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The appellants were the petitioners in Writ Petition No. 112171 of 2015 and connected matters in which they had challenged the acquisition of their lands in Muchakandi and Bagalakote villages of Bagalakote District under two notifications issued by the respondents. The petition was dismissed by the learned Single Judge by a common judgment dated 10 December 2021. Being aggrieved, the appellants are before us in these appeals., Under the impugned notifications, about 1,275 acres of land were acquired in Muchakandi and Bagalakote villages of Bagalkot District for the purpose of implementing Unit III of the Upper Krishna Project (UKP). It is stated that since 1985, lands have been acquired for implementing the UKP, which was for the public purpose of irrigating large tracts of land in various districts of North Karnataka extending up to Yadagiri., There is no dispute that an award dated 30 December 2010 was passed by the Krishna Water Dispute Tribunal II permitting the increase of the dam height from 523 metres to 525 metres, which would have submerged large extents of land in Bagalkot. The impugned notifications were issued for establishing a township to rehabilitate and resettle people displaced by such submergence., The learned Single Judge raised two questions for consideration upon hearing the submissions of counsel on both sides: (a) Whether the issuance of the declaration under Section 6(1) of the notification was issued beyond the period of one year stipulated in the first explanation of Section 6, thereby rendering it nullified? (b) Whether the State was justified in acquiring additional lands of about 1,643 acres for establishing Bagalkote-Navanagar Unit III under the impugned notifications?, On the first question, taking note of the relevant dates and the provisions of the Land Acquisition Act, 1894 (the Act), the learned Single Judge recorded a finding in the negative. The discussions are at paragraphs 29 to 43 of the impugned judgment. The correctness of this finding has not been seriously contested before us by the learned Senior Counsel Sri Ashok Haranahalli, appearing for the appellants. In any case, the relevant dates noted by the learned Single Judge have not been disputed, and we are satisfied that no other conclusion on this point is possible., Extensive submissions were made before us by learned Senior Counsel on both sides. Submissions for the appellants were led by Sri Ashok Haranahalli, learned Senior Counsel, assisted by Sri Basavaraj Godachi, Advocate, and learned Counsel Sri C.V. Angadi. Submissions for the respondents were led by learned Senior Counsel Sri M.R. Naik, assisted by Sri G. K. Hiregoudar, learned Advocate., After hearing the submissions of learned Senior Counsel on both sides, we are satisfied that there is no merit in these appeals and they are liable to be dismissed., The moot points before us necessitate treatment of the extent of judicial review permissible under Article 226 of the Constitution of India in a matter of this nature, as well as the nature and extent of the State's power to acquire lands under the umbrella provision of public purpose. We have no doubt that the law on both these heads admits no ambiguity, leaving no scope for further elucidation in view of the chain of decisions emanating from the Supreme Court of India; nevertheless, we are treating the same in some detail out of deference to the painstaking submissions made by the learned Senior Counsel on both sides., Before dealing with the facts of the case, we deem it appropriate to consider the extent of judicial review permissible in a case of this nature and also the extent of power available to the State for acquiring lands in question for public purpose., As noted, under the impugned notifications, a large extent of land was acquired for the rehabilitation of people displaced by the implementation of Unit III of the Upper Krishna Project. There is no dispute that the project was to be implemented in various stages to meet the needs of large tracts of parched land assessed by experts as arable with scientific irrigation. There is also no dispute that a dam was built several decades ago, benefiting tens of thousands of hectares of land in various districts of North Karnataka, and the comprehensive plan envisaged implementation of Unit III. A subsequent development in 2010 permitted the State Government to utilize additional volumes of water (303 thousand million cubic feet) for satisfying local needs in adjoining districts of the dam area. Therefore, there was an urgent need to utilize the benefits emanating from the award passed by the Krishna Water Dispute Tribunal II to promote public welfare., In Narmada Bachao Andolan v. Union of India, the Supreme Court of India observed: 'There are three stages with regard to the undertaking of an infrastructural project. One is conception or planning, second is decision to undertake the project and the third is the execution of the project. The conception and the decision to undertake a project is to be regarded as a policy decision. While there is always a need for such projects not being unduly delayed, it is also expected that a thorough study will be undertaken before a decision is taken to start a project. Once such a considered decision is taken, the proper execution of the same should be undertaken expeditiously. It is for the Government to decide how to do its job. When it has put a system in place for the execution of a project and such a system cannot be said to be arbitrary, then the only role which a court may have to play is to see that the system works in the manner it was envisaged.', When an irrigation project is conceptualized and planned with the avowed objective of benefiting a large number of people, especially since the project is visualized for the purpose of providing irrigation for promoting agriculture, which is the lifeblood of about 60% of the population of the State, and the acquisition is for rehabilitating people displaced by the execution of the irrigation project, the courts should view curial challenges with extreme caution and interference should be limited only where a clear case of violation of the Constitution or any other statutory rights is made out., The Supreme Court of India observed: 'In exercise of its enormous power the court should not be called upon to undertake governmental duties or functions. The courts cannot run the Government nor can the administration indulge in abuse or non-use of power and get away with it. The essence of judicial review is a constitutional fundamental. The role of the higher judiciary under the Constitution imposes a great obligation as the sentinel to defend the values of the Constitution and the rights of Indians. The courts must act within their judicially permissible limitations to uphold the rule of law and harness their power in the public interest. It is precisely for this reason that it has been consistently held that in matters of policy the court will not interfere. When there is a valid law requiring the Government to act in a particular manner, the court ought not, without striking down the law, give any direction which is not in accordance with law. In other words, the court itself is not above the law.', The Supreme Court of India in Tata Cellular v. Union of India observed that the scope of judicial review must not be so broad as to turn agencies into mere conduits for court cases, nor so restricted as to prevent full inquiry into legality. It emphasized deference to administrative expertise and noted practical considerations such as judicial calendar pressure, which often lead to perfunctory affirmation of agency decisions., The observation in Tata Cellular emphasizes the need for courts to tread carefully in cases where the State demonstrates that projects involving land acquisition are based on expert studies, careful weighing of pros and cons, and urgency for public use. Such decisions constitute implementation of a policy for promoting public welfare, and once demonstrated, courts are required to show deference to the views of the administration., In Jal Mahal Resorts Private Limited v. K. P. Sharma, the court observed that where a policy decision taken in 1976 involved a master plan for a public‑private partnership, interference by the court should be limited to cases of illegality or arbitrariness, as excessive probing could derail execution of an administrative decision that serves public interest., Governance is a complex task. The State is charged with the onerous responsibility of promoting public welfare. The project in question is of mammoth proportion. The Supreme Court has cautioned that in matters of this nature, the constitutional court should not smell foul play merely because of minor errors pointed out by aggrieved petitioners., The Upper Krishna Project was conceived due to severe drought affecting large parts of North Karnataka. The River Krishna has abundant water which remained unharnessed. Popular demand for water and scientific advice called for action. The project culminated from these factors, and the government naturally has a mandate to implement it as part of a welfare state., The Supreme Court of India in Narmada Bachao Andolan formulated the limitation on judicial review when a project is pursuant to a policy: courts should not become an approval authority for public projects and policies initiated by the Government. If a considered policy decision has been taken and is not in conflict with law or mala fide, it is not in public interest for the court to investigate executive functions. For projects of national importance involving multiple states and approved by the Planning Commission, courts should not review the decision unless there is blatant illegality., The Supreme Court has underscored the need for careful balancing of interests in cases of judicial review and cautioned that where the impugned action seeks to implement a policy benefiting large sections of the population or an important economic measure, judicial intervention should be employed only when demonstrably inevitable., The Supreme Court in Ramniklal N. Bhutta v. State of Maharashtra observed that land acquisition proceedings are part of an ambitious programme of economic advancement. While courts may grant stays or injunctions, the power under Article 226 is discretionary and should be exercised in furtherance of justice, balancing public and private interests. Courts may direct damages if acquisition is vitiated, but quashing acquisition is not the only remedy., In sum, when a governmental measure implements a mega‑infrastructure project pursuant to a policy framed with expert opinion, courts should refrain from acting as super‑accountants; interference should be extremely rare and only when inevitable. Courts lack the expertise and political mandate to decide comparative merits of policy options, and should not substitute their view for that of the executive., We also consider the scope of the State's power to acquire land for public purpose. The law is no longer res integra. The judgment of Justice Venkatarama Ayyar in P. Thambiran Padayachi & Others v. State of Madras (AIR 1952 Madras 756) defines public purpose as an object or aim in which the general interest of the community, as opposed to the particular interest of individuals, is directly and vitally concerned., In Hamabai v. Secretary of State, the Privy Council observed that the Government are good judges of public purpose, though not absolute judges, and courts would not easily hold them wrong. Thus, the acquisition must be held valid., The Supreme Court of India has cautioned that although courts are generally not entitled to go behind the government's declaration that an acquisition is for public purpose, judicial review is permissible where the power of acquisition is exercised in a colourable manner or as a fraud on power. The observation in Somawanti v. State of Punjab underscores this principle.
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Though we are of the opinion that the courts are not entitled to go behind the declaration of the Government to the effect that a particular purpose for which the land is being acquired is a public purpose, we must emphasise that the declaration of the Government must be relatable to a public purpose as distinct from a purely private purpose. If the purpose for which the acquisition is being made is not relatable to public purpose then a question may arise whether, in making the declaration, there has been a fraud on the power conferred upon it by the Act. In other words the question would then arise whether that declaration was merely a colourable exercise of the power conferred by the Act, Writ Application No. 100139 of 2022 cognizant with Writ Application No. 100062 of 2022, and therefore the declaration is open to challenge at the instance of the party aggrieved. To such a declaration the protection of Section 6(3) will not extend. For, the question whether a particular action was the result of a fraud or not is always justiciable, provisions such as Section 6(3) notwithstanding., The Hon'ble Supreme Court of India in Daulat Singh Surana v. First Land Acquisition Collector, after an elaborate survey of the case laws on public purpose, observed as follows: A seven‑Judge Bench of this Court in State of Karnataka v. Ranganatha Reddy explained the expression public purpose in the following words: It is indisputable and beyond controversy, as held by this Court in several decisions including the decision in Kesavananda Bharati v. State of Kerala, popularly known as the Fundamental Rights case, that any law providing for acquisition of property must be for a public purpose. Whether the law of acquisition is for public purpose or not is a justiciable issue, but the decision is not to be given by a detailed inquiry or investigation of facts. The intention of the legislature has to be gathered mainly from the Statement of Objects and Reasons of the Act and its Preamble., The matter must be examined with reference to the various provisions of the Land Acquisition Act, 1894, its context and set‑up; the purpose of acquisition has to be culled out therefrom and then it has to be judged whether the acquisition is for a public purpose within the meaning of Article 31(2) and the law providing for such acquisition. When we ascertain the content of public purpose, we have to bear in mind that acquisition of road transport undertakings by the State will undoubtedly be a public purpose. Even in England, public purposes have been defined to mean such purposes of the administration of the Government of the country (Words & Phrases Legally Defined, 2nd Ed.). Theoretically there is no warrant for linking public purpose with State necessity, or for the court to throw off the State's declaration of public purpose to make an economic research on its own. Section 40(b) of the Land Acquisition Act, 1894, takes the concept of public use to include acquisition for the construction of some work even for the benefit of a company, provided such work is likely to prove useful to the public. The American Constitution, in the Fifth Amendment, uses the expression public use and it has been held in India in Kameshwar that public purpose is wider than public use., As can be noticed from the above, the Hon'ble Supreme Court of India has held that the power of acquisition for public purpose is wider than that under the doctrine of public use in America., The Hon'ble Supreme Court of India in Sooraram Pratap Reddy v. Collector considered the exercise of eminent domain power in US jurisdiction as well as British jurisdiction and observed as follows: In Hawaii Housing Authority v. Midkiff, the Court held that there is a role for courts to play in reviewing a legislature's judgment of what constitutes a public use, even when the eminent domain power is equated with the police power. But the Court in Berman made clear that it is extremely narrow. The Court emphasized that any departure from this judicial restraint would result in courts deciding what is and what is not a governmental function and invalidating legislation on the basis of their view on that question. The court would not substitute its judgment for a legislature's judgment as to what constitutes a public use unless the use is palpably without reasonable foundation. Recently, in Susette Kelo v. City of New London the landowners challenged the city's exercise of eminent domain power on the ground that it was not for public use. The project in question was a community project for economic revitalisation of the city of New London for which the land was acquired., The Court described the Fort Trumbull area as situated on a peninsula that juts into the Thames River, comprising approximately 115 privately owned properties and 32 acres formerly occupied by a naval facility. Parcel 1 is designated for a waterfront conference hotel at the centre of a small urban village that will include restaurants and shopping, as well as marinas for recreational and commercial uses and a pedestrian riverwalk. Parcel 2 will be the site of approximately 80 new residences organised into an urban neighbourhood linked by a public walkway to the remainder of the development, including the State park, and will also include space for a new US Coast Guard Museum. Parcel 3, located immediately north of the Pfizer facility, will contain at least 90,000 square feet of research and development office space. Parcel 4A is a 2.4‑acre site that will be used either to support the adjacent State park by providing parking or retail services for visitors, or to support the nearby marina. Parcel 4B will include a renovated marina and the final stretch of the riverwalk. Parcels 5, 6 and 7 will provide land for office and retail space, parking, and water‑dependent commercial uses., The Court also stated two polar propositions are perfectly clear. On the one hand, it has long been accepted that the sovereign may not take the property of A for the sole purpose of transferring it to another private party B, even though A is paid just compensation. On the other hand, it is equally clear that a State may transfer property from one private party to another if future use by the public is the purpose of the taking; the condemnation of land for a railroad with common‑carrier duties is a familiar example. The Court noted the contention of the petitioners that using eminent domain for economic development impermissibly blurs the boundary between public and private takings. It also conceded that the Government's pursuit of a public purpose might benefit individual private parties, but rejected the argument by stating: When the legislature's purpose is legitimate and its means are not irrational, our cases make clear that empirical debates over the wisdom of other kinds of socio‑economic legislation are not to be carried out in the Federal Courts., In both Daulat Singh Surana and Sooraram Pratap Reddy, the Hon'ble Supreme Court of India has extensively surveyed English law, American law and authorities such as Nichols on Eminent Domain, Cooley on Constitutional Limitations, Hugo Grotius, and Willis on Constitutional Law, and has constructed the concept of public purpose in India. There may be many processes of satisfying a public purpose. A wide range of choices may exist. The State may walk into the open market and buy items, movable and immovable, to fulfil the public purpose; or it may compulsorily acquire from a private person's possession and ownership the articles needed to meet the public purpose; it may requisition, instead of resorting to acquisition; it may take on loan or hire or itself manufacture or produce. All these steps are various alternative means to meet the public purpose. The State may need chalk or cheese, pins, pens or planes, boats, buses or buildings, carts, cars, or eating houses or any other of the innumerable items to run a welfare‑oriented administration or a public corporation or answer a community requirement., The nexus between the taking of property and the public purpose springs necessarily into existence if the former is capable of answering the latter. If the purpose is for servicing the public, as governmental purposes ordinarily are, then everything desiderated for subserving such public purpose falls under the broad and expanding rubric. On the other hand, if the purpose is a private or non‑public one, the mere fact that the hand that acquires or requires is Government or a public corporation does not make the purpose automatically a public purpose. For example, if a fleet of cars is desired for conveyance of public officers, the purpose is public. If the same fleet of cars is sought for fulfilling the tourist appetite of friends and relations of the same public officers, it is a private purpose. If bread is seized for feeding a starving section of the community, it is a public purpose, but if the same bread is desired for the private dinner of a political maharajah who may pro tem fill a public office, it is a private purpose. Of course, the thing taken must be capable of serving the object of the taking; you cannot take buffaloes to run bus transport., On a meaningful reading of the various decisions of the Hon'ble Supreme Court of India, particularly in Somawanti, Daulat Singh Surana and Sooraram Pratap Reddy, the following conclusions are inescapable: (i) Public purpose is bound to vary with times and prevailing conditions in the community or locality, and therefore the legislature has left it to the State Government to decide what public purpose is and to declare the need of a given land for that purpose. The Government has the sole and absolute discretion in the matter. (ii) Public purpose cannot and should not be precisely defined; its scope and ambit are not static. Broadly speaking, public purpose means the general interest of the community as opposed to the interest of an individual. (iii) The power of compulsory acquisition, described by the term eminent domain, can be exercised only in the interest and for the welfare of the people. The concept of public purpose should include matters such as safety, security, health, welfare and prosperity of the community or public at large. (iv) A public purpose is thus wider than a public necessity. Purpose is more pervasive than urgency. Public purpose should be liberally construed, not whittled down by logomachy. (v) Though the courts are not entitled to go behind the declaration of the Government to the effect that a particular purpose for which the land is being acquired is a public purpose, the declaration of the Government must be relatable to a public purpose as distinct from a purely private purpose. If the purpose for which the acquisition is being made is not relatable to public purpose, a question may arise whether the declaration involves a fraud on the power conferred by the Act, making it a colourable exercise of power and open to challenge. To such a declaration the protection of Section 6(3) will not extend, because the question