied with the status quo of the political party are entitled to resort to a merger under paragraph 4, or resign and re‑contest elections, or apply to the Election Commission of India under Paragraph 15 of the Symbols Order for recognition of their faction as the political party and await the decision of the Election Commission. The members ought to be disqualified if they have chosen to act in a manner that is prohibited under the Tenth Schedule., Mr. Devdatt Kamat, learned senior counsel appearing on behalf of the petitioners, made the following submissions. The term political party as it occurs in the Tenth Schedule relates to the association of persons registered under Section 29A of the Representation of the People Act 1951. Political party refers to the leadership structure subsisting on the date of the alleged prohibited conduct until the recognition of the political party and its leadership structure is altered under the law. The members of the legislature party cannot claim that they represent the political party as a defence to the disqualification petitions instituted against them. Any such faction is only entitled to advance such a claim before the Election Commission of India in proceedings under the Symbols Order. The members cannot indulge in conduct that is prohibited under the Tenth Schedule until their claim is settled under the Symbols Order. The Tenth Schedule will be put on a hiatus if the contention of the respondents that the disqualification petitions depend on the adjudication of their claim under Paragraph 15 of the Symbols Order is accepted. The respondents could not have initiated proceedings under Paragraph 15 of the Symbols Order when disqualification petitions are pending against them since the factor of legislative majority laid down in Sadiq Ali v. Election Commission of India may be altered based on the adjudication of the disqualification proceedings., Mr. Neeraj Kishan Kaul, learned senior counsel appearing on behalf of the respondents, made the following submissions. In terms of Paragraph 6 of the Tenth Schedule, the Speaker is the sole constitutional authority to adjudicate upon the issue of disqualification. Moreover, Article 212(1) of the Constitution provides that the validity of proceedings of the state legislature cannot be called into question before courts. The petitioners are attempting to surpass the constitutional authority of the Speaker to adjudicate upon the disqualification petitions. The concept of per se disqualification is unknown to the Constitution. Any decision as to the disqualification proceedings under the Tenth Schedule must be taken after following the due process of law and the principles of natural justice. A member incurs disqualification only after adjudication by the Speaker. The procedure for the adjudication of disqualification petitions is prescribed under the Maharashtra Legislative Assembly (Disqualification on Ground of Defection) Rules 1986. The MLAs facing disqualification retain the right to participate in the proceedings of the House and vote on resolutions. Article 189(2) of the Constitution provides that any proceedings of the House are not invalid even if it is subsequently discovered that persons who were not entitled to participate or vote or otherwise take part in the proceedings did so. In Pratap Gouda Patil v. State of Karnataka and Speaker, Haryana Vidhan Sabha v. Kuldeep Bishnoi this Court observed that members should not be stopped from taking part in the proceedings of the House merely because disqualification proceedings were pending against them. Prior to the deletion of Paragraph 3 of the Tenth Schedule, the Speaker’s enquiry as to the existence of a split within a political party was limited to a prima facie determination for deciding the disqualification proceedings. As a result of the deletion of Paragraph 3, the authority of the Speaker to form even a prima facie opinion regarding a split within a political party has been removed. Upon the deletion of Paragraph 3, the only defence for disqualification proceedings under the Tenth Schedule is that of a merger under Paragraph 4. The Election Commission of India is the sole authority empowered to decide disputes between rival factions of a political party according to the provisions of the Symbols Order. A majority of a legislature party may appoint the Leader and the Chief Whip of the legislature party. The 1986 Rules provide that only the members of the legislature party shall choose their Leader. When the Leader and the Chief Whip are elected by the majority of the legislature party, the Speaker must take a prima facie view and grant recognition to such Leader and Chief Whip for the purposes of the Tenth Schedule. The Speaker has no choice but to appoint a Leader and a Chief Whip elected by a majority of the members of the legislature party. The decision of the Governor calling Mr. Eknath Shinde to form the Government is valid and cannot be called into question because Mr. Thackeray resigned on 29 June 2022 without facing the floor test. On the resignation of Mr. Thackeray, it was the constitutional duty of the Governor to call upon another person who commanded the majority in the Legislative Assembly to form the government. Mr. Shinde staked his claim to form the government and subsequently proved his majority on the floor of the Legislative Assembly., Mr. Tushar Mehta, learned Solicitor General appearing on behalf of the Governor, made the following submissions. The decision of the Governor calling upon Mr. Thackeray to prove his majority on the floor of the House was justified because the Governor has a constitutional obligation to ensure that the Council of Ministers led by the Chief Minister enjoys the support of the majority of the House. The Governor directed Mr. Thackeray to face the floor test based on the prevailing circumstances and the material before him. In directing the floor test, the Governor did not decide who enjoys the majority in the Legislative Assembly. Further, he did not decide any matter pertaining to the disqualification petitions or the split within the Shiv Sena. The Governor is not precluded from exercising discretionary power to call for a floor test. Constitutional propriety requires the Governor to act independently and call for an immediate floor test when serious doubts have been raised about the majority enjoyed by the incumbent government in the Legislative Assembly. In the present case, the Governor called for the floor test based on the following objective facts: the letter dated 21 June 2022 along with the resolution signed by thirty‑four MLAs of the SSLP reaffirming support to Mr. Shinde as the Leader of the SSLP; the letter dated 25 June 2022 addressed by thirty‑eight MLAs of the SSLP claiming that the lives of the MLAs and their family members were under threat, as was their property; and the letter dated 28 June 2022 by the Leader of Opposition requesting him to call upon the then Chief Minister to prove his majority on the floor of the Legislative Assembly. The Supreme Court of India in S.R. Bommai (supra) and Shivraj Singh Chouhan v. Union of India held that calling for an immediate floor test is the most appropriate measure in case any doubt arises as to whether the Chief Minister and the Council of Ministers enjoy the confidence of the House. The issue of the propriety of the Governor’s action calling Mr. Thackeray to prove his majority on the floor of the House has become infructuous because the latter did not face the floor test and instead resigned from the post of Chief Minister. The decision of the Governor to administer the oath of office to Mr. Shinde cannot be called into question as it was based on the following objective facts: the letter dated 30 June 2022 by Mr. Devendra Fadnavis extending support to Mr. Eknath Shinde for the formation of the government; the letter dated 30 June 2022 by Mr. Eknath Shinde informing the Governor that he enjoys the support of a majority of the MLAs and requesting the Governor to invite him to take oath as Chief Minister; and the letters dated 30 June 2022 by seventeen independent MLAs and MLAs from other parties supporting Mr. Eknath Shinde.