whether a particular action was the result of fraud is always justiciable, provisions such as Section 6(3) notwithstanding., Declaration of public purpose in the acquisition notification is final as far as curial challenge to the same is concerned, except in the rare cases where a colourable exercise of such power or fraud on power is demonstrated before a Constitutional Court., Learned Senior Counsel Sri Ashok Haranahalli has assailed the legality of the acquisition on two principal grounds. Firstly, he contended that an opportunity was given to the appellants by direction of a learned Single Judge in collateral proceedings (Writ Petition Nos. 1021, 80102221 of 2014, disposed on 25‑06‑2014) to raise objections to the Section 4(1) notification by filing a statement of objections before the State Land Acquisition Officer. He argued that the objection was not considered by the State Land Acquisition Officer in accordance with law. Secondly, he submitted that the subject acquisition was not supported by public purpose and was in fact a colourable exercise of power and therefore illegal. On the second aspect, he made several ancillary submissions which will be taken note of at a later stage., Learned Senior Counsel Sri M.R. Naik was equally vehement that both the contentions and ancillary submissions made in support thereof are factually incorrect and bereft of legal basis., By direction of the learned Single Judge of this Court in collateral proceedings initiated by the appellants, the State treated the notification initially issued under Section 17 of the Land Acquisition Act, 1894 as one under Section 4(1) of the Act and permitted the parties to submit their objections, which are in the nature of objections filed under Section 5‑A of the Act. There is no dispute on this aspect from either side. Drawing our attention to the objections filed by the appellants, Senior Counsel Sri Ashok Haranahalli made painstaking efforts to substantiate his contention that the objections, particularly the disproportionate extent of land being acquired for the supposed fulfillment of public purpose, are patently irrational. He argued that acquiring fertile agricultural lands for rehabilitation when alternative dry lands equally suitable were available and not considered by the competent authority., Senior Counsel Sri M.R. Naik, on the other hand, took us through individual objections filed by the appellant land‑losers and a report of the competent authority. He submitted that the objections taken are vague and general in nature and therefore the competent authority was handicapped in meeting the said objections. By way of illustration, he noted that the appellants merely stated that alternative lands are available which are non‑agricultural in nature for rehabilitation, without giving further particulars about location or area, making it impossible for the competent authority to identify them., The learned Single Judge observed: 'It cannot be disputed that each objection raised by a landowner or person interested in the lands sought to be acquired must be considered and disposed of by the Land Acquisition Officer fairly and objectively, but the objection must be of substance and stated with sufficient clarity and supportive material. The requirement of consideration of all objections is not ritualistic nor would the Court interfere merely because an objection is irrelevant or foolish. Only when fair and proper consideration of the objection may have changed the course of events will the Court view non‑consideration with concern. Where objections are without substance or wholly irrelevant, failure to deal with each objection would make no difference.', We have carefully perused the observations of the learned Single Judge and are in respectful agreement with his proposition of law. The statements of objections filed by the petitioners before the competent authority are extremely bald and general in nature, lacking specificity and incapable of being dealt with by the competent authority. As in N. Somashekar, while the petitioners contend that other non‑agricultural suitable lands are available, they have given no particulars for consideration., The grievance of the appellants is that the subject acquisition is not supported by public purpose and the specific public purpose stated in the notification was deviated, rendering it illegal. Senior Counsel Sri Ashok Haranahalli, to substantiate his contention, raised several ancillary contentions. He submitted that the State had frittered away a large extent of lands, namely 4,544 acres acquired during a previous acquisition in 1985‑86, which were supposed to cover the requirement of Unit‑I to Unit‑III of the Upper Krishna Project (UKP). The subject acquisition is purportedly to meet the requirement of implementing Unit‑III, which had already been served by the earlier acquisition; therefore, there is total absence of public purpose for the present acquisition., The document relied upon by Senior Counsel Sri Ashok Haranahalli is the vision document prepared before the acquisition of 4,544 acres during 1985‑86, showing the extent of land required for implementation of each project unit. The subject acquisition is for implementing Unit‑III of the project. However, the legality of the earlier acquisition is not in challenge now, and the lands required for Unit‑III are presently unavailable except for a meagre extent of slightly more than 100 acres, which is far less than required for the current project. Therefore, the existence of public purpose for the subject acquisition cannot be denied., The senior counsel further contended that the State, by frittering away the lands earlier acquired and allegedly utilizing them for unauthorized purposes, has engaged in foul play, suggesting a lack of public purpose for the present acquisition. He pointed out that the lands acquired during 1985‑86 were allotted to the Karnataka Industrial Areas Development Board, for establishing various public institutions, and for establishing an Agri‑techno‑park, etc. It was also suggested that some parcels of land earlier acquired found their way into the hands of private parties in shady deals., We agree with Senior Counsel Sri M.R. Naik that this last submission is not supported by any specific pleading before the learned Single Judge, thereby depriving the respondents of an opportunity to meet them, and consequently it was not dealt with by the learned Single Judge. In view of the limitations on exercise of judicial review in matters of this nature, as adumbrated by the Hon'ble Supreme Court of India, intervention is called for only when a violation of a constitutional right of a citizen is demonstrated, or when there is a colourable exercise of power or fraud on power. We are not satisfied that the senior counsel could make out any such case before us., Senior Counsel Sri M.R. Naik also contended that the acquisition proposal was not supported by sufficient data as to the number of families to be displaced on account of submergence resulting from increasing the height of the dam from 523 metres to 525 metres, and therefore the acquisition is irrational. Senior Counsel Sri M.R. Naik produced a large number of reports, including the survey report, which were available with the authorities when the subject acquisition proposal was mooted. We are satisfied from the material made available that the government had collected data regarding the number of families to be displaced, and once we are satisfied about the same, we cannot go into the sufficiency of the material for supporting the extent of acquisition made by the respondents., It is necessary to remind ourselves that the subject acquisition for rehabilitation of people displaced due to implementation of Unit‑III of the Upper Krishna Project cannot be seen in isolation and must be viewed from the overall perspective. The implementation of the UKP is an ongoing project meant to promote public welfare by irrigating tens of thousands of hectares of land extending up to Yadgir District. By any measure, it is a mammoth project. The State was bound to factor in, while acquiring lands for a project of this nature, various aspects such as area of submergence, possible number of families to be displaced, the inevitability that more families will require rehabilitation over time, and the impossibility of rehabilitating from the old habitat in the same manner in the new habitat to be built in the acquired land, given the compulsion warranted by new methods of town planning and concomitant requirement for civic amenities., Senior Counsel Sri M.R. Naik gave graphic details of the challenges before the respondents on account of the interjection of a supervising circumstance of a new district being formed in 1997 and the attendant need to develop Bagalkot into a well‑regulated township. He also submitted that this cannot be seen in isolation from worldwide development such as liberalisation of the economy and the need to accommodate industries, government offices and the views of funding agencies like the World Bank for overall planned development of Bagalkot.
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He also brought to our notice that on account of emerging scenario especially the new culture of planned development of the habitats, new laws have also come in for regulating town planning and in consonance with the same Bagalkot Town Development Authority (BTDA) was also constituted. The said BTDA is created to effectuate the purpose of the Karnataka Urban Development Authorities Act, 1987. Therefore, all the requirements under the same should be met in the land acquired where the displaced persons would be resettled. After hearing the elaborate submissions of both sides, we are completely satisfied that the subject acquisition has to be seen as in fulfillment of the requirement of execution of ongoing project of rehabilitating the project displaced families as part of integral development of WA No. 100139 of 2022 C/W WA No. 100062/2022 Bagalkot Town under BTDA which, perforce, should fulfill overlapping requirements and overlapping objectives. In that view of the matter, the purpose being demonstrably one to promote public welfare, we are not in a position to agree with the contention of the learned Senior Counsel that there is no public purpose in the acquisition. We cannot don the hat of a town planner or that of an accountant to minutely examine whether a slightly lesser extent of land would have fulfilled the objective or whether the project could have been implemented satisfactorily at another location. Such an exercise by us would tantamount to substituting our views to that of the State which has the advantage of expert advice. There is absolutely no material to support the contention that the acquisition is a colourable exercise of power and therefore, illegal. Once that is not demonstrated, no case is made out for our interference under the writ jurisdiction. As held in Ramaniklal N Bhutta, quashing of acquisition of lands made for a project of such public importance as in the current one should be a rare one and only when it is inevitable. We are not satisfied that this is not one such instance where such a case is made out. There may be some error here or some minor infractions there, but then in any human endeavour, infractions and violations of minor nature are inevitable; but, we are conscious that it is not for us to do nitpicking and smell foul‑play at mere whiff of a suggestion., Learned Senior Counsel Sri Ashok Haranahalli contended that the acquisition of large extent of fertile agricultural lands for rehabilitation purpose amounts to depriving livelihood of affected parties including the present appellants and the same has been frowned upon by the Honourable Supreme Court of India. In this behalf, he invited our attention to the decision of the Honourable Supreme Court of India in Raghbir Singh Sehrawat Vs. State of Haryana & Others. We have carefully perused the said decision rendered by a two‑judge bench of the Honourable Supreme Court of India. The Supreme Court in the said case was considering a 4(1) notification dated 22.06.2022 issued by the Government of Haryana for acquisition of 3,183 kanals 17 marlas (476 acres 5 kanals 17 marlas) in Sonepath District for development of Industrial Sector‑28. In the facts and circumstances of the said case, certain observations were made regarding massive acquisition of agricultural lands for the purpose of industry. Observations made therein were particular to the facts of the said case and no law was laid down to the effect that no agricultural property should be acquired for rehabilitation purpose., As already noticed, subject acquisition and the purpose sought to be achieved therefrom has to be seen in the overall circumstances of ongoing project of implementation of various phases of UKP and rehabilitation of displaced persons as a part of integral development of Bagalkot town. In that view of the matter, this contention of Sri Ashok Haranahalli also does not assist him. We are not satisfied that merely because the properties acquired are agricultural in nature, there is no public purpose sought to be sub‑served or that there was otherwise fraud on power or colourable exercise of power which alone provides us an occasion to interdict the acquisition. Accordingly, the appeals are devoid of merits and they are dismissed. Pending applications, if any, do not survive for consideration and accordingly, they are disposed of. Costs made easy.
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Santosh Mrs. Terezinha Martins David, daughter of the late Antonio Baptista, major of age, resident of House No.180, Mestabhat, Near the Pick‑up Stand, New Market, Margao, Goa, is the Appellant. The Respondents are: Miguel Guarda Rosario Martins alias Michael Rosario Martins, son of the said late Antonio Baptista Martins, aged about 49 years, married, businessman, and his wife Annie Martins, daughter of Salvador D'Souza, major of age, housewife, both residing at Lawrence Apartments, Opp. Agha Khan Road, Pajifond, Margao, Goa; Cruz I. Rosario Martins, son of the said late Antonio Baptista Martins, aged 57 years, married, businessman, and his wife Olinda Martins, daughter of Romano Araujo, aged 49 years, housewife, both residing at Coelho Apartments, Flat No.5, 3rd Floor, Opp. St. Sebastian Chapel, Aquem Alto, Margao, Goa; Judas Rome Rosario Martins, son of the said late Antonio Baptista Martins, aged 59 years, married, businessman, and his wife Joanita Martins, aged 54 years, businesswoman, both carrying on business at Indira Footwear, Indira Complex, Near Bus Stand, Ponda, Goa; Judith Martins, daughter of the said late Antonio Baptista Martins, aged 60 years, married, housewife, and her husband Jose Gracias, son of Joao Xaverino Gracias, aged 64 years, service, both residing at House No.496, Dandeavaddo, Chinchinim, Salcete, Goa, together with Lavita Joan Gracias, Jerryson Savio Gracias and Jovita Gracias; Eliza Martins, daughter of the said late Antonio Baptista Martins, aged 54 years, married, housewife, and her husband Custodio Costa, Inacio Piedade Costa, aged 58 years, service, residing at Flat No.B1(S‑2), Second Floor, Hema Apartments, Borda, Margao, Goa; Antonieta Martins, daughter of the said late Antonio Baptista Martins, aged 50 years, married, housewife, and her husband Nelson D'Souza, son of John D'Souza, aged 52 years, married, service, residing at Silver Arrow, First Floor, Flat No.102, Opp. Golden Orchard, Sundar Nagar, Kalina, Mumbai‑98, together with Sophia Scarlet D'Souza, Shawn D'Souza; and Cecil David, son of Jos David, aged 74 years, married, service, residing at Coelho Apartments, Flat No.5, 3rd Floor, Opp. St. Sebastian Church, Aquem Alto, Margao, Goa., Mr. C.A. Coutinho, with Mr. Ivan Santimano, are Advocates for the Appellant. Mr. A.F. Diniz, Senior Advocate, with Mr. Ryan Menezes and Ms. S. Alvares, are Advocates for Respondents No.1 and 2. The appeal was pronounced on 24 February 2023 and reserved on 16 March 2023., The appeal was admitted on 18 June 2008 on the following substantial questions of law: (A) Whether the Deed of Transfer dated 8‑9‑1990 is null and void as it was executed contrary to the provisions of Article 1565 read with Article 10 of the Civil Code, 1867; (B) Whether some of the co‑heirs could execute the Deed of Transfer dated 8‑9‑1990 without the consent of the Appellant who was also a co‑heir under Article 2016 read with Article 2177 of the said Code; (C) Whether non‑challenge to the consent decree passed in the suit in which the Appellant was not a party could defeat the alleged substantive rights of her inheritance to inherit the estate of the deceased; and (D) Whether, without any evidence on record, the suit could be held to be time‑barred when the Plaintiff claimed that cause of action arose on 26/6/1994 when she came to know for the first time of the deed executed on 8‑9‑1990, which deed was executed without consent., The Appellant is the original Plaintiff and the Respondents are the original Defendants in Special Civil Suit No.226/1994 instituted in the Court of Civil Judge, Senior Division, at Margao. The suit was instituted to declare the Transfer Deed dated 8‑9‑1990 null and void and to obtain a mandatory injunction for its cancellation. The Appellant also prayed for a permanent injunction to restrain Defendants No.1 to 4 from transferring or conveying the suit property based on the Transfer Deed dated 8‑9‑1990 without the written consent of the Appellant and other co‑owners., Mr. C.A. Coutinho, learned Counsel for the Appellant, submitted that upon the death of Antonio Baptista Martins, his estate was not inventoried nor partitioned through inventory proceedings or a deed of partition. He offered that the consent decree, upon which the impugned Transfer Deed dated 8‑9‑1990 was purported to be based, was made in a suit to which the Appellant was never a party. Accordingly, neither the Consent Decree nor the Transfer Deed made in pursuance of the same could bind the Appellant, given the provisions of Section 35 of the Specific Relief Act. He submitted that the two courts did not adequately appreciate this crucial aspect., Mr. Coutinho further submitted that the Transfer Deed dated 8‑9‑1990 violates the provisions of Articles 1565 and 2177, read with Article 10 of the Portuguese Civil Code, 1867, because the suit shop was not allotted to any of the transferees in the Transfer Deed. Moreover, Respondent No.3 (the mother) purported to sell her share to Respondent No.1 (her son). He relied on Robert Felicio Coutinho & Anr. vs. Maria Angelic Botelho D'Souza (deceased) through her L.R.s.1 in support of his contention., Mr. Coutinho submitted that the Respondents' defence about the oral partition is barred under Article 2184 of the Code. He submitted that the two Courts committed an error apparent on the face of the record in accepting such a defence. He relied on Tertuliano Renato de Silva & Anr. vs. Francisco Lourenco (2002) 1 Goa L.T. 109, Betterncourt De Silva & Anr., and Molu Custa Molic vs. Shrinivas Roghoba Molic & Ors. in support of this contention., Mr. Coutinho submitted that, in terms of Article 59 of the Limitation Act, 1963, a suit to cancel or set aside an instrument could be filed within three years from when the facts entitling the Plaintiff to have the instrument or decree cancelled or set aside first became known to him. He submitted that the onus of establishing that the Transfer Deed was known to the Appellant before 6/6/1994 was on the Respondents. He further submitted that there is no evidence on record to show that the Appellant was aware of the Transfer Deed before 6/6/1994; therefore, the finding on limitation was a perversity. He relied on K.S. Nanji and Company vs. Jatashankar Dossa and Others., Mr. Coutinho submitted that there were neither any pleadings nor any evidence to establish that the suit shop was, at any time, a partnership asset. Even the Transfer Deed records that the mother had half share in the suit shop when, admittedly, the mother was not even claimed to be the partner in the partnership firm. He submitted that no documents such as partnership deeds, balance sheets, etc., were produced on record to prove the partnership's existence as claimed., For all the above reasons, Mr. Coutinho submitted that the substantial questions of law, as framed, may be answered in favour of the Appellant and, based thereon, her suit should be decreed., Mr. A.F. Diniz, learned Senior Advocate for Respondents No.1 and 2, submitted that the finding about the suit being barred by limitation was a mixed question of law and fact. He submitted that the evidence on record backs the concurrent findings on this limitation issue and therefore no substantial question of law on the issue of limitation was involved in this Appeal. He relied on Jamila Begum (Deceased) thr. L.R.s. vs. Shami Mohd. (Deceased) thr. L.R.s. & Anr., Mr. Diniz further submitted that the Transfer Deed was based upon the consent decrees in earlier suits that the Appellant had full knowledge of. In the absence of any challenge to the consent decrees, the suit only to challenge the Transfer Deed made in pursuance of the consent decrees was not even maintainable. Accordingly, he submitted that the two Courts were justified in dismissing the Appellant's suit., Mr. Diniz submitted that the Appellant did not question the existence of a partnership between the father and two sons, at least qua the two shops, which was the subject matter of the consent decrees in two separate suits. He submitted that there was no evidence about the two shops being leased. He offered that the Appellant retained the space behind the shop and the earlier house of her father. He submitted that all this proves that the Appellant was duly settled by giving her a portion of her family estate at the time of her marriage. He submitted that these are findings of fact, backed by evidence on record, and therefore no substantial question of law arises in this Appeal., Mr. Diniz submitted that the Trial Court had dismissed the suit because the Appellant took no steps to appoint a guardian for Defendant No.4, who was admittedly of unsound mind. He submitted that this finding was not even challenged before the First Appellate Court and had, therefore, attained finality. He submitted that the non‑appointment of a guardian for an unsound Defendant is a vice that goes to the root of the maintainability of the suit, and therefore no case is made out to interfere with the impugned decrees., Mr. Diniz pointed out that this Appeal was dismissed against some of the parties considering the order dated 28/6/2007 and other orders on record. He submitted that dismissal of the Appeal against some of the Respondents entails dismissal of the entire Appeal as otherwise there would be inconsistent decrees regarding the same subject matter. He relied on Frank Moraes (Deceased) thr. L.R.s. vs. Joaquim de Mascarenhas & Ors., Mr. Diniz submitted that the evidence on record had established the existence of a family arrangement. He offered that such a family arrangement was binding upon the family members, who were estopped from setting up a case contrary to such a family arrangement. He relied on Kale & Ors. vs. Deputy Director of Consolidation & Ors., Mr. Diniz relied upon Md. Noorul Hoda vs. Bibi Raifunnisa & Ors. and Bahubali Estates Ltd. vs. Sewnarayan Khubchand & Ors. on the limitation and partnership issues. He submitted that this Appeal should be dismissed, relying upon these decisions., The rival contentions now fall for determination. The dispute in this Appeal concerns shop No.25 in the property known as \9th Plot of UDEGO or MESTABATA\, which bears Land Registration No. 9634 at Book B New and Matriz (Revenue) No.147 (rustic) and 123 (urban) and bears Chalta No.67 at P.T. Sheet No.239, at New Market in Margao City (suit shop)., The late Antonio Baptista Martins admittedly purchased the suit shop and the property beneath the same by a registered Sale Deed dated 12/1/1972. Accordingly, it was the Appellant's case that the suit shop and the property beneath the same were owned by her father Antonio and her mother Maria Matilda Virginia Martins (Defendant No.3). The Appellant pleaded that her father Antonio operated a shoe shop under the name and style of \Sapataria Modisto\ in the suit shop since much before the liberation of Goa, and this continued after the purchase of the suit shop in 1972., Antonio expired on 12/4/1980. His widow‑moiety holder Matilda (Defendant No.3) and his eight children survived him. The Appellant was the eldest daughter of Antonio and Matilda. All the Defendants, except Matilda, are the children, their spouses or legal representatives thereof. Antonio had not left any will or gift. However, a Deed of Succession was executed on 12/4/1994, which, according to the Appellant, establishes that she, along with other children/spouses, were the legal heirs of the late Antonio and Matilda., In the suit, the Appellant pleaded in paragraph 7 of the Plaint that she was shocked to learn about six weeks before the institution of the suit that a Transfer Deed was executed on 8‑9‑1990 by which Defendants No.3, 5, 6, 7 and 8 purported to transfer the suit shop in favour of Respondents No.1, 2 and 4 without consent or intervention of the Appellant and Defendants No.9 to 15. In paragraph 9 of the Plaint, the Appellant pleaded that on 8/8/1994 she saw Defendant No.1 negotiating with an unknown person to sell the suit shop and the property beneath the same. Consequently, on 9/8/1994 the Appellant caused a notice to be published in the daily \Herald\ cautioning the public about her undivided co‑ownership rights in the suit shop and the property beneath the same. Finally, in paragraph 13, the Appellant pleaded that the cause of action arose on or about 26/6/1994 when she came to know for the first time about the execution of the Transfer Deed dated 8‑9‑1990., In short, the Appellant's case in the Plaint is that she is the co‑owner of the suit shop and the property beneath the same, having inherited the same from her father, the late Antonio. She further pleaded that since the suit shop was purported to be transferred to Respondents No.1, 2 and 4 by Defendants No.3, 5, 6, 7 and 8 without her intervention or consent, such a Transfer Deed is null and void and, in any case, not binding upon her., Based upon this, the Appellant sought to declare the Transfer Deed dated 8‑9‑1990 as null, void and inoperative and to confirm that she has the undivided right in the suit shop and the property beneath the same. She also applied for a mandatory injunction to cancel the Transfer Deed and for a permanent injunction restraining Defendants No.1 to 4 from transferring or conveying the suit shop and the property beneath the same without the Appellant's and other co‑owners' written consent or from inducting any person into the suit shop in any capacity whatsoever., Defendants No.1, 2 and 10 filed a written statement and a counter‑claim. They submitted that the suit was barred by limitation because the Appellant was aware of the Transfer Deed dated 8‑9‑1990 more than three years before the institution of the suit on 30/8/1994. They submitted that the suit shop and the property beneath it was a partnership property operating under the name and style \Sapataria Modista\. They pleaded that this partnership was founded by the late Antonio and his three sons., They further submitted that Antonio had four sons and four daughters, of which one son, John Martins (Defendant No.4), was of unsound mind. Four daughters were settled by payment of sufficient dowry at their marriages, and the late Antonio and his three sons founded the partnership. The suit shop and the property beneath the same were brought into this partnership and were an asset of the partnership firm. Based upon all this, they contended that neither the Appellant nor her three sisters had any right, title or interest in the suit shop., The written statement pointed out that the family arrangement was made regarding two other shop premises, held by the partnership firm \Golden Footwear Agency\ and \Goodwill Footwear and General Stores\ operated by the late Antonio and three sons. In short, the contesting Defendants No.1, 2 and 10 pleaded that the suit shop and property beneath the same were partnership property, not ancestral property of the late Antonio and Matilda. They pleaded that there was a family arrangement in which the daughters were settled by paying dowry at their marriages and that the sons, in partnership with their father, operated three shops, including the suit shop. An oral partition was also raised in the written statement. Based upon all this, the contesting Defendants contended that the suit should be dismissed., The contesting Defendants raised a counter‑claim to declare the Deed of Succession dated 12/4/1994, made after Antonio's death, null and void. This counter‑claim was raised because the deed would contradict the case pleaded in the written statement about oral partition and the three shops being partnership assets., The Trial Court, by Judgment and Decree dated 31/05/2003, dismissed the suit and partly decreed the counter‑claim by cancelling the Deed of Succession. The First Appellate Court upheld the dismissal of the suit, set aside the Decree in the counter‑claim and upheld the Succession Deed showing the Appellant as one of the successors of the late Antonio Baptista Martins. The Appeal Court did not finally interfere with the Trial Court's Decree dated 31/05/2003 but held that the Appellant's contention based upon Articles 2177 and 1565 of the Code could have been accepted. The Appeal Court partly allowed the Appeal, set aside the Decree in the counter‑claim, thereby restoring the Succession Deed dated 12/4/1994, and also held that the suit was time‑barred., The first issue to be considered is the issue of limitation. Regarding this, reference must be made to the substantial question of law (D) at this Judgment's commencement. Mr. Diniz is justified in contending that the limitation, in this case, involved a mixed question of law and fact. However, the question is whether any evidence on record backs the fact‑portion of the finding or whether the same is a product of no evidence, as contended by Mr. Coutinho., The limitation period, in this case, was governed by the provisions of Article 59 of the Schedule to the Limitation Act, 1963. For a suit to cancel or set aside an instrument or a decree or for the rescission of a contract, the period of limitation prescribed is three years. The time for which this period begins to run is when the facts entitling the Plaintiff to have the instrument or decree cancelled or set aside first become known to him. Therefore, the crucial question, in this case, was when the Transfer Deed dated 8‑9‑1990 became known to the Plaintiff., In K.S. Nanji and Company (supra), while considering the expression \when the person having the right to the possession of the property first learns in whose possession it is\ in Article 48 of the old Limitation Act, the Hon'ble Supreme Court explained that where a person has a right to sue within three years from the date of his coming to know of a certain fact, it is for him to prove that he had the knowledge of the said fact on a particular date, for the said fact would be within his peculiar knowledge. Once sufficient evidence is adduced on this aspect, the onus would shift on the defendants., In Talyarkhan v. Gangadas I.L.R. (1935) 60 Bom. 848, Rangnekar, J., formulated the legal position thus: \The onus is on the Plaintiff to prove that he first learnt within three years of the suit that the property which he is seeking to recover was in the possession of the defendant. In other words, he has to prove that he obtained the knowledge of the defendant's possession of the property within three years of the suit, and that is all. If he proves this, then to succeed in the plea of limitation the defendant has to prove that the fact that the property was in his possession became known to the Plaintiff more than three years prior to the suit.\ The Hon'ble Supreme Court in K.S. Nanji (supra) specifically approved the above formulation. However, the two Courts in the present case have not applied the law as laid down by the Supreme Court and the High Court in evaluating the evidence on the limitation issue., Applying the law in the context of Article 59 of the Limitation Act, the Appellant would have to discharge the onus of proving that she first came to know of the facts entitling her to have the Transfer Deed dated 8‑9‑1990 set aside within three years from the date of institution of the suit on 30/8/1994. In other words, the Appellant had to prove that she became aware of the Transfer Deed about six weeks before the institution of the suit on 30/8/1994, as pleaded in paragraph 7 of her Plaint, and not at any time beyond three years from the date of institution of the suit., The Trial Court concluded that the suit was barred by limitation by observing that the Plaintiff, who is the elder sister of Defendant No.1 and stays at Margao and also occupies space at the back side of the suit shop, was fully aware of the proceedings of Special Civil Suit Nos. 105/1984/A, 77/1984/A and 78/1984/A which were pending between brothers in respect of the partnership business, and that all three suits came to an end by filing compromise terms in 1987. This observation, together with the fact that the Plaintiff had not mentioned that she was unaware of the Court proceedings or the Transfer Deed, formed the basis of the Trial Court's finding that the suit was barred by limitation. The finding was based on a slender foundation and failed to account for the evidence where the Appellant disclaimed knowledge about the Court proceedings to which she was not a party and, of course, the Transfer Deed., The Appellant consistently maintained that she came to know about the Transfer Deed hardly six weeks before the institution of the suit, which would mean she learned about the Transfer Deed on or about 19/7/1994 because the suit was instituted on 30/8/1994. She also pleaded that on 8/8/1994 she saw Defendant No.1 trying to negotiate with an unknown person about the sale of the suit shop, and she heard that Defendant No.1 was trying to sell the said property and suit shop. Mr. Diniz argued that there was a variation between the pleadings and proof, stating that the pleadings said the Appellant became aware of the Transfer Deed in July 1994, but in evidence she deposed about being aware on 8/8/1994, exposing inconsistencies. However, the time gap between 19/7/1994 and 8/8/1994 is not significant to invite adverse comments or to hold that the suit was barred by limitation., In my judgment, there is no evidence on record to show that the Appellant was aware of the Transfer Deed dated 8‑9‑1990 more than three years before the institution of the suit on 30/8/1994. Accordingly, the onus should shift upon the Defendants to establish that the Appellant had such knowledge, which they failed to do. The finding on limitation is therefore vitiated by perversity and the failure to apply correct legal principles., Md. Noorul Hoda (supra), relied on by Mr. Diniz, was a case of a benamidar who had full knowledge of the decree or instrument belatedly alleged to be the product of fraud. This was also a case of derivative title. In such peculiar facts, the bar under Article 59 was applied. This decision cannot assist the Respondents and is distinguishable on facts., Accordingly, the substantial question of law at (D) will have to be answered in favour of the Appellant and against the contesting Defendants., The next question which arises for consideration is whether the Appellant could have been non‑suited for failure to challenge the consent decree dated 7/3/1987 in Special Civil Suit No.105/1984/A. The Appellant was not a party to that suit. The consent decree dated 7/3/1987 recorded that Judas and Cruz Rosario Martins shall relinquish and surrender all their partnership and all other rights, interests and claims in the partnership business \Sapataria Modista\, having its premises at Shop No.25 at Francisco Loyola Road, New Market, Margao, Goa, in favour of Michael and John Martins. The pleadings in Special Civil Suit 105/1984/A are not on record, but there is no dispute that the Appellant was not a party to the civil suit.
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On the premises that the Appellant was the eldest sister in Martin's family and, therefore, she must have been aware of the litigation between the brothers, this inference could not have been drawn based upon the material on record. In any case, since the Appellant was not even a party to this suit, and the consent decree in this suit had merely recorded that the two brothers were surrendering their rights in favour of the other two brothers, there was no occasion for the Appellant to challenge this consent decree. Based upon such a decree in a suit to which the Appellant was not even a party, the Appellant's rights as a co‑owner could never have been defeated., Assuming that the Transfer Deed dated 8/9/1990 was a consequence of the consent decree dated 7/3/1987, it was sufficient for the Appellant to challenge the Transfer Deed because it is based on the Transfer Deed that the Appellant's brothers attempted to sell the co‑ownership property. Suppose party A commits to sell or surrender rights in the suit property to B, and a consent decree settles such dispute. In that case, it is not as if C, who is an actual owner of the suit property or who has the right and interest in the said property, cannot question the sale or surrender simply because C may not have challenged the consent decree in a suit between A and B. The consent decree in the suit, in no manner, binds C. Therefore, C was not obliged to challenge such a consent decree. However, it was sufficient for C to challenge the transfer or surrender effected pursuant to such consent decree because such transfer directly affected C's rights and interests in the suit property., The consent decree, in this case, only records the agreement or commitment to surrender or transfer. Therefore, even if the consent decree were to remain, it would not affect the Appellant's rights. The impugned Transfer Deed purports to affect the transfer of the suit shop to the detriment of the Appellant's rights as a co‑owner. After upholding the succession deed, at least, the Appeal Court could not have approved the trial Court non‑suiting the Appellant for want of challenge to the consent terms in a suit to which she was never a party., Therefore, the Appellant could not have been non‑suited for failure to challenge the consent decree dated 7/3/1987, which was, in any case, not binding upon the Appellant because the Appellant was not even a party in the suit where such consent decree was issued. Consequently, the substantial question of law at C will have to be answered favouring the Appellant., The next question is whether the Transfer Deed dated 8/9/1990 is void, being contrary to the provisions of Articles 1565 and 2177, read with Article 10 of the Code. This is reflected in substantial questions of law at (A) and (B) referred to above. In principle, even the Appeal Court has accepted the legal position favouring the Appellant, but due to the findings on other issues declined relief to the Appellant., Admittedly, the Appellant is the daughter of the late Antonio and Matilda. The Deed of Succession dated 12/4/1994 establishes this position without a doubt. The Appellant and most of the Defendants were involved in making this Deed of Succession dated 12/4/1994. Accordingly, the Appeal Court has dismissed the counter‑claim seeking cancellation of this Deed of Succession dated 12/4/1994. This dismissal was never challenged by the contesting Defendants who had raised the counter‑claim., Article 1565 of the Code provides that the parents or grandparents shall not be entitled to sell or mortgage to children or grandchildren if the other children or grandchildren do not consent to the sale or mortgage., In Pemavati Basu Naik and others versus Suresh Basu Naik and another, the High Court of Goa has held that under Article 1565 of the Code, there is an express bar under which the parents cannot sell immovable property to the children without the consent of all the children., In Norberto Paulo Sebastiao Fernandes and others versus Gabriel Sebastiao Idalino Fernandes and others, the learned Single Judge of the High Court of Goa expressly rejected the contention that provisions of Article 1565 of the Code stand repealed after the extension of the Transfer of Property Act, 1881 to Goa. On the contrary, the learned Single Judge (F. M. Reis, J.) held that the provisions of Article 1565 of the Code were enacted to protect and ensure that the legitimate heirs do not get affected and, as such, deal with succession. Under this provision, there can be no dispute that the parents are not entitled to convey and/or sell their property in favour of their children or grandchildren without the consent of other children/grandchildren., In Norberto Fernandes (supra), reliance was placed upon a decision of the Judicial Commissioner’s Court in Civil Revision Application No. 208/1980 (Dr. Couto, J.) in which the following observations were made: “7. Coming now to the merits of the Revision, I may say at the outset that the learned Judge did not commit any illegality, nor did he exercise his jurisdiction with material irregularity. Undoubtedly, the Transfer of Property Act repealed the Chapter of the Civil Code dealing with the contract of ‘purchase and sale’, but, as correctly observed by the learned Judge, Article 1565 is a provision by nature special and intimately connected with the succession law. In fact, the provision of Article 1565 is aimed to protect the shares in the estate of their parents guaranteed by law to the children. It specifically prohibits the sale or hypothecation of properties by the parents to any of their issues without prior consent of the other issues and therefore, is meant to defend the issues against collusions between the parents and any of them in prejudice of the others. The Portuguese succession law is still in force in this Territory and as such, the provision of Article 1565, being intimately connected to the said law, has to be construed as continuing in force. I, therefore, am unable to accept the contentions of the petitioners to the contrary.”, In Norberto Fernandes (supra), the learned Single Judge of the High Court of Goa referred to the commentary of Dr. Cunha Gonsalves, Tratado de Direito Civil, Vol. VIII pages 506‑507. The same reads: “On the contrary, the purchases and sales made with infraction of Article 1565, which the Ord. Felip. said were none or of no effect, are only relatively null or simply annullable. And it is not little; because this nullity has only the aim of impeding the efficious gifts; and it would be enough that the legislator submitted himself to the regime of these gifts, instead of radically annulling them. This nullity can only be applied for by any of the sons, whose consent would be needed for the validity of the contract. It is a case of protecting a merely private interest, exactly as in the case of the reduction of inofficious gifts. Can the Judge reduce a gift of such type, on his own, without any interested party applying for it, proving the inofficiousness? Certainly not. However, it is to be noted that, without prejudice to Article 1565 being a protection of the legitima (legitimate shares) of the descendants, there is no need to wait for the death of the father or grandfather to apply for the annulment of the sale, because it is not necessary to prove, concretely, the effects of the same legitimas; the suspicion is enough, the legal presumption of juris et de jure, that the same Article 1565 established, declaring the contract annulable. Finally, the case of Article 1565, without prejudice to the reference to the preceding articles, is not comprised in the sanction of Article 1567, as it can be inferred from the reference to interposed person. The sales or purchases by interposed person have the aim of illuding the prohibition of direct contracts. But, this can only have some efficacy, till the interposition is not discovered and proved, in the cases of Articles 1562, 1564 and 1565 and it would be absolutely useless in the remaining cases. For the interposition of person it would not be necessary that the law should prohibit to someone else the purchase of an undivided share, which prohibition does not exist in law. But, the sale of the undivided right, made to the interposed person, shall be covered by the preference, when the interposition is not discovered.”, Thus, from the above decisions, it is clear that the provisions of Article 1565 of the Code are still in force. Therefore, in terms of the said Article, Matilda, the mother, was not entitled to transfer her share in the suit shop to her two sons without the consent of the other sons and daughters. The Transfer Deed dated 8/9/1990 was thus hit by the provisions of Article 1565 of the Code, which are still in operation., Similarly, Article 2177 of the Code provides that a co‑owner may not, however, dispose of any specific part of the common property unless the same is allotted to him in partition; and the transfer of the right which he has to the share which belongs to him may be restricted in terms of the law. In Jose Antonio Philip Pascoal da Piedade Carlos dos Milagres Miranda versus Joao Luis Laurente dos Milagres Miranda, a co‑owner is not entitled to dispose of either the entire property or any specific portion unless and until his share is allotted, partitioned, and separated in loco., The contention about the repeal of Article 2177 of the Code by the provisions of Section 44 of the Transfer of Property Act, 1881, was rejected in the case of Robert Felicio Coutinho and another. In Caridade and another versus Domingos Fernandes and another, it was held that under the provisions of Article 2177, which are still applicable to the State