id_522	2	Mr. Maninder Singh, learned senior counsel for the respondents made the following submissions: The disqualification petitions under the Tenth Schedule must be decided by the Speaker. Reliance by the petitioners on Rajendra Singh Rana (supra) is erroneous because in that case, the disqualification petitions were already decided by the Speaker. It was only in appeal that the Supreme Court of India decided the issue of disqualification instead of remanding the matter back to the Speaker. The disqualification of a member by the Speaker under the Tenth Schedule has drastic consequences. There can never be an automatic or deemed disqualification of an elected representative without affording any opportunity of hearing (relied on Kshetrimayum Biren Singh v. Honble Speaker, Manipur Legislative Assembly). The Tenth Schedule cannot be used to stifle intra‑party dissent amongst members of the same political party. Intra‑party dissent cannot be termed as defection. Therefore, the respondents did not indulge in prohibitory conduct under Paragraph 2(1)(a) of the Tenth Schedule. Any act of expression of dissent against the leadership of the party does not constitute voluntarily giving up membership of the party under Paragraph 2(1)(a). Paragraph 2(1)(b) also has no applicability in the facts of the present case. After the deletion of Paragraph 3 from the Tenth Schedule, the Speaker has no jurisdiction to take cognizance of a split in a political party. The Election Commission of India has the exclusive jurisdiction to decide a split in a political party under Paragraph 15 of the Symbols Order. The order of the Supreme Court of India on 27 June 2022 granting additional time to the respondents to reply to the disqualification petitions was in accordance with the principles of natural justice., Mr. Mahesh Jethmalani, learned senior counsel appearing for the respondents made the following submissions: The concept of deemed disqualification does not exist under the Constitution. Disqualification must be actual and there is a mandated procedure for disqualification proceedings under Rule 7(7) of the 1986 Rules. The Speaker decides disqualification proceedings with reference to the date on which the action due to which the Member of Legislative Assembly is alleged to have incurred disqualification is committed. However, in view of Articles 189(2) and 191(2) of the Constitution, the order of disqualification only has prospective effect. The petitioners instituted disqualification petitions against sixteen out of the thirty‑nine Members of Legislative Assembly who were part of Mr. Shinde's faction to entice those against whom petitions were not filed to gravitate towards Mr. Thackeray's faction. The petitioners knew that if all thirty‑nine Members of Legislative Assembly were disqualified, the Maharashtra Vikas Aghadi government would fall. Later, on 27 June 2022, a second disqualification petition was filed against the remaining twenty‑three Members of Legislative Assembly., Mr. Harish Salve, learned senior counsel for the respondents made the following submissions: During the pendency of the disqualification petitions, Members of Legislative Assembly are entitled to participate in the proceedings of the House. Article 189(2) of the Constitution indicates that the subsequent disqualification of a member does not vitiate any actions in the House. The petitioners argued that but for the interim order of the Supreme Court of India, the disqualification would have followed, that Mr. Thackeray would not have resigned, and that he would have survived the trust vote. The Supreme Court of India should not enter into the realm of speculation while deciding constitutional matters. In the eventuality that Mr. Thackeray faced the floor test, he would not have had the support of the majority of the legislators. Mr. Thackeray's resignation on the eve of the trust vote is a testament to the fact that he had lost the confidence of the House., Analysis – Reference of Nabam Rebias case to a larger Bench., Article 179 stipulates that a Speaker (or a Deputy Speaker) may be removed from their office by a resolution passed by a majority of all the then members of the Assembly. Article 179 of the Constitution reads as follows: 179. A member holding office as Speaker or Deputy Speaker of an Assembly (c) may be removed from his office by a resolution of the Assembly passed by a majority of all the then members of the Assembly: Provided that no resolution for the purpose of clause (c) shall be moved unless at least fourteen days notice has been given of the intention to move the resolution: Provided further that, whenever the Assembly is dissolved, the Speaker shall not vacate his office until immediately before the first meeting of the Assembly after the dissolution., In Nabam Rebia (supra), the INC formed the government in Arunachal Pradesh under the leadership of Mr. Nabam Tuki. Mr. Nabam Rebia was elected as the Speaker of the Arunachal Pradesh Legislative Assembly. In October 2015, a section of the Members of Legislative Assembly of the INC formed a separate group and opposed the leadership of the Chief Minister. Twenty Members of Legislative Assembly of the INC along with two independent Members of Legislative Assembly wrote to the Governor claiming that the Chief Minister has lost the trust and confidence of the House. Later, certain Members of Legislative Assembly from the opposition parties issued a notice of intention to move a resolution for the removal of the Speaker of the Assembly under Article 179(c) of the Constitution. Thereafter, the Chief Whip of the Congress Legislature Party filed disqualification petitions under Paragraph 2(1)(a) of the Tenth Schedule against fourteen Members of Legislative Assembly of the INC for breaching party directions. The Speaker then issued notices in the disqualification petitions to the Members of Legislative Assembly., On 9 December 2015, the Governor issued an order advancing the session of the Assembly originally scheduled to be held on 14 January 2016 to 16 December 2015. On the same day, the Governor also issued a message under Article 175(2). In the message, he fixed the resolution for the removal of the Speaker as the first item on the agenda of the House and tasked the Deputy Speaker with conducting the proceedings of the House. The Governor also directed that the Presiding Officer shall not alter the party composition in the House till the session was prorogued. On 17 December 2015, the Government headed by the Chief Minister Mr. Nabam Tuki was declared to have lost the confidence of the House., It was in this context that Nabam Rebia (supra) came to be decided. A Constitution Bench of the Supreme Court of India in that case (speaking through the majority opinion authored by Justice Khehar and the concurring opinion by Justice Misra, as the learned Chief Justices then were) inter alia ruled that it was impermissible for a Speaker to adjudicate upon disqualification petitions under the Tenth Schedule after a notice of intention to move a resolution for their removal from the office of the Speaker was issued., Justice Khehar grounded his opinion on constitutional and moral reasoning. The learned Judge observed that when the position of the Speaker is under challenge, it would seem just and proper for the Speaker to establish his right to continue before adjudicating on the disqualification petition(s) pending before him: When the position of a Speaker is under challenge, through a notice of resolution for his removal, it would seem just and appropriate, that the Speaker first demonstrates his right to continue as such, by winning support of the majority in the State Legislature. The action of the Speaker in continuing, with one or more disqualification petitions under the Tenth Schedule, whilst a notice of resolution for his own removal from the Office of the Speaker is pending, would appear to be unfair. Why would a Speaker who is confident of his majority, fear a floor test? After his position as the Speaker is affirmed, he would assuredly and with conviction, deal with the disqualification petitions, under the Tenth Schedule. And, why should a Speaker who is not confident of facing a motion for his removal have the right to adjudicate upon disqualification petitions, under the Tenth Schedule? The manner in which the matter has been examined hereinabove, is on ethical considerations. A constitutional issue, however, must have a constitutional answer., Justice Khehar referred to the Constituent Assembly Debates to elucidate the meaning of the phrase all the then members of the Assembly as it appears in Article 179(c) (draft Article 158). In the course of the debates in the Constituent Assembly, Mr. Mohd. Tahir proposed to substitute the phrase all the then members of the Assembly with the phrase the members of the Assembly present and voting. However, the proposed amendment was negatived. Justice Khehar observed that the Constituent Assembly Debates do not appear to have recorded any discussion on this proposed amendment. He noted that this meant that the members of the Constituent Assembly used the phrase to indicate definiteness and that any change in the composition of the Assembly when the notice of intention to move a resolution for the removal of the Speaker was pending would conflict with the express mandate of Article 179(c): We are satisfied that the words passed by a majority of all the then Members of the Assembly would prohibit the Speaker from going ahead with the disqualification proceedings under the Tenth Schedule, as the same would negate the effect of the words all the then Members, after the disqualification of one or more Members of Legislative Assembly from the House. The words all the then Members demonstrate an expression of definiteness. Any change in the strength and composition of the Assembly, by disqualifying sitting Members of Legislative Assembly, for the period during which the notice of resolution for the removal of the Speaker (or the Deputy Speaker) is pending, would conflict with the express mandate of Article 179(c), requiring all the then Members to determine the right of the Speaker to continue., The opinion of the majority further noted that the purpose sought to be achieved through the Tenth Schedule is clear and unambiguous, and that it is distinct from the purpose sought to be achieved by Article 179(c): The purpose sought to be achieved through the Tenth Schedule is clear and unambiguous. The same is unrelated to, and distinct from, the purpose sought to be achieved through Article 179(c). Neither of the above provisions can be seen as conflicting with the other. Both must, therefore, freely operate within their individual constitutional space. Each of them will have to be interpreted in a manner as would serve the object sought to be achieved, without treading into the constitutional expanse of the other. The interpretation would have to be such as would maintain constitutional purpose and harmony., Justice Khehar observed that if the Speaker decided a disqualification petition before surviving the vote, it would prejudice the Members of Legislative Assembly facing disqualification but not the Speaker. The disqualified Members of Legislative Assembly would not have a right to participate in the motion moved against the Speaker even if the order of disqualification was set aside. They would, in his view, have been effectively deprived of the opportunity to participate in the motion against the Speaker. However, the Members of Legislative Assembly would not lose their right to participate if the disqualification petition was taken up after the motion against the Speaker was put to vote., Referring to the first proviso to Article 179, Justice Misra observed that the Speaker would gain an advantage if they were allowed to change the composition of the Assembly by adjudicating the disqualification petitions in the fourteen days when the notice was pending. This, he observed, would result in a constitutional conflict between the role of the Speaker as the presiding member of the Assembly and the role of the Speaker as a Tribunal under the Tenth Schedule. Justice Misra also referred to the amendment to Article 179(c) (draft Article 158) that was negatived by the Constituent Assembly, to reach the same conclusion as Justice Khehar. Article 181(2) of the Constitution provides that the Speaker shall have the right to speak in and take part in the proceedings of the Legislative Assembly while a resolution for their removal from office is under consideration but shall not be entitled to vote in case of an equality of votes. The learned Judge held that the requirement under Article 181(2) when contradistinguished with Article 189 restricts the power of the Speaker to participate in the proceedings seeking their removal since the Speaker has been given the power to vote in the event of an equality of votes under the latter provision. This constitutional design indicated, in the view of the Judge, that the Speaker cannot be given the power to interfere with the resolution for their removal., Justice Madan Lokur held that the Court was not called upon to decide this issue: In the view that I have taken, I am of the opinion that the view expressed by my learned Brothers relating to the power or propriety of the Speaker taking a decision under the Tenth Schedule of the Constitution with regard to the fourteen Members of the Legislative Assembly does not at all arise in these appeals., As noticed in the previous segment of this judgment, the Supreme Court of India deferred taking a view on the question of whether the decision in Nabam Rebia (supra) ought to be referred to a larger Bench until the hearing on the merits of the case was concluded., Having considered the submissions advanced by counsel for all the parties, we are of the view that the ruling in Nabam Rebia (supra) does not apply to the factual scenario of the present case., In terms of Article 180 of the Constitution, the Deputy Speaker performs the duties of the Speaker while the office of the Speaker is vacant. The functions of the Speaker include the adjudication of disqualification petitions. In the present case, the office of the Speaker of the Maharashtra Legislative Assembly was vacant and the Deputy Speaker Mr. Narhari Zirwal was discharging the functions of the Speaker. A notice of intention to move a resolution for his removal under Article 179 is stated to have been issued on 22 June 2022. Mr. Sunil Prabhu filed disqualification petitions against some of the Members of Legislative Assembly led by Mr. Shinde on 23 June. The first circumstance commences with the notice dated 21 June 2022, under Article 179(c) asking the Deputy Speaker to refrain from discharging his functions. The reply of the Deputy Speaker is crucial. In view of the gravity of the subject matter of the said communication, it is imperative that the genuineness of the communication be verified and ascertained before taking the same on record. Therefore, unless and until the persons who have purportedly signed the aforesaid communication satisfy the undersigned about the authenticity of any such notice, such communication is not liable to be taken on record or acted upon. In view of the same and in my capacity as the Master of House, unless and until the genuineness and the veracity of any such communication and its signatories is ascertained, no further action can be taken and said communication dated 22.06.2022 is therefore not being taken on record. Any such notice will only be taken on record after I am satisfied of its genuineness and authenticity., It is evident from the above that the Deputy Speaker decided not to take cognizance of the notice under Article 179(c). We believe that the Speaker being the adjudicator, their understanding of the jurisdiction that they may or may not exercise is of utmost importance. The Deputy Speaker proceeded to issue notices to the respondents on 25 June 2022, requiring them to file written submissions by 27 June 2022. The notice was as follows: Whereas the Applicant has filed Application Number 1 of 2022 for disqualification of you Non‑Applicant before Deputy Speaker, Maharashtra Legislative Assembly, we hereby along with all the annexed documents issue summons as under. You are instructed to submit written submissions as per the procedure laid in the Members of Maharashtra Legislative Assembly (Disqualification on ground of defections) Rules 1986 by Monday, 27th June 2022 by 5.30 pm to Deputy Speaker. You are also instructed to submit all the relevant documents you are going to rely upon to be submitted along with this reply. You also note that, if these written submissions are not given within the stipulated time, it will be assumed that you have nothing to say on this Application and decision will be taken accordingly., As is evident from the above, the Deputy Speaker did not consider the decision in Nabam Rebia (supra) as an impediment to proceeding to adjudicate upon the complaint made under the Tenth Schedule., The sixteen Members of Legislative Assembly filed a Writ Petition under Article 32 before the Supreme Court of India being W.P. (C) Nos. 468‑469 of 2022 raising two grounds. The first relates to the disability of the Speaker in proceeding with the hearing in view of the decision in Nabam Rebia (supra). The second ground