of Goa, alienation of a property in the form of a Gift Deed by any donor unless the said property exclusively belongs to the donor is prohibited. In Joana Errie versus Albano Vaz and others, this Court has held that transfer by one co‑owner without consent of others is prohibited under Article 2177 of the Code, which continues to be in force in the State of Goa., The above position of law was reiterated in Norberto Fernandes (supra) by referring to the decision in Robert Felicio Coutinho (supra). The relevant observations read as follows: “Article 2177 of the Portuguese Civil Code deals with the substantive rights of the co‑owners and prescribes the mode or puts an embargo on unfettered rights to alienate the property held jointly by others. A procedural law can be deemed to have been repealed if it is in conflict with the general procedural law. Since this law deals with the substantive rights of the parties, the provisions of the Transfer of Property Act cannot be said to have impliedly repealed the provisions of the Portuguese Civil Code. The Transfer of Property Act is a general statute and the Portuguese Civil Code is a special statute. The provisions of the special statute, which is applicable to the State of Goa, would prevail over the provisions of the general statute. The learned Single Judge of the High Court of Goa in the matter of Jose Antonio Philip Pascoal da Piedade Cirilo dos Milagres Miranda and another versus Joao Luis Laurente dos Milagres Miranda and others, after careful consideration of Article 2177 of the Portuguese Civil Code, concluded that Article 2177 prohibits the alienation of a property in the form of a gift of any person unless the said property exclusively belongs to the donor. The learned Single Judge further held that Article 2177 does not entitle the co‑owner to dispose of either the entire property or any specific portion of any property unless and until the share of such co‑owner is allotted, partitioned and separated in loco.”, Therefore, given the provisions of Articles 1565 and 2177 of the Code, it is apparent that the Transfer Deed dated 8/9/1990 was null and void. Furthermore, the suit shop was not allotted to the transferors in the Transfer Deed dated 8/9/1990 either by a Deed of Partition or any inventory proceedings. Consequently, the transferors were only co‑owners, entitled to an undivided share in the suit shop, and could not have transferred this suit shop in disregard of the provisions of Articles 1565 and 2177 of the Code., Possibly to escape from the consequences of Articles 1565 and 2177 of the Code, the contesting Defendants raised a plea that the suit shop was a partnership asset or that there was an oral partition between the family members. Both pleas are not identical and, to some extent, inconsistent. However, Mr. Diniz pointed out that the Defendants are entitled to raise even mutually incompatible pleas by way of defence., There is no evidence whatsoever that the suit shop was brought into the firm's stock. The suit shop was neither acquired nor purchased by the so‑called firm. There is no evidence of registration of the firm, nor of the suit shop being declared as the firm's asset in any statutory or non‑statutory returns or accounts. On the contrary, a registered partnership deed was produced in Bahubali Estates Ltd. Besides, there was overwhelming evidence that the property was throughout treated as partnership property. There were admissions, and the conduct also established this position., In Lachhman Das versus Gulab Devi, All India Reporter 1936 All 270 (D.B.), it was held that persons may be mere co‑owners of a property and may be partners in the profits made out of its use. Thus persons may be co‑owners of a coal mine—take the case of two brothers to whom it may have been devised by the will of their father. However, the mere fact that they work the mine in partnership does not make the mine itself a part of the partnership property. The mere use of the property by the partnership for its business does not make the property belong to the partnership., The same effect is observed in Arm Group Enterprises versus Woldorf Restaurant, AIR 2003 SC 4106 and Arjun Tankar versus Shantaram Tankar (1969) 3 SCC 555., In any case, property that does not even exclusively belong to the so‑called partners cannot become partnership property to the exclusion of the other co‑owners of the property who are not partners in the firm. Regarding the partners, the issue of partnership property may be relevant, but not regarding co‑owners who have nothing to do with the alleged partnership or its business., Therefore, in this case, it is evident that the plea of partnership property was a weak and misconceived attempt to ward off the legal effects of Articles 1565 and 2177 of the Code. Moreover, both in terms of the consent decree and the case of a partnership as pleaded, Matilda was never a partner in the so‑called partnership. Yet Matilda was one of the transferors in the impugned Transfer Deed dated 08/09/1990. The deed refers to Matilda as the moiety holder having half rights to the suit shop. If Matilda, the mother, had rights to the suit shop, then even the family's daughters had rights of co‑ownership to the suit shop by the same logic. The contesting Defendants never explained this aspect., As to the plea of oral partition, firstly, there is no evidence whatsoever to sustain such a plea. Merely stating that there was some family arrangement by which four daughters of Antonio and Matilda were given dowry at the time of their marriages is insufficient to spell out the ingredients of the family arrangement or an oral partition. Secondly, in terms of Article 2184 of the Code, a partition which is merely severance of a joint status cannot be effected orally and must be by a written document., The decision in Kale and others (supra) does not apply to the facts of the present case because there are neither any serious pleadings nor any proof about a family arrangement. Kale and others (supra) was a case where a family partition was pleaded and proved. Further, some parties seeking to deny the existence of such family arrangements had taken advantage of the same family arrangement. The Supreme Court of India held that the doctrine of estoppel would be attracted. The factual position in the present case is not at all comparable., Regarding oral partition, a reference can be usefully made to the provisions of Article 2184 of the Code, which provides that the partition of immovable assets is null if not carried out in a public deed or public proceedings. Thus, the Defendants have neither proved that there was any oral partition. Moreover, given the provisions of Article 2184, such an oral partition is not even contemplated under the Portuguese Civil Code of 1897. Thus, the substantial questions of law at (A) and (B) will have to be answered in favour of the Appellant., The objection based upon the non‑appointment of a legal guardian for Defendant No. 4 does not survive because Defendant 4, impleaded as Respondent No. 4 in this Court, expired and was deleted from the array of Respondents. Admittedly, Respondent No. 4 died a bachelor, leaving no legal representatives other than those already on record. Respondent No. 5 was even appointed as a guardian on behalf of Respondent No. 4 in this Court., The interest of Respondent No. 4 was adequately represented by Respondent No. 1 and also Respondent No. 5 before the Trial Court and the First Appellate Court. Moreover, the First Appellate Court did not even go into appointing a guardian for Respondent No. 4 before the Trial Court. In any case, after the demise of Respondent No. 4 without leaving behind any legal representatives other than those already on record, there is no good reason to deny the Appellant relief in this Appeal., The last contention that the Appeal was dismissed against some of the Respondents for failure to take steps to serve them is also not well founded. No formal orders for dismissal are found on record. Ultimately, all the Respondents were duly served and had full opportunity to contest this Appeal. In the peculiar facts of the present case, orders would not result in any contradictory decrees. The contesting Respondents were served, and they contested these proceedings vigorously. Based upon this ground, no relief can be denied to the Appellant., The evidence on record shows that the joint family property was purported to be exclusively usurped by the brothers to exclude the sisters. Merely because one of the sisters deposed in favour of the brothers does not mean that the issue of family arrangement or oral partition was duly proved. There is no evidence about providing a sufficient dowry to the daughters of the house. However, even if it is assumed that some dowry was provided to the daughters, that does not mean that the daughters cease to have any right in the family property. The rights of the daughters could not have been extinguished in the manner in which they have been attempted to be extinguished by the brothers, post the father's demise., Mr. Coutinho explained that no suit was filed regarding two other shops because the family did not own the said shops; the family only had tenancy rights. In this case, the Deed of Succession stands under the judgment and decree of the Appellate Court. The Deed of Succession recognizes the Appellant as one of the legal representatives of deceased Antonio and Matilda. Considering this position, the suit should have been decreed and not dismissed., Therefore, for all the above reasons, the substantial questions of law are answered in favour of the Appellant., The Appeal is allowed, and the suit is decreed in terms of the prayer clauses (a), (b), and (c) of the plaint, which read as follows: (a) declaring that the deed dated 8/9/90, registered with the Sub‑Registrar of Salcete under No. 672 at pages 259 to 275 in Book I, Volume 220, is null, void and inoperative and that no title in the same is passed to the Defendants Nos. 1, 2, and 4 and further that the Plaintiff has an undivided right in the same; (b) granting a mandatory injunction directing the Sub‑Registrar of Salcete, Margao, to cancel the registration in their records under No. 672 at pages 259 to 275 in Book I, Volume 220 and directing the Defendants Nos. 1, 2, 3, and 4 to produce the original of the said deed for cancellation and ordering the cancellation of the same by this Hon’ble Court for all intents and purposes; (c) granting a permanent injunction restraining the Defendants Nos. 1, 2, 3, and 4 from transferring or conveying the said property in any manner whatsoever to any person ever in the future except with the written consent of the Plaintiff and other co‑owners of the same, and/or from inducting any person into the same in any capacity whatsoever., Miscellaneous applications, if any, are also disposed of. There shall be no order for costs.
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30 March 2022 Sl. 5 Writ Petition Application 13701 of 2021 Madam Abdul Gani Ansari, State of West Bengal & Ors.; Mr. Firdous Samim, Ms. Gopa Biswas for the petitioner; Dr. Sutanu Kumar Patra, Ms. Supriya Dubey for the State Service Commission; Mr. Raja Saha, Mr. Sandip Dasgupta, Mr. Shamim ul Bari, Mr. Saquib Siddiqui, Mr. Aviroop Mitra for the State; Mr. Biswaroop Bhattacharya, Mr. Dipanjan Kundu, Ms. Mayuri Ghosh for respondent No. 14; Mr. Subhankar Nag, Mr. Jasojeet Mukherjee for respondents Nos. 8, 10 and 11; Mr. Kanak Kiran Bandyopadhyay for respondent No. 13; Ms. Koyeli Bhattacharya for the Board., On 25.03.2022 I passed an order directing Mr. S. P. Sinha to file an affidavit of assets. He was made a party in Writ Petition Application 13701 of 2021, i.e., the writ application which is being dealt with now., Against this order dated 25.03.2022 passed by the Calcutta High Court, an appeal was preferred by Dr. S. P. Sinha being MAT 447 of 2022., Today, a copy of the order passed by the Honourable Division Bench comprising Justice Harish Tandon and Justice Rabindranath Samanta has been handed over to me., On a careful reading of the said order I find as follows: My observations made in the order dated 25.03.2022 have been declared by the appeal bench as tentative. How this declaration is made and why, is not known. There is no reason. Thus, the Calcutta High Court's observation has been diluted., Regarding my finding as to illegal appointments it is held by the Division Bench of the Calcutta High Court that it was a perceived notion, when the illegal appointments are hard facts that have come before me. I do not know why such diluting word notion has been used., The appeal bench has also taken into account the thought process behind the direction passed upon the appellant to file an affidavit of assets. I do not know how the thought process of this Judge can be known. Is this a comment on adjudication or something else, I do not know., The appeal bench held that we do not find any element warranting interference at this stage but after holding that there is no element warranting interference, the appeal bench interfered in the order and held: The affidavit of assets shall remain in a sealed cover and shall not be divulged or circulated to the litigating parties or their counsel. That shall be appropriately dealt with at the time of final decision to be taken on the issues involved therein., I do not know what the Calcutta High Court will do with a sealed cover in this proceeding when the hand of the appeal bench has been tied by the above observation. I have been prevented from taking any consequential step by going through the said affidavit of assets. It is also not understood by me how at the time of final decision the sealed cover would be appropriately dealt with, as for dealing with the sealed cover supposedly containing the affidavit of assets other steps were required to be taken for adjudication by the Single Bench but I have been prevented by the Division Bench's order., I find that the Division Bench has fixed a course of action to be followed by the Single Judge. There is absolutely no reason why I have been prevented in such a manner. In a sense the hands of the Single Judge have been tied though it has been stated by the appeal bench that it does not find any element warranting interference with the said order at that stage. This is, I am sorry to say, a highest degree of double standard expressed by the appeal bench for reasons best known to it. But to maintain judicial discipline I have to accept such order., I also do not understand who would be benefited by tying up the hands of the Single Judge when it has been made clear in the order dated 25.03.2022 that this court has found that there are serious illegalities in giving recommendations to ineligible candidates and the tip of the corruption iceberg in issuing illegal recommendations is seen which is getting gradually bigger. However, when my hands are tied from taking further steps, after receiving the affidavit of assets I will not be able to proceed with the same. I do not understand what a court of law will do with a sealed envelope containing therein some papers which could be an affidavit of assets., Therefore, this matter is required to be adjourned for some days. It has been submitted by the learned advocate of Mr. S. P. Sinha that the affidavit of assets in a sealed cover will be filed on 5th April 2022. I adjourn this matter till 5th April 2022 when it will appear under the heading To Be Mentioned. (Abhijit Gangopadhyay, Justice)
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Criminal Miscellaneous Petition No. 2579 of 2013. Petitioners: Rakesh Rajput and Reena Rajput. Versus: The State of Jharkhand and Anita Singh. For the petitioners: Ms. Ashma Khanam, Advocate. For the State: Mr. Sanjay Kumar Srivastava, Additional Public Prosecutor. For Opposite Party No. 2: Mr. Soumitra Baroi, Advocate. Heard on 31 October 2023 by Ms. Ashma Khanam, learned counsel for the petitioners, Mr. Sanjay Kumar Srivastava, learned counsel for the State and Mr. Soumitra Baroi, learned counsel for Opposite Party No. 2., This petition has been filed for quashing of the entire criminal proceedings, including the order taking cognizance dated 14 June 2013, passed in connection with Criminal Petition No. 996 of 2013, pending in the Court of the learned Judicial Magistrate, Dhanbad., The complaint case was filed alleging that the marriage of the complainant was solemnised with Sanjeev Kumar on 8 June 1998 at Dhanbad, during which several articles and cash were given. It was also alleged that the petitioners had tortured her. When her family visited Noida, she was assaulted by Surendra Prasad Singh and the petitioners were said to have connived with them. Their wedlock produced two children. It was further alleged by the complainant that on 2 April 2013, while she was staying at Flat No. 401, Ganesh Apartment, Jarodih, Dhanbad, Reena Rajput came to her house along with her father, assaulted her and tried to burn her face. It was stated that Reena Rajput is only the sister of Sanjeev Kumar and she is concerned about her brother's career; since the business at Noida has been wound up, she wanted the complainant's father to provide money to her brother to start a new business., Ms. Ashma Khanam, learned counsel appearing for the petitioners, submits that petitioner No. 1 is the brother‑in‑law of the complainant (Opposite Party No. 2) and petitioner No. 2 is the sister‑in‑law of the complainant. She further submits that they are residing at Hyderabad, whereas the alleged occurrence took place at Dhanbad. She also submits that the husband of Opposite Party No. 2 has filed a divorce case numbered H.M.A. Petition No. 541 of 2013. She further submits that the present complaint case was filed on 18 April 2013 and that, as far as these petitioners are concerned, only general and omnibus allegations have been made against them. She draws the attention of the Jharkhand High Court to Annexure‑2 and submits that on 1 April 2013 petitioner No. 2 was travelling, and the allegations that on 2 April 2013 torture was made by these petitioners falsify the case against the petitioners, who happened to be brother‑in‑law and sister‑in‑law of the complainant respectively., Mr. Soumitra Baroi, learned counsel for Opposite Party No. 2, submits that there are allegations against these petitioners and, in view of that, no case of interference is made out. He further submits that these are questions of fact that can only be appreciated in the trial., Mr. Sanjay Kumar Srivastava, learned counsel for the State, submits that the Jharkhand High Court has taken cognizance pursuant to the complaint petition., In view of the above facts and submissions of the learned counsel for the parties, the Jharkhand High Court has gone through the complaint petition as well as the documents brought on record, including the order taking cognizance. It is an admitted fact that petitioner No. 1 is the brother‑in‑law of Opposite Party No. 2 and petitioner No. 2 is the sister‑in‑law of Opposite Party No. 2. They are residing at Hyderabad, whereas the alleged place of occurrence is Dhanbad. Paragraph 8 of the complaint petition alleges that on 2 April 2013 the accused came to Dhanbad and tortured the complainant, whereas Annexure‑2, a document issued by the South Central Railway, clearly shows that petitioner No. 2 was travelling on 1 April 2013, with three berths allotted to passengers named Rina Rajput, Ananya Rajput and Diksha Rajput, indicating that a false statement was made in paragraph 8 of the complaint petition., With the laudable object of punishing cruelty at the hands of a husband or his relatives, Section 498A of the Indian Penal Code was inserted in the statute. There has been a phenomenal increase in matrimonial disputes in recent years and it appears that in many cases the provision is being misused as a weapon rather than a shield by disgruntled wives. The Honourable Supreme Court in the case of Arnesh Kumar v. State of Bihar, reported in (2014) 8 SCC 273, issued guidelines on how to arrest a person against whom matrimonial disputes exist., The Supreme Court has observed that most complaints under Section 498A IPC are filed in the heat of the moment over trivial issues without proper deliberation, many of which are not bona fide and are filed with an oblique motive, while genuine cases of dowry harassment also remain a serious concern. The learned members of the Bar have a social responsibility to ensure that exaggerated versions of small incidents are not reflected in criminal complaints, to maintain the noble traditions of the profession, and to help parties arrive at amicable resolutions. They must discharge their duties to preserve the social fabric, peace and tranquillity of society, and ensure that one complaint does not lead to multiple cases., The Supreme Court further noted that at the time of filing a complaint, the complainant often does not visualise the implications and consequences, which can lead to insurmountable harassment, agony and pain to the complainant, the accused and his close relations. The ultimate object of justice is to find the truth, punish the guilty and protect the innocent, a task that is often Herculean in these complaints. Courts must be extremely careful and pragmatic in dealing with matrimonial cases, especially when allegations involve the husband’s close relations who live in different cities and rarely visit the complainant’s residence., Experience reveals that long and protracted criminal trials lead to rancour, acrimony and bitterness among the parties, and if the husband or his relations are incarcerated even for a few days, it can ruin the chances of an amicable settlement., The Supreme Court in the case of Geeta Mehrotra v. State of Uttar Pradesh, reported in (2012) 10 SCC 741, and in the case of K. Subba Rao v. State of Telangana, reported in (2018) 14 SCC 452, has cautioned courts to be careful in proceeding against distant relatives in crimes pertaining to matrimonial disputes and dowry deaths., Applying these principles to the present case, it is clear that the allegations in paragraph 8 of the complaint are contradicted by the railway record showing that petitioner No. 2 was travelling with her two children on the relevant date, and no specific role of the petitioners has been disclosed. The complaint contains only general and omnibus allegations against the petitioners, who are the brother‑in‑law and sister‑in‑law of the complainant., In view of the foregoing and the absence of any specific role attributed to the petitioners, it would be unjust to force them to undergo a trial. Accordingly, the entire criminal proceedings, including the order taking cognizance dated 14 June 2013, passed in connection with Criminal Petition No. 996 of 2013, pending in the Court of the learned Judicial Magistrate, Dhanbad, are quashed. It is clarified that no interference is made with other accused persons, and the learned Court will proceed in accordance with law. The petition is allowed and disposed of. (Sanjay Kumar Dwivedi, Judge).