relates to the legality of the summons issued by the Deputy Speaker granting only forty‑eight hours for filing a written statement. The important order passed by the Supreme Court of India on 27 June 2022 is as follows: Meanwhile as an interim measure, the time granted by the Deputy Speaker of the Assembly to the petitioners or other similarly placed Members of the Legislative Assembly to submit their written submissions up to today by 5.30 P.M., is extended till 12 July 2022., It is clear that the Supreme Court of India did not injunct the Deputy Speaker from proceeding with the hearing of the cases under the Tenth Schedule. In fact, the Supreme Court of India merely extended the time for filing a written statement till 12 July 2022, which shows that the proceedings must go on., The petitioners urge that the order of the Supreme Court of India dated 27 June 2022 relied on the decision in Nabam Rebia (supra) to injunct the Deputy Speaker from adjudicating the disqualification petitions. This submission cannot be accepted. Although the parties may have addressed the Supreme Court of India on the applicability of Nabam Rebia (supra), the order dated 27 June 2022 did not rely on Nabam Rebia (supra) to injunct the Deputy Speaker from adjudicating the disqualification petitions on the ground that a notice of intention to move a resolution for his removal had been issued. The Supreme Court of India instead granted an extension of time to the persons against whom disqualification petitions were filed, to file their written submissions, in view of the principles of natural justice., The election of the Speaker was conducted shortly thereafter, and Mr. Rahul Narwekar was appointed as the Speaker. As a consequence, the Deputy Speaker was no longer required to discharge the functions of the Speaker. It fell to the Speaker to adjudicate any disqualification petitions that were pending. This being the case, Nabam Rebia (supra) does not apply to the matter before us. We will therefore render a verdict on the merits of the matter., The reason why the Deputy Speaker did not proceed with the hearing is completely attributable to events that happened thereafter. After the notice of intention to move a resolution for the removal of the Deputy Speaker was issued, subsequent events such as the Governor calling upon the then Chief Minister to prove the majority on the floor of the House, followed by the resignation of the then Chief Minister, formation of the new government, election of the new Speaker and passing of the trust vote, all in quick succession, happening within a fortnight, relegated the issue now referred to seven Judges to the backseat. These events brought about a dramatic change in the power structure and the reasons for such change became the main challenge and more fundamental to the present proceedings. The case of the petitioners now rests on their challenges to the decisions of (i) the Governor calling upon the then Chief Minister to prove his majority; (ii) swearing in Mr. Ekanth Shinde as the Chief Minister; (iii) election of the Speaker by the House which included the thirty‑four Members of Legislative Assembly who are facing disqualification notices; and (iv) legality of the trust vote dated 4 July 2022., Although the decision in Nabam Rebia (supra) is not applicable to the factual scenario before us, we are alive to the competing considerations which animated the Supreme Court of India in its order dated 23 August 2022 by which the decision in Nabam Rebia (supra) was referred to a Constitution Bench. In that order, the Supreme Court of India formed a prima facie opinion that the proposition of law laid down in Nabam Rebia (supra) was based on contradictory reasoning. The order of reference notes: We may prima facie observe that the proposition of law laid down by the Constitution bench in Nabam Rebia (supra) stands on contradictory reasoning, which requires gap filling to uphold the constitutional morality. As such, this question needs a reference to a Constitution bench for the requisite gap filling exercise to be conducted., Based on the submissions which have been canvassed before us, we are of the view that the decision in Nabam Rebia (supra) merits reference to a larger Bench because a substantial question of law remains to be settled. The following are our prima facie reasons for reaching this conclusion: a. Nabam Rebia (supra) is in conflict with the judgement in Kihoto Hollohan (supra) because the decision in Kihoto Hollohan holds that there is no reason to doubt the independence and impartiality of the Speaker when adjudicating on proceedings under the Tenth Schedule. In contrast, in Nabam Rebia (supra), this Court doubted the ability of the Speaker to remain neutral while deciding disqualification petitions after a notice of intention to move a resolution for the removal of the Speaker has been issued. b. In Nabam Rebia (supra), this Court referred to the Constituent Assembly Debates to interpret the phrase all the then members in Article 179(c). This Court noticed the amendment moved by Mr. Mohd. Tahir, proposing that the term all the then members of the Assembly in Article 179(c) (draft Article 158(c)) be replaced with the term all the members of the Assembly present and voting. In Nabam Rebia (supra), this Court noticed that this proposal was rejected and observed that the Constituent Assembly Debates do not appear to have recorded any discussion on the above amendment. It was inter alia on this basis that this Court held that the phrase all the then members of the Assembly meant that the composition of the Assembly ought not to be changed after the notice of intention to move a resolution for the removal of the Speaker (or the Deputy Speaker) was issued. However, the members of the Constituent Assembly discussed the import of the phrase all the then members occurring in other provisions of the Constitution. Dr. B. R. Ambedkar clarified that the phrase all the then members has been used to indicate all members of Parliament whose seats are not vacant, and it does not mean members sitting or present and voting. This Court appears not to have noticed the entirety of the discussion in the Constituent Assembly regarding the phrase all the then members while using the Constituent Assembly Debates as an internal aid of interpretation. c. Article 181 of the Constitution provides that the Speaker shall not preside over a sitting of the Legislative Assembly while a resolution for their removal is under consideration. It appears that the majority in Nabam Rebia (supra) did not consider the effect and import of Article 181, and whether the Constitution envisages the imposition of any restriction on the functions of the Speaker beyond the limited restriction imposed by Article 181. d. The second proviso to Article 179 provides that whenever the Assembly is dissolved, the Speaker shall not vacate his office until immediately before the first meeting of the Assembly after the dissolution. This Court did not consider if the Constitution envisages a restriction on the continuous performance of the functions of the Speaker under the Tenth Schedule in view of this provision. e. Rule 11 of the Maharashtra Legislative Assembly Rules stipulates that upon the expiry of the period of fourteen days provided under the proviso to Article 178, leave is granted to move the motion only when twenty‑nine members vote in favour of it. This Court did not consider the possibility that a notice of intention to move a resolution for the removal of the Speaker may not culminate in such a motion being moved. The Speaker may be effectively barred from adjudicating disqualification petitions based on the mere issuance of a notice of intention to move a resolution by one member of the House. f. It appears that the following aspects were not considered in Nabam Rebia (supra): i. Whether the temporary disablement of the functions of the Speaker under the Tenth Schedule is prone to misuse by Members of Legislative Assembly who anticipate that disqualification petitions will be instituted against them or by Members of Legislative Assembly against whom disqualification petitions have already been instituted; and ii. Whether a constitutional hiatus in the operation of the Tenth Schedule ensues because of the temporary disablement of the Speaker., To give quietus to the issue, we refer the following question (and any allied issues which may arise) to a larger Bench: whether the issuance of a notice of intention to move a resolution for the removal of the Speaker restrains them from adjudicating disqualification petitions under the Tenth Schedule of the Constitution. The matter may be placed before the Chief Justice for appropriate orders. We accordingly answer the question referred to us as noted in Paragraph 32(a) of this judgment., Pending the decision of the larger Bench, as an interim measure, adoption of the following procedure may subserve the objective of the Tenth Schedule, Symbols Order as well as Article 179(c). It may also provide some amount of clarity and certainty. The investiture of exclusive adjudicatory jurisdiction upon the Speaker to determine the complaints under the Tenth Schedule will entitle the Speaker to rule upon and decide applications questioning their jurisdiction; The Speaker is entitled to rule on applications which require them to refrain from adjudicating proceedings under the Tenth Schedule on the ground of initiation of a motion for their removal under Article 179(c). A Speaker can examine if the application is bona fide or intended only to evade adjudication; If the Speaker believes that the motion is well founded, they may adjourn the proceedings under the Tenth Schedule till the decision for their removal is concluded. On the other hand, if they believe that the motion is not as per the procedure contemplated under the Constitution, read with the relevant rules, they are entitled to reject the plea and proceed with the hearing; The decision of the Speaker, either to adjourn the proceedings under the Tenth Schedule in view of the pending proceedings under Article 179(c) or to proceed with the hearing will be subject to judicial review. As the decision of the Speaker relates to their jurisdiction, the bar of a qua timet action, as contemplated in Kihoto Hollohan (supra) will not apply., The power of the Supreme Court of India to decide disqualification petitions at the first instance., The petitioners have urged that the Speaker cannot be entrusted with the adjudication of disqualification petitions because he is biased and partial as he was appointed with the support of the Members of Legislative Assembly against whom disqualification petitions have been filed. They have relied on Rajendra Singh Rana (supra) to argue that the Supreme Court of India should decide the disqualification petitions against the respondents., Article 191(2) of the Constitution stipulates that a Member of Legislative Assembly disqualified under the Tenth Schedule shall be disqualified for being a member of the House. Under Paragraph 6 of the Tenth Schedule, the Speaker has the exclusive jurisdiction to decide the question of disqualification. Paragraph 8 empowers the Chairman or Speaker of the House to make rules on the procedure for deciding any question referred to in Paragraph 6 including the procedure for any inquiry which may be made for the purpose of deciding such question. In exercise of the powers conferred under Paragraph 8, the Speaker of the Maharashtra Legislative Assembly notified the 1986 Rules., Rule 6 of the 1986 Rules lays down the procedure for the filing of disqualification petitions against a member of the House before the Speaker. Rule 7 provides that the Speaker may either dismiss the petition for non‑compliance with the requirements laid down under Rule 6 or proceed to determine the question of disqualification against a member of the House. According to Rule 7(7), the Speaker must grant a reasonable opportunity to such member to represent their case. Rule 8 provides that the Speaker shall after due consideration of the merits of the case either dismiss the disqualification petition or declare that the member has become subject to disqualification under the Tenth Schedule by an order in writing. Thus, the Tenth Schedule (read together with the 1986 Rules for Maharashtra) provides a detailed procedure guiding the exercise of power by the Speaker under the Tenth Schedule. The Speaker must decide disqualification petitions by following this procedure., In Kihoto Hollohan (supra), the Supreme Court of India held that the Speaker is a Tribunal for the purposes of the Tenth Schedule. Therefore, the exercise of power under the Tenth Schedule is subject to the jurisdiction of Courts under Articles 136, 226, and 227 of the Constitution.
id_522	3	Supreme Court of India further observed that the finality clause contained in Paragraph 6(2) did not completely exclude the jurisdiction of courts. However, it was held that such a clause limits the scope of judicial review because the Constitution intended the Speaker or the Chairman to be the repository of adjudicatory powers under the Tenth Schedule. Supreme Court of India held that judicial review is not available at a stage prior to the decision of the Speaker or Chairman, save in certain exceptional circumstances detailed in that case. Thus, Kihoto Hollohan (supra) makes it evident that the exclusive power to decide the question of disqualification under the Tenth Schedule vests with the Speaker or Chairman of the House., The petitioners have relied on Rajendra Singh Rana (supra) to urge that Supreme Court of India should invoke its extraordinary jurisdiction and itself decide the question of disqualification against the respondent MLAs. Alternatively, it is urged that Supreme Court of India should direct the Deputy Speaker, Mister Zirwal, who was performing the functions of Speaker prior to 3 July 2022, to decide the disqualification petitions., In Rajendra Singh Rana (supra), disqualification petitions were filed against thirteen MLAs of the Bahujan Samaj Party on 4 September 2003. On 26 August 2003, the Speaker accepted a split in the BSP and recognized a separate group by the name of Lok Tantrik Bahujan Dal. The thirteen MLAs against whom disqualification petitions were instituted were also part of the Lok Tantrik Bahujan Dal. On 6 September 2003, the Speaker accepted the merger of the Lok Tantrik Bahujan Dal with the Samajwadi Party without deciding the disqualification petitions against the thirteen MLAs. On 7 September 2005, the Speaker rejected the disqualification petitions against the MLAs. By its judgment dated 28 February 2006, the High Court quashed the order of the Speaker rejecting the disqualification petitions against the MLAs and directed him to reconsider the petitions., On appeal, Supreme Court of India observed that it would not be appropriate for it to decide the disqualification petitions for the first time when the concerned authority had not taken a decision. It observed that Supreme Court of India would normally remit the matter to the Speaker or Chairman to take a proper decision in accordance with law. However, Supreme Court of India decided to adjudicate the disqualification petitions in view of the following peculiar facts and circumstances: the Speaker of the Legislative Assembly in that case failed to decide the question of disqualification in a timebound manner; the Speaker decided the issue of whether there was a split in the party without deciding whether the MLAs in question were disqualified; and the necessity of an expeditious decision in view of the fact that the disqualification petitions were not decided by the Speaker for more than three years and the term of the Assembly was coming to an end. In view of the above facts and circumstances, Supreme Court of India was of the opinion that remanding the disqualification proceedings to the Speaker would lead to them becoming infructuous., Supreme Court of India should normally refrain from deciding disqualification petitions at the first instance, having due regard to constitutional intendment. The question of disqualification ought to be adjudicated by the constitutional authority concerned, namely the Speaker of the Legislative Assembly, by following the procedure prescribed. Disqualification of a person for being a member of the House has drastic consequences for the member concerned and by extension, for the citizens of that constituency. Therefore, any question of disqualification ought to be decided by following the procedure established by law. In Kshetrimayum Biren Singh (supra), a three-Judge Bench of Supreme Court of India set aside the order of the Speaker disqualifying MLAs under Paragraph 2(1)(a) for not granting an opportunity to them to lead evidence and present their case. The Speaker was directed to decide the disqualification petitions afresh by complying with the principles of natural justice. Even in cases where the Speaker decides disqualification petitions without following