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Raj Ali and others petitioner(s) Through: Mister Gagan Basotra Senior Advocate with Mister Sahil Gupta and Mister Nadeem Bhat Advocates. Union of India and others Respondent(s) Through: Miss Monika Kohli Senior Additional Advocate General., The petitioner is essentially and primarily aggrieved by orders dated 03.07.2023 passed by the Additional Deputy Commissioner, Kishtwar whereby the management of Madrassas run by the petitioners has been ordered to be taken over with a further direction to the petitioners to immediately hand over possession of the buildings of the Madrassas to the District Administration through the Tehsildar concerned., The impugned orders have been assailed by the petitioners primarily on two grounds: that the order dated 14.06.2023 passed by the Divisional Commissioner, Jammu pertains to the Madrassas being run by Maulana Ali Miyan Educational Trust, Bathindi and therefore could not be applied to the petitioners' Madrassas which have nothing to do with that Trust; and that the impugned orders passed by the Additional Deputy Commissioner, Kishtwar taking over the Madrassas of the petitioners are violative of principles of natural justice, in that no opportunity of being heard was given by the respondents before passing the impugned order., After giving preliminary hearing to Mister Basotra, learned Senior Counsel appearing for the petitioners, Miss Monika Kohli, learned Senior Additional Advocate General, was put on short notice to confirm whether the Madrassas of the petitioners are being run by a charitable educational trust different from Maulana Ali Miyan Educational Trust, Bathindi. She, on instructions, reported that the petitioners' trusts, which are running Madrassas in the District of Kishtwar, are prima facie not connected or related to the Maulana Ali Miyan Educational Trust, Bathindi. She, however, submitted that the investigation into illegal funding of these Madrassas is an ongoing exercise and the respondents are free to initiate action against any such Madrassas found involved in anti‑national or anti‑social activities and also those who are not in a position to explain the source of their funding., Having heard learned counsel for the parties and perused the material on record, I am of the considered view that the order passed by the Divisional Commissioner, Jammu dated 14.06.2023 is very specific and pertains only to the Madrassas being run by Maulana Ali Miyan Educational Trust, Bathindi. The Divisional Commissioner, Jammu has not passed any order in respect of other Madrassas which are being run by other educational charitable trusts established for the purpose. The Additional Deputy Commissioner, Kishtwar was therefore not correct to apply the order of the Divisional Commissioner to close down or take over the Madrassas run by the petitioners' trusts, unless he had in possession substantial proof that the Madrassas of the petitioners are connected or related to the Maulana Ali Miyan Educational Trust, Bathindi. For coming to such conclusion, at least the petitioners should have been put on notice and given an opportunity to explain their position. Obviously, this has not happened in the instant case. The impugned orders, on the face of it, are passed without giving an opportunity of hearing to the petitioners and without holding any enquiry into the matter., In view of the above, this petition is allowed by holding that the order of the Divisional Commissioner, Jammu dated 14.06.2023 is applicable only to the Madrassas run by Maulana Ali Miyan Educational Trust, Bathindi and cannot be universally applied to all the Madrassas being run legitimately in the Union Territory of Jammu and Kashmir. Consequently, the impugned orders passed by the Additional Deputy Commissioner, Kishtwar dated 03.07.2023 in respect of Madrassas being run by the petitioners are quashed. It is, however, made clear that in case during any inquiry or investigation it comes to the notice of the respondents that the Madrassas being run by the petitioners or others are operating in violation of law of the land, the respondents are free to initiate appropriate action, but no order adverse to the interest of the petitioners shall be passed without putting them to notice and providing them adequate opportunity of hearing.
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Petitioner Versus Respondents. The State of Maharashtra Through the Public Prosecutor High Court, Bombay 1/74 rrpillai2023:BHC-AS:27116-DB 902-WP-97-2021.docx Mr. Prabhjit Jauhara / w. Mr. Niranjan Mundargi, Ms. Keral Mehta and Mr. Vikrant Shinde / b. Ms. Jai Abhyudaya Vaidya for the Petitioner. Ms. Lata Desai, Senior Advocate / w. Dr. Pallavi Divekar, Ms. Manasihirve / b. Ms. Darshana Pawar for Respondent No. 1. Ms. P. P. Shinde, APP for the State. CORAM: Revati Mohite Dere & Gauri Godse, JJ. Reserved on: 31st July 2023. Pronounced on: 14th September 2023., Judgment (per Gauri Godse, J.): This petition is filed by the father of a minor child seeking a writ of habeas corpus for directing Respondent No.1 – mother – to produce the child before this court. At the time of filing of the petition on 30th December 2020, the child was one year old. By way of amendment, the petitioner seeks a direction against the respondent to hand over physical custody of the child to the petitioner for taking the child to the United States of America in compliance with the order dated 26th January 2021 of the 470th Judicial District Court of Collins County, Texas. By way of amendment, the petitioner also prays for directing the respondent to hand over all official documents of the child, including the original passport and visa, to the petitioner. Presently, the child is around three years old., Respondent is the petitioner's wife and mother of the child. The petitioner and respondent are citizens of India; however, they are permanent residents of the United States. The child is a citizen of the United States by birth. The petition was filed on 30th December 2020 as the respondent had refused to allow the petitioner to meet the child and had refused to return to the United States along with the child., Before dealing with the rival contentions of both parties, it is necessary to note the status regarding access and physical custody granted to the petitioner during the pendency of the petition. After the petition was filed, by way of interim relief, the petitioner was permitted access through WhatsApp video calls. This court, by order dated 12th January 2021, recorded the statement made on behalf of the respondent that access would be given to the petitioner through WhatsApp video call. The petitioner continued to get access through WhatsApp video call every day for a minimum of 20 minutes. By orders dated 13 October 2021 and 17th November 2021, physical access was also given when the petitioner travelled to India. This court, by order dated 28th October 2021, recorded that the petitioner met the child and the interaction was cordial. Since the parties were agreeable to explore the possibility of an amicable settlement, they were permitted to meet at the mediation centre of this court. With respect to the access through video calls, the earlier arrangement was continued., By order dated 6th December 2022, the petition was admitted and, by consent of the parties, they were granted time to submit modalities of visitation rights of the petitioner to meet. By order dated 16th December 2022, it was recorded that under the orders of this court, the petitioner had availed visitation rights and was well aware of the whereabouts of the child; hence, the petition was disposed of., Feeling aggrieved by the order dated 16th December 2022, the petitioner approached the Honorable Supreme Court. The Honorable Supreme Court, by order dated 13th March 2023, allowed the appeal preferred by the petitioner and set aside the order dated 16th December 2022. By the said order, the present petition was directed to be restored for a fresh decision. The Honorable Supreme Court observed that all the rights and contentions of the parties, including any objections the respondent may have on the maintainability of the habeas corpus petition, were kept open. The Supreme Court further observed that endeavour may be made for expeditious disposal of this petition. Hence, this petition was heard by us for final disposal., For considering the various submissions made on behalf of both parties, it is necessary to note the relevant undisputed dates and sequence of events as follows: 2002‑2005: The petitioner was studying in Texas, United States and has been living there since 2002‑2005. 31st March 2010: The petitioner and respondent got married in Mumbai under the Special Marriage Act, and the same was duly registered. 29th May 2010: The petitioner and respondent performed a traditional ceremony of their marriage in Mumbai. 16th June 2010: The petitioner and respondent went to the United States with the intention of permanently settling down and thus started residing in the matrimonial home in Texas. 17th June 2010: The petitioner and respondent remarried in the Texas Family Court, United States and submitted to the jurisdiction of that court. August 2011: Respondent completed her MBA from the University of Texas, the entire expenditure of USD 20,000 being borne by the petitioner. 2010‑April‑2019: Petitioner and respondent continuously resided in Dallas in various apartments. January 2014: Respondent obtained an internship with Ericsson and subsequently a job with Sodexo, becoming financially independent. February 2016: Respondent suffered a miscarriage and thereafter was unable to conceive naturally; the parties decided to have a child through an IVF procedure. 20th January 2017: Petitioner purchased a house in Texas in the joint name of the petitioner and respondent. April 2019: The parties agreed to have their child born in the United States; the respondent started IVF in the United States and conceived. May 2019: Respondent’s parents came to the United States and stayed with the parties for three to four months until August 2019. 20th August 2019 to 1st November 2019: The petitioner’s parents stayed with the parties in the United States and organised a baby shower. November 2019: Respondent’s parents again came to stay with the parties in view of the due date. 25th December 2019: The child was born in Texas, United States. 23rd October 2020: Both petitioner and respondent were granted green cards, enabling permanent residence in the United States. 4th November 2020: Both parties received their green cards. 14th November 2020: The United States passport of the child was delivered to the parties. 19th December 2020: Visa of the child for travel to India was delivered to the parties. 20th December 2020: Respondent booked tickets for travel to India for herself, her parents and also booked return tickets for herself to return to the United States on 13th January 2021. 21st December 2020: Petitioner and respondent, along with the parents of the respondent and the child, landed at Mumbai Airport. Respondent left the airport with the child to stay with her parents for two days and was to go to the petitioner’s parents’ house on 23rd December 2020 to celebrate the child’s first birthday on 25th December 2020. 24th December 2020: Respondent sent a WhatsApp message to the petitioner that he should not try to contact her and that she would not be visiting the petitioner’s parents’ home. On the same day, the petitioner made an application to R.A. Kidwai Police Station, informing them that he was unable to contact the respondent. 25th December 2020: Respondent did not visit the petitioner’s parents’ house at Wadala, Mumbai; consequently, the petitioner visited her parents’ house to enquire and wish on his birthday. The respondent’s parents’ house at Nerul, Navi Mumbai, was found locked; the petitioner was informed that they had left on 24th December 2020. The petitioner was unable to contact the respondent or locate his son. Repeated calls to the respondent went unanswered and both the respondent and the child were untraceable. The petitioner reported the matter to Seawood Police Station and filed a complaint by email to the United States Embassy alleging that the child, a United States citizen, was abducted. 30th December 2020: The petitioner filed the present petition seeking a writ of habeas corpus for producing the child before this court. 8th January 2021: In view of the inter‑parental abduction of the child, the petitioner filed a petition for legal separation and custody of the child in the Collin County Court, Texas, United States. 11th January 2021: Petitioner filed an Emergency Motion before the United States court; on the same date, the respondent was directed to return to the United States by 25th January 2021. 13th January 2021: Respondent filed a domestic‑violence proceeding in Belapur Court, and the proceedings were served on the petitioner on 20th January 2021. 20th January 2021: Petitioner left for the United States to resume his work. 21st January 2021: Respondent filed a divorce proceeding in the Thane Court. 26th January 2021: The United States Court passed an order directing the respondent to return the child to the United States by 29th January 2021, holding that the Texas Court had jurisdiction; the petitioner was appointed temporary sole managing conservator of the child and was given the sole right to possess and renew the child’s passport. 2nd February 2021: The petitioner amended the present petition seeking custody of the minor pursuant to the United States Court order. 12th February 2021: Respondent continued her job in the United States by working from home but tendered her resignation in February 2021. 28th April 2021: The Collin County Court, Texas, United States, finally decided the matrimonial dispute on merits after a full trial and granted divorce and irrevocable custody of the child to the petitioner., We have heard the learned counsel for both parties at length., Submissions on behalf of the petitioner: The entire marital life of the petitioner and respondent of more than ten years was in the United States. Though the petitioner and respondent got married under the Special Marriage Act in Mumbai, after travelling to the United States the parties remarried in the Family Court in Texas and thus submitted to the jurisdiction of the Texas Court, which is the most competent court to adjudicate matrimonial and custody disputes between the parties. The petitioner and respondent were gainfully employed in the United States and had purchased a house in joint names there. With the intention of permanently settling in the United States, the parties decided to have their child born in the United States. After the respondent suffered a miscarriage, the parties opted for IVF, which was completed in a United States hospital, and they consciously decided to make the child a United States citizen. After the child was born in the United States, the parties decided to visit India and booked return tickets, but the respondent unilaterally changed her decision and refused to return to the United States with the child. The respondent never made any complaint alleging physical or mental torture. Only after this court granted access to the respondent through WhatsApp video calls did the respondent file a domestic‑violence proceeding by making false and baseless allegations, and as a counter‑blast filed divorce proceedings in the Thane Court. During their ten‑year stay in the United States, the respondent’s parents as well as the petitioner’s parents visited and stayed with them. Respondent’s parents stayed in the United States at the time of the child’s delivery and thereafter. Considering that the child is a United States citizen and the parties always intended to make the child a United States citizen with the intention of residing permanently in the United States, it is in the child’s welfare to be repatriated to the United States. It is the child’s fundamental right to have the company and love of both parents and, being a United States citizen, the child will have better prospects of education and social security in the United States. The petitioner filed substantive custody proceedings in the Texas Court, which passed orders in favour of the petitioner directing the respondent to hand over custody of the child. The respondent has not challenged the Texas Court order. Accordingly, the respondent cannot disregard orders of the Texas Court; she may approach that court for modification if aggrieved. No orders have been passed in favour of the respondent in any Indian proceedings; the respondent’s Indian filings appear to be a counter‑blast to the petitioner’s Texas proceedings. The respondent has not disputed the chronology of events pleaded by the petitioner and has only narrated incidents after the parties arrived in India on 21st December 2020. Considering the facts, it is beneficial for the child to stay in the United States, where the petitioner resides, and the child is entitled to comprehensive health‑care facilities and insurance there. The petitioner has been a Senior System Analyst at Sirius XM since 2018, works mostly from home, and the petitioner’s mother is willing to move to the United States in case of repatriation, holding a ten‑year United States visa, ensuring adequate caretakers. The petitioner is also a certified Cricket Australian Coach, an excellent cook, and can provide both American and Indian cultural exposure. Respondent is a Green Card holder, permanent resident of the United States, highly qualified with an MBA in Finance and Accounting from the United States, and would face no difficulty returning to the United States. The learned counsel for the petitioner submitted that the entire sequence of events shows the parties always intended to permanently settle in the United States and raise their child there. No material on record suggests any risk of harm to the child if repatriated. There are no orders in favour of the respondent regarding custody; therefore, the respondent has illegally detained the child in India, contrary to the child’s welfare and interest., Submissions on behalf of the respondent: The learned senior counsel for the respondent submitted that the dates and events narrated by the petitioner’s counsel show that the petitioner acted hastily, approaching the police without waiting a day and alleging abduction. The child is around three years old today and is in the lawful custody of his biological mother. There are no compelling circumstances to uproot the child, who is in the respondent’s custody, from India; in the United States the child would be left to the mercy of outside help, whereas in India the child’s grandparents are available to care for him. Hence, it is beneficial for the child to stay in India and be brought up in his native place. The learned senior counsel further submitted that after the parties arrived in Mumbai there was an argument at the airport and subsequent messages; the petitioner’s interpretation of a one‑day absence of the respondent as abduction lacks substance. Instead of initiating appropriate proceedings under the Hindu Minority and Guardianship Act, 1956, the petitioner instructed his US lawyer to file separation and custody proceedings while he was in India, and there was no pre‑existing order, making the habeas corpus petition non‑maintainable. All decisions relied upon by the petitioner involved pre‑existing orders, which are absent here. The child has roots in India, and uprooting him to a foreign land is not in his interest. The respondent relied upon the Honorable Supreme Court decision in Nithya Anand Raghavan, holding that the Texas Court orders are without jurisdiction in India, and the Supreme Court decision in Kanika Goel v. State of Delhi, holding that only the courts in Mumbai have jurisdiction over the dispute. Accordingly, the habeas corpus petition is not maintainable and custody cannot be transferred to the petitioner. Under the Hindu Minority and Guardianship Act, 1956, the respondent, as the biological mother, is the natural guardian and entitled to physical custody. The learned senior counsel also relied upon Supreme Court decisions in Dhanwanti Joshi, Prateek Gupta v. Shilpi Gupta, and Y. Narasimha Rao v. Y. Venkata Lakshmi, stating that the court’s paramount consideration is the welfare of the child. The child has been settled in India for the last two years; there is no merit in the petition and it should be dismissed., Analysis: We have considered the submissions made on behalf of both parties. Before dealing with the rival submissions on merits, it is necessary to consider the well‑settled principles of law applicable to the facts of the present case. The learned counsel for the petitioner placed on record a compilation of decisions in petitions seeking a writ of habeas corpus dealing with repatriation of minor children. Legal position relevant to the facts: In the case of Nithya Raghavan, the Honorable Supreme Court considered decisions such as Surinder Kaur Sandhu v. Harbax Singh Sandhu, Ms. Elizabeth Dinshaw v. Arvind M. Dinshaw & Another, Dhanwanti Joshi v. Madhav Unde, Shilpa Aggarwal, V. Ravi Chandran, Arathi Bandi v. Bandi Jagadrakshaka Rao & Others, and Surya Vadanan v. State of Tamil Nadu & Others. In all these cases, the minor children held foreign citizenship and the parents were permanent residents of that foreign country, but one spouse removed the child to India, disregarding foreign court orders. Except for Dhanwanti Joshi, the child was repatriated to the jurisdiction from which it was removed. In Nithya Raghavan, the couple married in India, shifted to the United Kingdom, and their daughter was born in Delhi, making her an Indian citizen. After marital discord, the wife and daughter returned to India, and the husband filed custody proceedings in the United Kingdom and a habeas corpus petition in the Delhi High Court, which was allowed. The Supreme Court, relying on Dhanwanti Joshi and the Privy Council case of McKee v. McKee, held that the welfare of the child overrides foreign court orders. The child, born in India, retained Indian citizenship, later acquired British citizenship, and required medical care for a cardiac disorder that could only be provided by the mother. The Court set aside the High Court order and emphasized that summary jurisdiction should be exercised only when the child’s removal is prompt and the overriding consideration is the child’s welfare. In the case of Kanika Goel, although the parties married in India, they later settled in Chicago and remarried; their daughter was born in the United States. The wife and daughter came to India and did not return. The wife obtained a restraining order from the Delhi Family Court preventing the husband from removing the child, while the US Court granted interim sole custody to the husband. A writ petition in the Delhi High Court directed repatriation of the child to the United States, but the Supreme Court set aside that order, directing that the Delhi proceedings be decided promptly before the wife is called before the US Court.
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It was held that, a fortiori, dependent on the outcome of the proceedings before the Family Court at New Delhi, the wife must be legally obliged to participate in the proceedings in the United States Court and must take all measures to defend herself in the said proceedings, and the husband shall bear the expenses for the travel of the wife and the minor child to the United States as may be required., In the case of Lahari Sakhamuri, the parties were married in India but both were residing in the United States. Two children were born from this wedlock in the United States. The couple purchased a house in their joint name and moved to the new house. The husband purchased return tickets for the wife and the minor children, who came to India and were scheduled to return. However, the wife filed a petition seeking custody of the children before the Family Court, Hyderabad and obtained an interim order. The husband filed an application under Order VII Rule 11 of the Code of Civil Procedure seeking a rejection of the case. In the meantime, the husband also filed an application before the United States Court seeking an emergency order for the return of the minor children, and the wife appeared through counsel. The United States Court directed the mother to return the children to the United States., The husband filed an appeal before the High Court assailing the order of rejection of his application under Order VII Rule 11 of the Code of Civil Procedure and simultaneously filed a writ of Habeas Corpus seeking repatriation of the minor children pursuant to the order passed by the United States Court. The High Court held that the Family Court, Hyderabad, had no jurisdiction because the children were not ordinarily residing within its jurisdiction as provided under Section 9 of the Guardians and Wards Act, and rejected the application filed by the wife for custody. At the same time, the Habeas Corpus petition was allowed, and the children were directed to be repatriated to the United States. The wife challenged both orders before the Hon'ble Supreme Court of India. The Supreme Court of India confirmed the decision of the High Court and held that the doctrines of comity of courts, intimate connect, orders passed by foreign courts having jurisdiction in the matter regarding custody of the minor child, citizenship of the parents and the child, etc., cannot override the consideration of the best interest and welfare of the child, and that the direction to return the child to the foreign jurisdiction must not result in any physical, mental, psychological or other harm to the child. Certain directions were passed for the children to return, and the husband was directed to make arrangements for the stay of the wife in the United States, including her travel expenses., The Supreme Court of India considered its earlier decisions in the cases of Nithya Raghavan and Kanika Goel and held as under: 41. The essence of the judgment in Nithya Anand Raghavan case (Nithya Anand Raghavan v. State (NCT of Delhi), (2017) 8 SCC 454 : (2017) 4 SCC (Civ) 104) is that the doctrines of comity of courts, intimate connect, orders passed by foreign courts having jurisdiction in the matter regarding custody of the minor child, citizenship of the parents and the child, etc., cannot override the consideration of the best interest and welfare of the child and that the direction to return the child to the foreign jurisdiction must not result in any physical, mental, psychological or other harm to the child., 43. The expression ‘best interest of the child’, which is always kept to be of paramount consideration, is indeed wide in its connotation and it cannot remain limited to the love and care of the primary caregiver i.e., the mother, in case of an infant or a child who is only a few years old. The definition of ‘best interest of the child’ is envisaged in Section 2(9) of the Juvenile Justice (Care & Protection) Act, 2015, as meaning the basis for any decision taken regarding the child, to ensure fulfilment of his basic rights and needs, identity, social well‑being and physical, emotional and intellectual development., In the case of Yashita Sahu, the parties were Indian citizens and were married in India. The husband was already working in the United States, and the wife accompanied the husband to the United States. A daughter was born to the couple in the United States and acquired United States citizenship. The relationship between the husband and wife became strained, and the wife initiated proceedings in the United States Court. Joint legal custody and shared physical custody of the child were given to the parents. The wife, along with the child, left the United States and came to India; hence the husband filed a motion for an emergency brief before the United States Court and an ex‑parte order was passed granting sole legal and physical custody of the child to the husband and directing the wife to return to the United States along with the child. A warrant was also issued against the wife for violating the order of the United States Court. The husband filed a petition to issue a writ of Habeas Corpus before the Rajasthan High Court for producing the minor child and repatriation to the United States. The High Court directed the wife to return to the United States along with the minor daughter to enable the jurisdictional court in the United States to pass further orders. Aggrieved by the judgment, the wife filed an appeal to the Supreme Court of India. The Supreme Court of India discussed in detail the law laid down by its various decisions and held that a writ of Habeas Corpus is maintainable if the child is in the custody of another parent and that it is now a settled position that the court can invoke its extraordinary writ jurisdiction for the best interest of the child as has been done in Elizabeth Dinshaw, Nithya Anand Raghavan and Lahari Sakhamuri among others., Therefore, the Supreme Court of India held as under: 20. It is well‑settled law by a catena of judgments that while deciding matters of custody of a child, the primary and paramount consideration is the welfare of the child. If welfare of the child so demands then technical objections cannot come in the way. However, while deciding the welfare of the child, it is not the view of one spouse alone which has to be taken into consideration. The courts should decide the issue of custody only on the basis of what is in the best interest of the child., 21. The child is the victim in custody battles. In this fight of egos and increasing acrimonious battles and litigations between two spouses, our experience shows that more often than not, the parents who otherwise love their child present a picture as if the other spouse is a villain and he or she alone is entitled to the custody of the child. The court must therefore be very wary of what is said by each of the spouses., 22. A child, especially a child of tender years, requires the love, affection, company and protection of both parents. This is not only the requirement of the child but is his/her basic human right. Just because the parents are at war with each other does not mean that the child should be denied the care, affection, love or protection of either parent. A child is not an inanimate object which can be tossed from one parent to the other. Every separation, every reunion may have a traumatic and psychosomatic impact on the child. Therefore, it is to be ensured that the court weighs each and every circumstance very carefully before deciding how and in what manner the custody of the child should be shared between both the parents., 28. The child is a citizen of the United States by birth. Her father was already working in the United States when he got married. We are told that the mother had visited the United States once before marriage and when she got married it was done with the knowledge that she may have to settle down there. The child was born in a hospital in the United States and the mother did not come back to India for delivery which indicates that at that time the parents wanted the child to be a citizen of the United States. Since the child is a citizen of the United States by birth and holds a passport of that country, while deciding the issue of custody we have to take this factor into consideration., 35. In view of the above discussion, we are clearly of the view that it is in the best interest of the child to have parental care of both the parents, if not joint then at least separate. We are clearly of the view that if the wife is willing to go back to the United States then all orders with regard to custody, maintenance, etc., must be looked into by the jurisdictional court in the United States. A writ court in India cannot, in proceedings like this, direct that an adult spouse should go to America. We are, therefore, issuing directions in two parts. The first part will apply if the appellant wife is willing to go to the United States on terms and conditions offered by the husband in his affidavit. The second part would apply if she is not willing to go to the United States, how should the husband be granted custody of the child., In the case of Nilanjan Bhattacharya, the parties got married in Kerala. The couple moved to the United States and both started working. Their son was born in the United States and became a United States citizen. The wife travelled to India for a short period with the child and, after reaching India, informed the husband of her plans not to return to the United States and continued to reside in India with the child. The United States Court, on a petition filed by the husband, granted legal and temporary custody of the minor child to the husband. The husband initially filed a Habeas Corpus petition before the Supreme Court of India, but the same was withdrawn with liberty to move to the appropriate forum. The husband filed a Habeas Corpus petition before the High Court of Karnataka, and the Division Bench allowed the Habeas Corpus and allowed the father to take the child to the United States. However, two conditions were imposed that prior to repatriation of the child, a certificate shall be issued from the District Health Officer, Bangalore, that the country is safe from COVID. Similarly, the father should also obtain a certificate from the concerned Medical Authority in the United States certifying that the conditions in the United States where he was residing are congenial for shifting the residence of the minor child. The wife did not challenge the order of the High Court. On the contrary, the father challenged the correctness of the two conditions of obtaining the Medical Certificates. The Supreme Court of India allowed the appeal and set aside the said two conditions. The child was born in the United States and was a citizen of the United States by birth. The husband had taken the responsibility for shared parenting while the child was in the United States. The Court, having been apprised of the fact that the husband was ready and willing to provide financial assistance to enable the wife to travel to New Jersey, directed the husband to make arrangements for her residential accommodation and stay close to the place of residence of the child. Alternatively, if the wife was not desirous of living in the United States, the husband was directed to make arrangements providing access to the wife to meet the child by video conferencing and bear the expenses of the wife for travel to the United States for a period of ten days once in a year for the purpose of meeting the child; and the husband was directed to bring the child to India for a period of ten days on an annual basis when access would be provided to the wife., In the case of Vasudha Sethi and others, the parties were married in the United States, and the child was born in the United States. Thus, the child was a citizen of the United States by birth and was holding a United States passport. The father had a status of permanent resident in the United States and secured a B‑2 Non‑Immigrant visa for the mother. Unfortunately, the child was diagnosed with hydronephrosis, which required surgery, and they were not in a position to secure an appointment with a doctor in the United States for surgery. Therefore, it was agreed between the husband and wife that the child would undergo surgery in India. As the child was a citizen of the United States, consent for international travel with one legal guardian was executed by and between the husband and wife. It was the case of the father that at the time of surgery, he flew down to India, and after the surgery, he returned to the United States for his work. The mother violated the international travel consent by not allowing the minor child to return to the United States and detained the minor in her illegal custody in India. On a petition filed by the father before the court in the United States, an interim order granting primary care, custody, and control of the minor child to the father and directing the mother to return the child to the father was passed. The father then filed petitions seeking a writ of Habeas Corpus in the High Court of Punjab and Haryana, which was allowed and the wife was directed to return to the United States. The wife assailed the judgment in the Supreme Court of India, and the Supreme Court of India upheld the judgment of the High Court and held that even if the child was less than five years old, the child could be repatriated to the United States. The Supreme Court of India considered the cases of both Nithya Anand Raghavan and Kanika Goel and even then allowed the repatriation of a child less than five years old, observing inter alia as under:, 28. Each case has to be decided on its own facts and circumstances. Though no hard and fast rule can be laid down, in the cases of Kanika (supra) and Nithya (supra), this Court has laid down the parameters for exercise of the power to issue a writ of Habeas Corpus under Article 226 of the Constitution of India dealing with cases of minors brought to India from the country of their native. This Court has reiterated that the paramount consideration is the welfare of the minor child and the rights of the parties litigating over the custody issue are irrelevant. After laying down the principles, in the case of Nithya (supra), this Court has clarified that the decision of the Court in each case must depend on the totality of facts and circumstances of the case brought before it. The factual aspects are required to be tested on the touchstone of the principle of welfare of the minor child. In the cases of Lahiri (supra) and Yashita (supra), the Benches of this Court consisting of two Judges have not made a departure from the law laid down in the decisions of larger Benches of this Court in the cases of Nithya (supra) and Kanika (supra). The Benches have applied the law laid down by the larger Bench to the facts of the cases before them. It is not necessary for us to discuss in detail the facts of the aforesaid cases. By its very nature, in a custody case, the facts cannot be similar. What is in the welfare of the child depends on several factors. A custody dispute involves human issues which are always complex and complicated. There can never be a straight‑jacket formula to decide the issue of custody of a minor child as what is in the paramount interest of a minor is always a question of fact. But the parameters for exercise of jurisdiction as laid down in the cases of Nithya (supra) and Kanika (supra) will have to be followed., In the case of Rohith Gowda, the father had been residing in the United States for two decades. The parties were married in India. Soon after the marriage, they shifted to the United States and made it their matrimonial home. They both were given Green Cards (Permanent Resident Cards). The child of the parties was born in the United States, and he was an American citizen with an American passport. The child was studying at a school in Washington. The mother came to India with the child without the consent of the father when the father was already in India to attend to his ailing mother. Upon reaching the United States, he realised that the child was missing from the matrimonial home. The father filed a Habeas Corpus writ petition before the High Court of Karnataka and also filed a custody petition in the Superior Court of Washington and got an ex‑parte order directing the mother to return the child to the United States. The wife participated in the proceedings before the United States Court and moved a motion for vacating the ex‑parte order. Consequently, the ex‑parte order to return the child was vacated. Later, the mother filed a petition challenging the jurisdiction of the United States Court, and the United States Court upheld its jurisdiction over the minor child. The United States Court passed an order directing her to return the child to the United States. The mother also filed a custody petition before the Family Court, Bengaluru, which was dismissed as being not maintainable for want of jurisdiction. In the circumstances, only the United States Courts had jurisdiction to decide the question of custody of the minor child. The High Court of Karnataka dismissed the Habeas Corpus filed on behalf of the husband. However, on an appeal, the Supreme Court of India allowed the Habeas Corpus petition. The Supreme Court of India held that the child is a naturalised American citizen with an American passport and will have better avenues and prospects if he returns to the United States, being a naturalised American citizen. The Supreme Court of India relied upon its earlier decisions in the cases of Nithya Raghavan and V. Ravi Chandran and allowed the writ petition and directed the husband to arrange accommodation for the wife and her parents in the United States., In the case of Rajeswari Chandrasekar Ganesh v. State of Tamil Nadu & Others, the parties were married in India and migrated to the United States. Their daughter was born in India, whereas their son was born in the United States. The United States court passed a consent order for divorce wherein shared parenting was ordered. The father illegally took the children to India from the United States, removing them from the mother’s custody in contravention of the joint custody plan and order of the United States Court. The wife, aggrieved by the abduction of the minor children, filed a petition under Article 32 of the Constitution of India seeking a writ of Habeas Corpus, and the CBI was also made a party. The Supreme Court of India allowed the writ petition, noted the law of Habeas Corpus and held that the Court exercises an inherent jurisdiction in Habeas Corpus petitions distinct from a statutory jurisdiction. The Court held: 110. Thus, what has been explained by this Court as aforesaid is the doctrine of Parental Alienation Syndrome, i.e., the efforts made by one parent to get the child to give up his/her own positive perceptions of the other parent and get him/her to agree with their own viewpoint. It has two psychological destructive effects: (1) It puts the child in the middle of a loyalty contest, which cannot possibly be won by any parent; (2) It makes the child assess the reality, thereby requiring to blame either parent who is supposedly deprived of positive traits. 111. The intent of the court should be to circumvent such ill effects., In the case of Abhinav Gyan, the husband had been living in the United States. The parties got married in India and the wife joined the husband in the United States. The wife secured a permanent job in the United States. The parties resided together in their matrimonial house in the United States and bought a joint house together in the same place. Their son was born in the United States and thus was a citizen of the United States, holding a passport of that country. There was matrimonial discord between the parties and the wife left the matrimonial house along with the minor child and came to India and started residing with her parents. The husband initiated a proceeding for legal separation and for custody of the minor child in the United States court. The wife filed for divorce in India. The wife also appeared before the United States Court. The United States Court designated the father as the child’s primary residential parent and ordered the mother to return the child to the father. Since the mother did not return the child, the father filed a writ petition in the Bombay High Court to repatriate the minor child to the United States. This Court ordered the wife to return the minor child to the jurisdiction of the United States court. This Court held that the paramount factor of the best interests and welfare of the child gives its colour to the jurisdiction of this Court while considering a habeas corpus petition in such facts and circumstances. This Court rejected the argument of non‑maintainability of the writ petition, and as indicated in the decisions of the Supreme Court of India in the case of Nithya Raghavan read with the decision in the case of Rajeswari Ganesh, the High Court held that the husband has moved with alacrity and the petition was to be decided on merits and despite the fact that the minor child had remained in India for about 1½ years the High Court considered the aspect of the welfare of the child and held that the order of the United States Court would be a relevant factor. Thus, this Court allowed the petition., CONCLUSIONS: 35. In our country, matrimonial disputes constitute the most bitterly fought adversarial litigation, and when the issue of custody of children is involved, children suffer the most. In such cases, the role of the Court becomes crucial. The Court is required to exercise its parens patriae jurisdiction and compel the parties to do something that is in the best interest of the child. Hence, in such a peculiar situation, it is the responsibility of the Court to enter into the role of a guardian for the child., 36. Thus, we have considered the submissions made by both parties by keeping in mind the well‑established principles of law as laid down in the aforesaid decisions. It is well established that the summary jurisdiction be exercised if the Court to which the child has been removed is moved promptly and quickly. The overriding consideration must be the interest and welfare of the child. That the doctrines of comity of courts, intimate connect, orders passed by foreign courts having jurisdiction in the matter regarding custody of the minor child, citizenship of the parents and the child, etc., cannot override the consideration of the best interest and the welfare of the child and that the direction to return the child to the foreign jurisdiction must not result