the procedure established by law, Supreme Court of India normally remands the disqualification petitions to the Speaker. Therefore, absent exceptional circumstances, the Speaker is the appropriate authority to adjudicate petitions for disqualification under the Tenth Schedule., The petitioners have urged that in view of the circumstances, Supreme Court of India should not remand the disqualification proceedings to the Speaker of the Maharashtra Legislative Assembly, on the ground that he has demonstrated himself to be incapable of acting fairly and impartially. Before addressing the petitioners' submission, it is necessary to refer to the status of the Speaker under the Constitution. Article 178 provides that the Legislative Assembly shall, as soon as may be, choose two members of the Assembly to be the Speaker and Deputy Speaker. The procedure for the election of Speaker and the Deputy Speaker is generally provided by the relevant rules of the Legislative Assembly., In a parliamentary democracy, the Speaker is an officer of the Assembly. The Speaker performs the function of presiding over the proceedings of the House and representing the House for all intents and purposes. In Kihoto Hollohan (supra), it was contended that the Speaker does not represent an independent adjudicatory machinery since they are elected by the majority of the Assembly. Rejecting the argument, Supreme Court of India emphasized that the office of the Speaker is held in high respect in parliamentary tradition. The Court held that the Speaker embodies propriety and impartiality and that it was therefore inappropriate to express distrust in the office of the Speaker: It would, indeed, be unfair to the high traditions of that great office to say that the investiture in it of this jurisdiction would be vitiated for violation of a basic feature of democracy. It is inappropriate to express distrust in the high office of the Speaker, merely because some of the Speakers are alleged, or even found, to have discharged their functions not in keeping with the great traditions of that high office. The robes of the Speaker do change and elevate the man inside. (emphasis supplied), The petitioners have relied upon the judgment in Shrimant Balasaheb Patil v. Speaker, Karnataka Legislative Assembly, where it was observed that the Speaker does not deserve to be reposed with public trust and confidence if he is not able to dissociate from his political party and if he acts contrary to the spirit of neutrality and independence. In Shrimant Balasaheb Patil (supra), the Speaker issued orders disqualifying certain MLAs, prohibiting them from contesting elections and becoming members for the remaining term of the Legislative Assembly. Supreme Court of India upheld the decision of the Speaker on the question of disqualification. However, it held that the Speaker does not have the power to specify the period of disqualification under the Tenth Schedule. It was in view of the unconstitutional exercise of power by the Speaker that Supreme Court of India expounded on the general principles that a Speaker is expected to follow while adjudicating questions of disqualification., A similar submission was made before Supreme Court of India in the case of Keisham Meghachandra Singh v. Honble Speaker Manipur Legislative Assembly, where it was submitted that Supreme Court of India should issue a writ of quo-warranto against the appointment of an MLA as a minister when disqualification petitions are pending. Rejecting the submission, Supreme Court of India held as follows: Shri Kapil Sibal, learned Senior Advocate appearing on behalf of the Appellant, in the Civil Appeal arising out of SLP(C) No. 18659 of 2017, has argued that the Speaker in the present case has deliberately refused to decide the disqualification petitions before him. In these circumstances, he has exhorted us to issue a writ of quo warranto against Respondent No. 3 stating that he has usurped a constitutional office, and to declare that he cannot do so. It is not possible to accede to Shri Sibal's submission that Supreme Court of India issue a writ of quo warranto quashing the appointment of Respondent No. 3 as a minister of a cabinet led by a BJP government. Mrs. Madhavi Divan is right in stating that a disqualification under the Tenth Schedule from being an MLA and consequently minister must first be decided by the exclusive authority in this behalf, namely, the Speaker of the Manipur Legislative Assembly. It is also not possible to accede to the argument of Shri Sibal that the disqualification petition be decided by Supreme Court of India in these appeals given the inaction of the Speaker. It cannot be said that the facts in the present case are similar to the facts in Rajendra Singh Rana (supra). In the present case, the life of the legislative assembly comes to an end only in March 2022 unlike in Rajendra Singh Rana (supra) where, but for Supreme Court of India deciding the disqualification petition in effect, no relief could have been given to the petitioner in that case as the life of the legislative assembly was about to come to an end. The only relief that can be given in these appeals is that the Speaker of the Manipur Legislative Assembly be directed to decide the disqualification petitions pending before him within a period of four weeks from the date on which this judgment is intimated to him. In case no decision is forthcoming even after a period of four weeks, it will be open to any party to the proceedings to apply to Supreme Court of India for further directions/reliefs in the matter., The incumbent Speaker of the Maharashtra Legislative Assembly has been duly elected by the MLAs in terms of the procedure laid down under the Maharashtra Assembly Rules 1960. The petitioners have referred to the decision of the Speaker to cancel the recognition of Mister Sunil Prabhu as the Chief Whip of the Shiv Sena on 3 July 2022 to argue that the Speaker is biased and impartial. The decision of the Speaker to cancel the recognition of Mister Prabhu has also been challenged in the instant proceedings. Even if Supreme Court of India sets aside the decision of the Speaker cancelling the recognition of Mister Prabhu on merits, it would not be a sufficient reason for Supreme Court of India to decide the disqualification petitions. We are also unable to accept the alternative submission of the petitioners to direct the Deputy Speaker to adjudicate the question of disqualification for the simple reason that the Maharashtra Legislative Assembly has duly elected the Speaker, who has been entrusted with the authority to decide disqualification petitions under the Constitution. The Deputy Speaker can perform the duties of the Speaker only when the office of the Speaker is vacant. As observed in Kihoto Hollohan (supra) and Shrimant Balasaheb Patil (supra), the Speaker is expected to act fairly, independently, and impartially while adjudicating the disqualification petitions under the Tenth Schedule. Ultimately, the decision of the Speaker on the question of disqualification is subject to judicial review. Therefore, Supreme Court of India is of the opinion that the Speaker of the Maharashtra Legislative Assembly is the appropriate constitutional authority to decide the question of disqualification under the Tenth Schedule., In Rajendra Singh Rana (supra), a Constitution Bench of Supreme Court of India observed that disqualification is incurred at the point when the MLA indulges in conduct prohibited under the Tenth Schedule. The petitioners rely on this observation to contend that the validity of the proceedings in the House during the pendency of the disqualification petitions depends on the outcome of the disqualification petitions. The petitioners urge that though the MLAs cannot be barred from participating in the proceedings of the House merely on the initiation of disqualification petitions against them, the outcome of such proceedings will be subject to the decision of the Speaker in the pending disqualification petitions. It is important to understand the context in which Supreme Court of India decided Rajendra Singh Rana (supra) to appreciate the gamut of its observations., A coalition Government, headed by the leader of the BSP, Ms. Mayawati, was formed in May 2002 pursuant to the elections to the 14th Legislative Assembly of Uttar Pradesh. On 27 August 2003, thirteen MLAs of the BSP wrote to the Governor requesting him to invite the Leader of the Samajwadi Party to form the Government. On 4 September 