in any physical, mental, psychological, or other harm to the child. The expression ‘best interest of the child’, which is always kept to be of paramount consideration, is indeed wide in its connotation, and it cannot remain only the love and care of the primary caregiver i.e., the mother in the case of the child who is only a few years old and the basis for any decision taken regarding the child, is to ensure fulfilment of his basic rights and needs, identity, social well‑being and physical, emotional and intellectual development. However, while deciding the welfare of the child, it is not the view of one spouse alone which has to be taken into consideration. The Courts should decide the issue of custody only on the basis of what is in the best interest of the child., 37. Thus, keeping in mind the aforementioned principles, in the present case, the questions to be decided are as under: (i) whether the refusal on the part of the respondent‑mother to return to the United States with the child, as scheduled, is justified and whether such refusal will amount to illegally detaining the child in India; (ii) whether, in the facts of the case, the petition seeking a writ of habeas corpus is maintainable; and (iii) whether the petitioner‑father is justified in seeking repatriation of the child to the United States., 38. In the present case, from the undisputed facts, it is clear that (i) the parties always had the intention to permanently settle down in the United States for which the respondent, after their marriage, completed her further education in the United States and secured a job; (ii) after undergoing the IVF medical procedure in the United States, the respondent gave birth to their son in the United States; (iii) all the facts and circumstances clearly show that the parties took a conscious decision to make their child a United States citizen; (iv) parents of the parties resided with them in the United States intermittently to help and support them during the days of pre‑delivery and post‑delivery of the child; (v) parties had booked their return tickets to the United States; (vi) the respondent had never made any complaint against the petitioner until this Court passed an order granting video access to the petitioner to meet the child and the United States court passed the order on the petition filed by the petitioner., 39. On perusal of the pleadings and documents on record, we find that the proceedings initiated by the respondent in India appear to be afterthought only with the intention of not allowing the petitioner to take the child back to the United States. There is no satisfactory explanation forthcoming from the respondent for not allowing the petitioner to meet their child on his first birthday. It appears that with an intention to celebrate the first birthday of the child in India, the parties had scheduled their visit. The petitioner made all possible efforts to contact the respondent to meet the child. The undisputed WhatsApp messages exchanged between the parties reveal that the respondent and their child were not available at her parents’ place on the first birthday of the child; the respondent and her brother informed the petitioner that he should not try to contact them and they even concealed their whereabouts. In such circumstances, the petitioner immediately filed a complaint alleging that the respondent had abducted the child. We do not find any justification for such conduct on the part of the respondent in not allowing the petitioner to meet their child on his first birthday. There is absolutely no explanation coming forth from the respondent for concealing the whereabouts of the child from the petitioner. It appears from the order dated 20 December 2021 passed in the present petition that even on the second birthday of the child in the year 2021, when a request was made on behalf of the petitioner to meet on his birthday, i.e., on 25 December 2021, a statement was made on behalf of the respondent that she and were travelling from 24 December 2021 to 2 January 2022 and that the petitioner can meet on 22 and 23 December 2021., 40. So far as the objection to the maintainability of this petition is concerned, the law in this regard is no more res‑integra. It is a well‑settled principle of law that the Court can invoke its extraordinary writ jurisdiction for the best interest of the child. The objection raised on behalf of the respondent on the maintainability of this petition is based on the submission that there is no pre‑existing order in favour of the petitioner for custody and that the petition is filed in haste by construing one day’s absence of respondent as abduction by the respondent. We do not find any merit in this submission. It is a well‑established principle of law as laid down in the catena of judgments discussed above that a writ for habeas corpus cannot be used only for enforcement of the directions given by a foreign court, and that the same is one of the factors to be considered. Therefore, there being no pre‑existing order of the United States Court in the present case cannot be a ground to contend that a writ for habeas corpus is not maintainable. Even otherwise during the pendency of this petition, the United States Court has ordered the respondent to bring back to the United States., 41. The aforesaid undisputed facts would show that though the parties visited India just before the first birthday of the child with a scheduled plan to return, the respondent not only restrained the petitioner from meeting on his first birthday but also concealed his whereabouts. A perusal of the WhatsApp messages between the parties shows that the respondent and her brother informed the petitioner not to try to contact them. In the admitted facts of the present case, we find that the petitioner has acted with alacrity and has taken quick and prompt action to find the whereabouts of his son. The petitioner immediately filed a complaint through email to the United States Embassy complaining about the inter‑parental abduction of the child and thereafter filed the present petition. The quick and prompt actions taken by the petitioner for seeking the whereabouts of his son cannot be termed as any hasty action of alleging abduction. Thus, it cannot be said that this petition seeking a writ of habeas corpus is not maintainable as sought to be contended on behalf of the respondent.
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Dated the 6th day of October 2023, this Revision Petition has been filed under Section 19(4) of the Family Courts Act, 1984 and the revision petitioner is the respondent in Miscellaneous Case No. 106/2019 on the files of the Family Court of Kerala, Thalassery. The respondents herein are the original petitioners in the above Miscellaneous Case., The learned counsel appearing for the revision petitioner, Dr. Varghese Mundackal, and the learned counsel appearing for the respondents, Advocate T. Asaf Ali, were heard., I shall refer to the parties in this Revision Petition as to their status before the Family Court of Kerala as petitioners and respondent., The petitioners, who are the wife and child of the respondent, approached the Family Court of Kerala and claimed maintenance of Rs.15,000 per month for the first petitioner and Rs.12,000 per month for the second petitioner. According to the petitioners, the respondent married the first petitioner and they were residing together as husband and wife at the house of the first petitioner. The second petitioner was born during this period. Thereafter, the respondent took the petitioner and the minor to Qatar, where he was doing business. However, the respondent failed to pay maintenance to the petitioners, though he had an income of Rs.2 lakh per month from his business in Qatar. The petitioners stated that they had no means of maintenance and, therefore, the respondent was liable to pay allowance of maintenance for them., The respondent filed an objection and resisted the claim for maintenance. It is admitted that the respondent was abroad from 2003 onwards and had given all his hard‑earned money to the first petitioner. The respondent returned from Qatar on 04‑06‑2018. The petitioner also returned from Qatar around 20‑06‑2018. Later, the petitioner went to Qatar several times without the permission of the respondent. Subsequently, the respondent lost his job abroad and had no contact with the petitioner due to her alleged illegal dealings. In March 2019, the petitioner went to Qatar along with the minor child. The first petitioner holds an MBA degree. It was alleged that the respondent incurred loss in the business and thereafter voluntarily left his company and entered into a relationship with another person. The first petitioner is now in a relationship with another person, which led to marital collapse., The Family Court of Kerala considered Original Petition No. 292/2019 and Miscellaneous Case No. 106/2019 together. The first petitioner was examined as Petitioner Witness 1 and Exhibits A1 to A7 were marked on the side of the petitioner. The respondent was examined as Respondent Witness 1 and Exhibits B1 to B7 were marked on his side., Upon appreciation of the evidence, the Family Court of Kerala granted maintenance of Rs.10,000 each to the petitioners effective from 02‑04‑2019. The said order is under challenge in this Revision Petition., At the time of argument, the learned counsel for the respondent submitted that the first petitioner has been living in adultery and, therefore, the respondent is not bound to pay maintenance to the first petitioner. When asked to justify the evidence supporting the allegation of adultery, the counsel submitted that Criminal Miscellaneous Application Number 2/2023 had been filed along with documents as Annexures A1 to A3., It is not in dispute that convincing evidence is required to prove the adulterous life of the first petitioner. In fact, no convincing evidence was adduced before the Family Court of Kerala, other than the oral version of the respondent, who was examined as Respondent Witness 1. The first petitioner claimed that she lived with Respondent Witness 1 until December 2018, a fact admitted by Respondent Witness 1, and that she left the respondent’s company thereafter because the respondent treated her cruelly by alleging an extramarital relationship. In those circumstances, the Family Court of Kerala found that the first petitioner was justified in living separately and that the petitioners had no means of sustenance. Accordingly, a maintenance allowance of Rs.10,000 each was granted., Although the respondent failed to adduce evidence to prove the extramarital relationship, Annexures A1 to A3 and Criminal Miscellaneous Petition Number 2/2023 were produced before this Court to prove the alleged extramarital relationship and to show that the first petitioner became pregnant during the period of separate living. Annexure A1 is the order in Original Petition No. 368/2019 dated 19‑03‑2022. Annexure A1 shows that Original Petition No. 368/2019 was a petition filed by the first petitioner for dissolving the marriage under the Dissolution of Muslim Marriages Act, 1939. When the petition was considered by the Family Court of Kerala, the petitioner submitted that the marriage was dissolved by pronouncement of Khula on 27‑05‑2021 and accordingly the Family Court dismissed the petition as the first petitioner was not inclined to continue with the same. The order reserved the liberty of the respondent to challenge the Khula in an appropriate forum., The learned counsel for the respondent argued that even though the respondent challenged the Khula before the Family Court of Kerala, the challenge was dismissed as withdrawn. He also pointed out that two separate Division Benches of this Court considered the case between the parties in Original Petition (Family Court) No. 641/2022 and Original Petition (Family Court) No. 322/2023 filed by the respondent, and both petitions were dismissed. Copies of the orders were placed by the learned counsel for the respondent., In this matter, the petitioner effected Khula with effect from 27‑05‑2021. In Islamic jurisprudence, Khula is generally recognised as a valid form of divorce if the wife has a legitimate reason for seeking divorce. The issue is whether a wife who affirms that the marriage was dissolved by Khula can claim maintenance after effecting Khula., Paragraph 319 of Mulla's Principles of Mahomedan Law provides that a divorce by Khula is a divorce with the consent, and at the instance of the wife, in which she gives or agrees to give consideration to the husband for her release from the marriage tie. In such a case, the terms of the bargain are matters of arrangement between the husband and wife, and the wife may, as consideration, release her dhan‑mahr (dower) and other rights, or make any other agreement for the benefit of the husband. Failure on the part of the wife to pay the consideration for the divorce does not invalidate the divorce, though the husband may sue the wife for it. A Khula divorce is effected by an offer from the wife to compensate the husband if he releases her from her marital rights, and acceptance by the husband of the offer. Once the offer is accepted, it operates as a single irrevocable divorce (talak‑i‑bain) and its operation is not postponed until execution of the Khulanama (deed of Khula)., Paragraph 320 deals with the effect of Khula and Mubara‘at divorce and provides that unless otherwise provided by the contract, a divorce effected by Khula or Mubara‘at operates as a release by the wife of her dower, but it does not affect the liability of the husband to maintain her during her iddat, or to maintain his children by her., Reverting to the legal position, in the decision of the Apex Court in (1985) 2 SCC 556 : AIR 1985 SC 945, Mohd. Ahmed Khan v. Shah Bano Begum & Ors., the Apex Court decided in favour of a divorced Muslim woman and held that under Section 125 of the Code of Criminal Procedure, a divorced Muslim woman is entitled to maintenance from her former husband. Subsequently, the Muslim Women (Protection of Rights on Divorce) Act, 1986 was enacted to dilute the judgment of the Supreme Court and restricted the right of divorced Muslim women to receive alimony from their former husband beyond the period of iddat. In a later judgment of the Apex Court reported in (2001) 7 SCC 740, Danial Latifi & Anr. v. Union of India, the Apex Court held that even under the Act, the provisions of Section 125 of the Code of Criminal Procedure would still be attracted and the Magistrate has the power to make appropriate provision for maintenance, so that what could earlier be granted by a Magistrate under Section 125 would now be granted under the Act itself. The Act therefore cannot be held to be unconstitutional., In the Shah Bano case the Supreme Court clearly explained the rationale behind Section 125 of the Code of Criminal Procedure to provide maintenance to a divorced Muslim wife in order to avoid vagrancy or destitution of a Muslim woman., Finally, the Court concluded as follows: (1) A Muslim husband is liable to make reasonable and fair provision for the future of the divorced wife, which includes her maintenance. Such provision extending beyond the iddat period must be made by the husband within the iddat period in terms of Section 3(1)(a) of the Act. (2) Liability of a Muslim husband to his divorced wife under Section 3(1)(a) of the Act to pay maintenance is not confined to the iddat period. (3) A divorced Muslim woman who has not remarried and is unable to maintain herself after the iddat period can proceed under Section 4 of the Act against her relatives who are liable to maintain her in proportion to the properties they inherit on her death, according to Muslim law, including her children and parents. If any relative is unable to pay maintenance, the Magistrate may direct the State Wakf Board established under the Act to pay such maintenance. (4) The provisions of the Act do not offend Articles 14, 15 and 21 of the Constitution of India., Again, in the decision reported in (2015) 5 SCC 705, Shamima Farooqui v. Shahid Khan, the Supreme Court held in paragraph 9 that the applicability of Section 125 of the Code of Criminal Procedure to a divorced Muslim woman is affirmed. The Court, referring to the Constitution Bench decisions in Danial Latifi v. Union of India and Khatoon Nisa v. State of U.P., observed that even after an application is filed under the Act, the Magistrate has the power to grant maintenance in favour of a divorced Muslim woman and the parameters are the same as stipulated in Section 125 of the Code of Criminal Procedure. The Court noted that the order did not warrant any interference., More recently, in Shabana Bano v. Imran Khan, a two Judge Bench, relying on Danial Latifi, ruled that the appellant’s petition under Section 125 of the Code of Criminal Procedure would be maintainable before the Family Court of Kerala as long as the appellant does not remarry. The amount of maintenance awarded under Section 125 cannot be restricted to the iddat period only. Although the decision interpreted Section 7 of the Family Courts Act, 1984, the principle is applicable as it is consonant with the principle stated by the Constitution Bench in Khatoon Nisa. Consequently, Section 125 of the Code of Criminal Procedure is rightly applicable, and a Muslim divorced wife can claim maintenance under Section 125 until she remarries, unless a reasonable and fair provision extending beyond the iddat period is made by the husband within the iddat period or thereafter in terms of Section 3(1)(a) of the Muslim Women (Protection of Rights on Divorce) Act, 1986., It is true that Section 125 provides maintenance to wives, children and parents who are unable to maintain themselves. The term ‘wife’ includes a divorced wife, and the term ‘children’ includes legitimate or illegitimate children. The section also provides for maintenance to parents who are unable to maintain themselves. However, as per Section 125(4) of the Code of Criminal Procedure, no wife shall be entitled to receive maintenance or interim maintenance from her husband if she is living in adultery, or if, without sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent. Thus, when the wife refuses to live with her husband, she cannot claim maintenance. When the wife effects divorce by Khula, it is akin to refusal to live with the husband as provided under Section 125(4). Consequently, a wife who effected divorce by Khula at her volition and thereby refuses to live with her husband voluntarily is not entitled to maintenance from the date of Khula in view of the restriction in Section 125(4). For this reason, the learned counsel for the petitioners submitted that the maintenance claim of the first petitioner should be limited till 27‑05‑2021 by modifying the order., Coming back to the documents placed before this Court by the learned counsel for the respondent, although Annexure A1 shows the pronouncement of Khula by the first petitioner, nothing therein establishes that the first petitioner was leading an adulterous life. Apart from Annexure A1, Annexure A2 is a medical document in which Dr. Supriya, Sonologist, reported a single intra‑uterine pregnancy of about 5‑6 weeks gestation as on 24‑08‑2018. The respondent used Annexure A2 to contend that the first petitioner had been living in adultery and became pregnant in that relationship. However, Khula was pronounced only effective from 27‑05‑2021 and the litigation between the parties started in 2019. Up to 31‑12‑2018, both parties admitted that they were living together as husband and wife. Therefore, the pregnancy noted in Annexure A2 dated 24‑08‑2018 falls within the period covered by Section 112 of the Evidence Act, which provides that a child born during the continuance of a valid marriage, or within 280 days after its dissolution while the mother remains unmarried, is conclusive proof of legitimacy unless it can be shown that the parties had no access to each other. Consequently, the pregnancy does not prove adultery. Annexures A2 and A3 are tuition fee receipts paid to Mount Guide International School on 07‑03‑2023., In the present case, it must be held that at the time evidence was recorded by the Family Court of Kerala, no evidence was adduced to prove the adulterous life of the first petitioner as alleged by the respondent. Annexure A2 was presented by the respondent as evidence of alleged adultery, but it does not suggest such a conclusion. Regarding the evidence given by Respondent Witness 1, during cross‑examination he admitted that he was drawing a salary of Rs.1,50,000 as Accounts Manager in Rotala Runway Car. He also admitted that he independently ran a concern named Store Mount and had an income of Rs.2 lakh from it. He stated that he did not return to the Gulf after January 2019 and that his passport expired on 21‑07‑2019, although he later obtained a new passport which is in his possession and that a valid visa existed in the old passport. He also admitted that the second respondent is studying at Mount Guide International School with a monthly fee of Rs.7,000‑8,000. He conceded that there were accusations that the first petitioner had maintained a relationship with other persons., Thus, Respondent Witness 1 admitted the facts put forward by the petitioners regarding his employment and income, although he contends that he is not presently employed. No employment or income has been established for the first petitioner, and Annexures A3 and A4 show that the second petitioner has been studying at Birla Public School., As to the entitlement of the petitioners to maintenance, it is established by the evidence of Petitioner Witness 1 and supported by the evidence of Respondent Witness 1. Nothing substantiates that the first petitioner has any permanent employment or income to sustain herself. Conversely, Respondent Witness 1 admitted his income as stated above. Considering all these factors, the Family Court of Kerala granted maintenance of Rs.10,000 each to the petitioners., The finding of the Family Court of Kerala that the petitioners are entitled to maintenance is justified by the available evidence. Regarding the quantum, I am inclined to reduce the maintenance for the first petitioner to Rs.7,000 per month from Rs.10,000, while maintaining the maintenance for the second petitioner at Rs.10,000 per month. Accordingly, this Revision Petition is allowed in part and the impugned order is modified. The respondent is directed to pay Rs.7,000 (Rupees seven thousand only) to the first petitioner from 24‑07‑2019 to 27‑05‑2021 and to pay maintenance of Rs.10,000 (Rupees ten thousand only) per month to the second petitioner from 02‑04‑2019 onwards.