2003, the leader of the BSP filed disqualification petitions against the thirteen MLAs under the provisions of Paragraph 2(1)(a) of the Tenth Schedule. On 6 September 2003, thirty-seven MLAs of the BSP filed a claim before the Speaker for recognition of a split in the party. They claimed that pursuant to a meeting in Lucknow on 26 August 2003, the BSP split and that they constituted the group representing a faction which had arisen as a result of the split, namely the Lok Tantrik Bahujan Dal. On the very same day, the Speaker accepted the claim of a split and recognized a separate group by the name Lok Tantrik Bahujan Dal while the disqualification petitions were kept pending. Proceedings under Article 226 of the Constitution were instituted before the High Court challenging the order of the Speaker recognizing the split. The High Court set aside the order of the Speaker and directed the Speaker to consider the disqualification petitions instituted against the thirteen MLAs. The appeal against the order of the High Court was disposed by the Constitution Bench in Rajendra Singh Rana (supra)., Supreme Court of India held that the Speaker could not have decided whether a split existed dehors the disqualification petitions. The Court considered the issue of the point in time when the defence of a split must have existed. The respondents in that case contended that the defence of a split in terms of Paragraph 3 must have existed on the day on which the MLAs indulged in prohibitory conduct. In response, the petitioners contended that it is sufficient for the MLAs to prove a split in terms of Paragraph 3 as on the day when the disqualification petitions are decided by the Speaker. It was in this context that Supreme Court of India observed that the MLAs incur disqualification when they indulged in prohibitory conduct and therefore, the defence to disqualification (in this case, a split) must also have existed when the MLAs indulged in prohibitory conduct. As we see it, the act of disqualification occurs on a member voluntarily giving up his membership of a political party or at the point of defiance of the whip issued to him. Therefore, the act that constitutes disqualification in terms of paragraph 2 of the Tenth Schedule is the act of giving up or defiance of the whip. The fact that a decision in that regard may be taken in the case of voluntary giving up, by the Speaker at a subsequent point of time cannot and does not postpone the incurring of disqualification by the act of the legislator. Similarly, the fact that the party could condone the defiance of a whip within 15 days or that the Speaker takes the decision only thereafter in those cases, cannot also pitch the time of disqualification as anything other than the point at which the whip is defied. Therefore in the background of the object sought to be achieved by the Fifty-second Amendment of the Constitution and on a true understanding of paragraph 2 of the Tenth Schedule, with reference to the other paragraphs of the Tenth Schedule, the position that emerges is that the Speaker has to decide the question of disqualification with reference to the date on which the member voluntarily gives up his membership or defies the whip. It is really a decision ex post facto. The fact that in terms of paragraph 6 a decision on the question has to be taken by the Speaker or the Chairman cannot lead to a conclusion that the question has to be determined only with reference to the date of the decision of the Speaker. An interpretation of that nature would leave the disqualification to an indeterminate point of time and to the whims of the decision‑making authority. The same would defeat the very object of enacting the law. Such an interpretation should be avoided to the extent possible. We are, therefore, of the view that the contention that only on a decision of the Speaker that the disqualification is incurred cannot be accepted. This would mean that what the learned Chief Justice has called the snowballing effect will also have to be ignored and the question will have to be decided with reference to the date on which the membership of the legislature party is alleged to have been voluntarily given up. (emphasis supplied), The observations that are sought to be relied upon by the petitioners were made in the context of deciding the relevant point of time at which the defence to disqualification must have existed., In Kuldeep Bishnoi (supra), five MLAs from Haryana Janhit Congress wrote to the Speaker of their intention to merge with the INC which formed the Government in Haryana. The Speaker accepted the merger. Disqualification petitions under Paragraph 2(1)(a) of the Tenth Schedule were instituted. The Speaker incessantly adjourned the proceedings and did not decide on the disqualification petitions for more than seven months. One of the orders of adjournment was challenged before the High Court. The High Court directed the Speaker to decide the petitions within four months, stayed the order recognizing the merger, and declared the five MLAs to be unattached members. The High Court directed that the five MLAs would neither be treated as a part of the INC nor the Haryana Janhit Congress, and they would only have a right to attend the session. On appeal, a two-Judge Bench of Supreme Court of India set aside the direction declaring the five MLAs as unattached members. In Kuldeep Bishnoi (supra), the issue before Supreme Court of India was whether the High Court could have passed an interim order declaring members of the House as unattached members when disqualification petitions were pending against them. Supreme Court of India answered in the negative. It observed that the MLAs were entitled to function without any restrictions. Supreme Court of India in Kuldeep Bishnoi (supra) did not address the argument of whether the outcome of the proceedings of the House in the period intervening the prohibitory act and decision in the disqualification petition would be subject to the decision. Thus, the contention that has been raised by the petitioners needs to be considered afresh by Supreme Court of India., Article 191(2) provides that a person shall be disqualified for being a member of the Legislative Assembly if they are so disqualified under the Tenth Schedule. Article 190(3) stipulates that if an MLA incurs a disqualification under the provisions of Article 191(2) read with Tenth Schedule, their seat shall thereupon become vacant: (3) If a member of a House of the Legislature of a State (a) becomes subject to any of the disqualifications mentioned in clause (1) or clause (2) of Article 191; or (b) resigns his seat by writing under his hand addressed to the Speaker or the Chairman, as the case may be, and his resignation is accepted by the Speaker or the Chairman, as the case may be, his seat shall thereupon become vacant. The term thereupon denotes that the seat becomes vacant only from such date when the Speaker decides the disqualification petition. An MLA has the right to participate in the proceedings of the House until they are disqualified. Articles 189(2) and 100(2) (the corresponding provisions for Parliament) stipulate that the validity of any proceedings of the legislature shall not be questioned on the ground that it was discovered subsequently that a legislator who was not entitled to vote or sit, took part in the proceedings. Article 189(2) is extracted below: (2) A House of the Legislature of the State shall have power to act notwithstanding any vacancy in the membership thereof, and any proceedings in the Legislature of a State shall be valid notwithstanding that it was discovered subsequently that some person who was not entitled so to do sat or voted or otherwise took part in the proceedings. The provisions of Article 189(2) will have no bearing on the determination of this issue because members of the House lose their right to participate in the proceedings of the House only upon their disqualification. The decision of the Speaker does not relate back to the date when the MLA indulged in prohibitory conduct. The decision of the Speaker and the consequences of disqualification are prospective., Article 189(2) would only apply where it is subsequently discovered that an MLA was not entitled to have voted. That situation does not arise here. Therefore, it was not necessary for the respondents to take recourse to Article 189(2). The proceedings of the House cannot be subject to the decision in the disqualification petitions when the decision is prospective. Moreover, the interpretation advanced by the petitioners would render the parliamentary system of governance unworkable. Parliament undertakes innumerable functions on the floor of the House, including passing legislations and approving the annual budget. These actions of the legislators are irrevocable except in accordance with law. The constitutional sanctity of the proceedings in Parliament or the state legislatures cannot be set in a state of uncertainty. To allow the validity of such proceedings to be subject to a future decision would lead to chaos. For the above reasons, the action of the House in electing the Speaker, Mister Rahul Narwekar, on 3 July 2022 is not invalid merely because some MLAs who participated in the election faced disqualification proceedings. We accordingly answer the question referred to us as noted in Paragraphs 32(d) and 32(e) of this judgment., The respondents have challenged the communication of the Deputy Speaker dated 21 June 2022 appointing Mister Ajay Choudhari as the Leader of the SSLP. The petitioners have challenged the communication of the Speaker dated 3 July 2022 by which the appointment of Mister Ajay Choudhari was cancelled and Mister Shinde was appointed as the Leader of the SSLP; and Mister Gogawale was appointed as the Chief Whip in place of Mister Sunil Prabhu. Before adjudicating on the validity of the impugned communications, it is necessary to answer the preliminary objection that the courts cannot inquire into communications recognizing the Whip and the Leader of a legislature party because of the bar under Article 212 of the Constitution., Article 212(1) stipulates that Supreme Court of India shall not inquire into the validity of the proceedings of the Legislature of a State on the ground of any alleged irregularity of procedure: 212. Courts not to inquire into proceedings of the Legislature. - (1) The validity of any proceedings in the Legislature of a State shall not be called in question on the ground of any alleged irregularity of procedure., Supreme Court of India has on earlier occasions construed the scope of the restriction on judicial review of proceedings of the Legislature under Article 212 (and the corresponding provision for Parliament, Article 122). In Special Reference No. 1 of 1964 (Powers, Privileges and Immunities of State Legislatures), a seven-Judge Bench observed that Article 212 only restricts judicial review on the ground of irregularity of procedure and that proceedings of the legislature can still be challenged if the procedure is illegal and unconstitutional. In Raja Ram Pal (supra), a Constitution Bench held that legislative proceedings can be challenged on the grounds of substantive illegality or unconstitutionality. In Justice K.S. Puttaswamy v. Union of India (Aadhaar), one of the issues before Supreme Court of India was whether Article 212 precluded judicial review of the Speaker's authorization of a Money Bill. Sikri, J. writing for the majority observed that Article 212 only limited challenges on the ground of irregularity of procedure and not substantive illegality. One of us (D.Y. Chandrachud, J.) observed in his dissenting opinion that Article 212 does not preclude judicial review of proceedings of a Legislature if the decision of the Speaker suffers from illegality or a violation of constitutional provisions. In Roger Mathew v. South Indian Bank Ltd., Supreme Court of India observed that a gross violation of the constitutional scheme cannot be considered a procedural irregularity. Supreme Court of India has consistently held that a substantive illegality or a violation of a constitutional provision is distinct from a mere irregularity of procedure and is amenable to judicial review., Similar provisions barring Supreme Court of India from interfering on the ground of irregularity of procedure occur in the Code of Criminal Procedure 1973. Section 465 of the CrPC provides that a finding or a sentence cannot be reversed solely on the ground of irregularity of proceedings unless, in the opinion of Supreme Court of India, there has been a failure of justice., The concept of irregularity of procedure is also common in service jurisprudence. In the context of regularisation of employment, Supreme Court of India has held that while employees who were irregularly appointed can be regularised, those appointed illegally cannot. In State of U.P. v. Desh Raj, this Supreme Court of India held that an appointment which was made throwing all constitutional obligations and statutory rules to the winds would render the same illegal whereas irregularity presupposes substantial compliance with the rules. Thus, the issue of whether the action violating a procedure would render the proceedings irregular or illegal is specific to the context of each case. It depends on the purpose of the prescribed procedure and the consequence of non‑compliance with such procedure. This is true across diverse areas of law., The House of the People and the Legislative Assemblies of States are constituted of members directly elected by the electorate. The candidate who secures the highest number of votes is returned to the Assembly. The political party which reaches the half‑way mark forms the government. A coalition of political parties may form the government if no single political party reaches the half‑way mark. Articles 75 and 164 provide that the Council of Ministers is collectively responsible to the House of the People and Legislative Assembly of the State respectively. The legislators who are directly elected by the people have a duty to hold the executive accountable on the floor of the House. Legislative procedures serve two objectives—first, they enable deliberation and discussion on the floor of the House to hold the executive accountable, and such deliberation also produces better constitutional outcomes; and second, they create a system to place a check on the exercise of power by the incumbent government. Certain procedural requirements prescribed by the Constitution safeguard constitutional values. This is reflected in Article 368 which prescribes a special majority to amend certain constitutional provisions, which according to the members of the Constituent Assembly hold a higher constitutional (and democratic) value. Certain other legislative procedures further democratic processes and accountability, and prevent the concentration of power in the hands of the incumbent government. Article 212 cannot be interpreted as placing all procedural infringements beyond the pale of judicial review. Such an interpretation would completely disregard the importance of legislative processes in a constitutional democracy., The distinction between irregular procedure and illegal procedure must be drawn based on the nature of the procedure which was violated, and the impact of such a violation on democratic ideals. An infringement of a procedure would be irregular if the purpose of such procedure is unrelated to democratic ideals and its violation does not go to the root of democratic processes., Supreme Court of India observations on the interpretation of Article 212 highlighted above do not make a distinction between irregularity and illegality solely based on the source of law. The distinction is not based on whether the procedure is entrenched in the Constitution but whether it is crucial for the sustenance of democracy. A violation of a procedure that fulfils the twin objectives highlighted above and which is necessary for the sustenance of parliamentary democracy would render the action illegal. On the other hand, a violation of a procedure that establishes orderliness may only be irregular., In Ramdas Athawale v. Union of India, a member of the Lok Sabha challenged the validity of the proceedings in the Lok Sabha on the ground that the President had not addressed both Houses of Parliament under Article 87 when the session commenced on 29 January 2004 which was the first session of the year. The Speaker ruled that the sitting on 29 January 2004 could not be deemed to be the first session of the year merely because it was the first session of the calendar year, and that at best, it could be treated as the second part of the fourteenth session of the Thirteenth Lok Sabha. Supreme Court of India held that in view of the bar under Article 122, the issue of whether the sitting on 29 January 2004 was a new session or a second part of the same session was a matter relating purely to the procedure of Parliament.

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