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Criminal Appeal No. 1170 of 2000, Criminal Miscellaneous Application No. 425 of 2001 and Criminal Miscellaneous Petition No. 5525 of 2001 were reserved on 31 October 2023 and pronounced on 20 November 2023. Coram: the learned judges of the Madras High Court., The parties are A. M. Paramasivan (deceased) and P. Nallammal, appellants/accused No.1 and No.2. Leave was granted to the second petitioner to continue the appeal as per order in Criminal Miscellaneous Petition No. 1861 of 2020 in Criminal Appeal No. 1170 of 2000 dated 18 February 2020, versus the State by the Inspector of Police, Vigilance and Anti‑Corruption Police, Dindigul. The prayer is a Criminal Appeal filed under Section 374(2) of the Code of Criminal Procedure, seeking to set aside the judgment dated 15 November 2000 made in Special Criminal Case No. 11 of 1997 before the Learned Third Special Judge/XIII Additional Judge, Chennai. For the second appellant: Mr. M. Velmurugan. For the respondent: Mr. Babu Muthu Meeran, Additional Public Prosecutor., The parties are: Thiru A. M. Paramasivan, former Minister for Labour Welfare, Tamil Nadu; Tmt. P. Nallammal, wife of Paramasivan; minor children P. Rajakumar Pandian, P. Selvakumar Pandian and Selvi Suriyakala (also known as Sudarsena), daughter of A. M. Paramasivan (natural guardian for minors). All reside at Anna Nagar, Chennai. A Civil Miscellaneous Application was filed under Section 11 of the Criminal Law (Amendment) Ordinance, 1944, against the order dated 03 January 2001 made in Criminal Original Petition No. 2 of 1997 before the Principal Sessions Judge, Madurai., A. M. Paramasivan was elected Member of the Tamil Nadu Legislative Assembly from 16 June 1991 to 9 May 1996 and served as Minister for Labour Welfare from 17 May 1993 to 9 May 1996, thereby qualifying as a public servant. He and his wife acquired properties disproportionate to known pecuniary resources, amounting to Rs. 38,72,545 during the check period 16 June 1991 to 9 May 1996. He was tried under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988. The properties were in his name, his wife's name and in the names of his minor children, with his wife acting as guardian; consequently his wife was tried for aiding him., The charge as framed reads: A. M. Paramasivan and P. Nallammal, wife of A. M. Paramasivan, were charged that during the period of his legislative and ministerial tenure they possessed properties and pecuniary resources disproportionate to known sources of income to the extent of Rs. 38,72,545, constituting an offence punishable under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988. Additionally, the wife was alleged to have abetted the offence by permitting acquisition of properties in her name and in the names of minor children, constituting an offence punishable under Section 109 of the Indian Penal Code read with Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988., The prosecution examined 62 prosecution witnesses (P.W.1 to P.W.62), marked 160 exhibits (Exhibit P.1 to Exhibit P.160) and 31 material objects (M.O.1 to M.O.31). The defence presented 30 defence witnesses (D.W.1 to D.W.30) and 15 defence exhibits (Exhibit D.1 to Exhibit D.15)., The Trial Court found both accused guilty and sentenced them by judgment dated 15 November 2000 as follows: A‑1 convicted under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, sentenced to two years rigorous imprisonment and a fine of Rs. 1,000; default of fine resulting in two months simple imprisonment. A‑2 convicted under Section 109 of the Indian Penal Code read with Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, sentenced to one year rigorous imprisonment and a fine of Rs. 5,000; default of fine resulting in one month simple imprisonment., The Trial Court determined the value of assets acquired by A‑1 disproportionate to known income as Rs. 35,25,136 for the purpose of action under Section 12 of the Criminal Law (Amendment) Ordinance, 1944. The appeal was filed by A‑1 and A‑2 in Criminal Appeal No. 1170 of 2000. The Court allowed two additional documents as evidence in Criminal Miscellaneous Petition No. 406 of 2007, marked as Exhibit D.16 and Exhibit D.17. After A‑1’s death on 23 May 2015, A‑2 filed an application in Criminal Miscellaneous Petition No. 1861 of 2020 to continue the appeal, which was allowed on 18 February 2020., According to the prosecution’s final report, at the beginning of the check period (16 June 1991) A‑1 possessed about five acres of agricultural land, an ancestral house at Nalliyendalpatty Village, Rs. 1,000 cash, and 100 sovereigns of gold jewels given as Sridhana during his marriage in 1983. At the end of the check period (9 May 1996) the value of properties in possession was assessed at Rs. 39,78,986, including immovable properties purchased in the names of minor children and his wife. The second accused, having no independent income, aided A‑1 in acquiring wealth in her name and as natural guardian. During the period, known source income was Rs. 7,09,330; expenses Rs. 6,03,889; net saving Rs. 1,05,441, leading to disproportionate assets of Rs. 38,72,545 (546% of known income)., The Trial Court excluded Rs. 43,000 for machines worth Rs. 43,800 shown in Statement‑II, reduced the value of a second‑hand Ambassador car from Rs. 1,30,000 to Rs. 1,00,000, and assessed the diesel car purchased under hire‑purchase at Rs. 2,33,229 based on repayment evidence. Jewels worth Rs. 1,48,000 alleged to be purchased by A‑2 were excluded due to hostile prosecution witnesses and lack of documents. Ultimately, the Court accepted the prosecution’s valuation of the remaining assets, arriving at a total asset value of Rs. 37,71,590 at the end of the check period., The Court, giving credit for omitted agricultural income, assessed total income as Rs. 7,96,738 instead of Rs. 7,09,330. It accepted the defence claim of repayment of mortgage loans of Rs. 42,015, fixing expenses at Rs. 5,51,284. After deducting cash in hand of Rs. 1,000 at the beginning, net saving was Rs. 2,45,454, confirming assets of Rs. 37,71,590 and wealth accumulation of 442% disproportionate to known income. Consequently, A‑1 was found guilty under Section 13(1)(e) of the Prevention of Corruption Act and A‑2 guilty under Section 109 of the Indian Penal Code read with Section 13(2) of the same Act., The appellants contend that the prosecution acted malafide and perverse. A‑1 had income from agricultural land, lease holdings and a pension for being an MLA during 1977‑1980. A‑2 had independent income from agricultural land and money‑lending. Their income was disclosed in Income Tax Returns (Exhibit D‑2 and D‑3) seized during search but not relied upon by the prosecution. The Trial Court failed to consider these returns despite being filed before the case registration., The appellants further state that at the beginning of the check period A‑1 had Rs. 3,59,954 and A‑2 had Rs. 2,43,000 cash, contrary to the prosecution’s claim of Rs. 1,000 cash. They allege that the house value was highly inflated and that gifts given during house‑warming and ear‑boring ceremonies were not taken into account., The Income Tax Returns (Exhibit D‑2 and D‑3) were appealed before the Commissioner of Income Tax and the Income Tax Appellate Tribunal, with orders dated 5 March 2003 and 8 November 2005 respectively, after the criminal trial. The High Court allowed these as defence exhibits (Exhibit D.16 and D.17). The appellants argue that these documents are necessary to show that the prosecution ignored various sources of income., The Additional Public Prosecutor submitted that A‑1 was MLA during 1977‑1980 and 1991‑1996, served as Minister of Labour and Welfare 1993‑1996. A preliminary enquiry led to an FIR on 20 August 1996. Investigation by the Superintendent of Police, DV&AC, Chennai and the Inspector of Police, DV&AC, Dindigul uncovered incriminating documents. Draft statements were sent to A‑1; he sought an extension but gave no explanation for holding the properties., The defence documents – Income Tax Return statements (Exhibit D‑1, D‑2, D‑3) showing cash balances of Rs. 3,59,954 and Rs. 2,43,000 – were not produced during the investigation. The Supreme Court in State of Karnataka v. Selvi (2017) held that income tax returns are not automatically binding on criminal courts. Hence, the additional documents have no significant relevance to interfere with the Trial Court’s judgment., The Trial Court disbelieved oral evidence of defence witnesses regarding gifts and land acquisitions due to lack of documentary proof. Claims of additional land purchases and leases were not substantiated., The Additional Public Prosecutor contended that the Trial Court properly appreciated evidence regarding properties, income from legislative salary, perquisites, and payments from a sugar mill, and therefore the judgment should be confirmed., The learned counsel for the appellant and the Additional Public Prosecutor for the respondent were heard. Records were perused., The appellants’ main contention is that assets at the beginning of the check period were not properly considered. Statement‑I lists assets at the start; agricultural income was omitted. Proper inclusion would defeat the accusation of disproportionate wealth., The appellants rely on Exhibits D‑1, D‑2, D‑3, D‑16 and D‑17 to show agricultural income and money‑lending income of a Hindu Undivided Family, which were not taken into account. They claim cash of about Rs. 6 lakhs at the beginning of the period was ignored., The Supreme Court precedent in Selvi J. Jayalalitha held that the High Court’s acceptance of income tax returns and enhancement of agricultural income to Rs. 52,50,000 was not binding on a criminal court; income tax returns must be independently evaluated., The Court notes that the question is whether the public servant possessed assets disproportionate to known income., The additional documents D‑16 and D‑17 relate to Income Tax Department decisions on whether agricultural income for the years 1992‑93, 1993‑94 and 1996‑97 was inflated. The Assessing Officer declared the declared income inflated; the Commissioner set aside the assessment; the Income Tax Appellate Tribunal upheld the Commissioner. These orders discuss tax liability, not the source of income., Except for the five acres of land at the start, the appellants have not produced acceptable evidence of other lands under direct cultivation. Income disclosed in tax returns reflects assessable income, not proof of lawful acquisition., Exhibits D‑1 to D‑3 are self‑serving documents surfaced after the search; they have no evidentiary value as the amounts were not found in the house or bank accounts., The Court finds that Statement‑I regarding assets at the beginning of the check period does not suffer any omission or error., Statement‑II, relied upon by the prosecution, details assets at the end of the check period (9 May 1996). The value of assets prior to the check period was not considered. The appellants admit acquisition but contest valuation, claiming many items were gifts., Extract of Statement‑II (selected items): 5 acres wet land at Nellianthalpatty (nil value); ancestral house (nil value); 100 gold sovereigns given as gifts (value not known); cash on hand Rs. 5,000; 0.45 acres wet land purchased in 1992 for Rs. 18,905; 0.09 acres dry land purchased for Rs. 5,040; 1.45 acres wet land purchased for Rs. 72,840; ready‑built house in K.K. Nagar and 0.01 acre land purchased for Rs. 1,59,550; 2.48 acres wet land purchased for Rs. 90,280; 2.43 acres wet land purchased (value continues).
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Rs.14,800/- and Rs.1,37,960/- for 1.29 acres of wet land in Survey No. 207/2 & 3 at Kodikulam purchased in 1994 in the name of the late Selvakumar Pandian by Sale Deed Document No. 1902/94 dated 23-09-1994 of the Sub-Registrar Office, Thamaraipatty (Rs.70,950/- + Stamp Duty Rs.8,520/- = Rs.79,470/-). Also, Rs.2,76,141/- + Stamp Duty Rs.2,715/- = Rs.2,78,856/- for a house site measuring 3045 sq.ft. at 18‑B HIG Colony, Anna Nagar, Madurai purchased in 1992 in the name of A.M. Paramasivam (Sale Deed Document No. 2693/95 dated 02-11-1995). Additional wet land acquisitions include: 0.51 acres in Survey No. 264/6 at Kodikulam purchased in 1996 by A.M. Paramasivam (Rs.23,000/- + Stamp Duty Rs.2,760/- = Rs.25,760/-); 0.27 acres in Survey No. 240/5 at Kodikulam purchased in 1996 by Selvi Suriyakala (minor daughter of A.M. Paramasivam) (Rs.2,32,210/- + Stamp Duty Rs.28,000/- = Rs.2,60,210/-); another 0.51 acres in Survey No. 264/6 purchased in 1996 by A.M. Paramasivam (Rs.23,000/- + Stamp Duty Rs.2,760/- = Rs.25,760/-); and 0.61 acres in Survey No. 267/1B purchased in 1996 by Selvan Rajkumar Pandian (Rs.87,620/- + Stamp Duty Rs.10,680/- = Rs.98,300/-)., Cost of the house constructed at Plot No. 18‑B HIG Colony, Anna Nagar, Madurai by A.M. Paramasivam during 1993‑94 and 1994 is recorded. A new Premier 137D diesel car (TN‑02‑F‑2345) was purchased in the name of Mrs. Nallammal in 1994 for Rs.2,18,825/-. A second‑hand Ambassador car (TCM 790) was also purchased in the name of Mrs. Nallammal in 1994 for Rs.1,30,000/-. An ONIDA 20‑inch colour TV, a 250‑litre BPL refrigerator, two general air‑conditioner machines, a sofa set, a 2000‑watt Hero Honda generator, a dish antenna, an office table with six chairs, a dining table with seven chairs, and teak wood single and double cots (two each) were also acquired by A.M. Paramasivam between 1995 and 1996, with the respective values as noted in the prosecution schedule., The prosecution also listed 10 sovereigns of gold (old) jewels purchased by Mrs. Nallammal in 1991 for Rs.28,000, 25 sovereigns purchased in 1992 for Rs.75,000, and 15 sovereigns purchased in 1993 for Rs.45,000. Share certificates of National Co‑operative Sugar Mills, Alanganallur, held by A.M. Paramasivam and Mrs. Nallammal for the years 1992, 1995 and 1996 were valued at Rs.7,400. Cash balances as on 09‑05‑1996 were Rs.8,910 in the Savings Bank account No. 3043‑A of A.M. Paramasivam (Madurai District Central Co‑operative Bank Ltd.), Rs.10,055 in Savings Bank account No. 3042 of Mrs. Nallammal (same bank), Rs.4,362 in Indian Bank account No. 95 (M.L.A. Hostel Complex, Chennai) of A.M. Paramasivam, and Rs.24,963 in I.O.B. Secretariat Branch account No. 6956 of A.M. Paramasivam. The total value of assets recorded by the prosecution amounted to Rs.39,78,986., While discussing Statement‑I (assets at the beginning of the check period), it was affirmed that, except for agricultural income from about five acres of land, the first accused (A‑1) had no other source of income. The second accused (A‑2) had no independent source of income. From 1983 (the year of marriage) until 1992, there was no acquisition of immovable property in the names of A‑1 or A‑2. After A‑1 became a Member of Legislative Assembly in 1991, acquisitions in the names of A‑1, A‑2, or their minor children began., The property listed as Serial No.6 was purchased by A‑2 on 14‑09‑1992 for Rs.4,500 plus Rs.540 stamp duty. Three months later, Serial No.5 was purchased on 25‑11‑1992 for Rs.16,875 plus Rs.2,030 stamp duty. Serial No.7 was purchased on 15‑04‑1993 in the name of the minor son T.R. Selvakumar Pandian for Rs.64,980 plus Rs.7,860 stamp duty. On 17‑05‑1993, A‑1 became the Minister for Labour Welfare, Government of Tamil Nadu, and within four months Serial No.8, a ready‑built house at K.K. Nagar, Madurai with one cent of land in Kerala (a nominal sale to avoid higher stamp duty in Tamil Nadu), was registered in Kerala on 22‑09‑1993 in the name of A‑2 for Rs.1,50,500 plus Rs.9,050 stamp duty. Subsequent acquisitions are recorded in Serial Nos.9 to 16., In the HIG Colony, Anna Nagar, a plot of the Tamil Nadu Housing Board was purchased for Rs.2,78,856/-. A‑1 constructed a house on this plot, which the prosecution valued at Rs.20,00,000/-. The defence relied on the valuation report of Defence Witness 30 (Rajasekaran), a freelance valuer for the Central Government Department, which valued the house at Rs.9,97,270/-. The prosecution’s Prosecution Witness 59 (Muthukumarasamy) valued the house at a higher amount, leading to a dispute over the built‑up area and valuation methodology., The trial court, in paragraphs 83 to 85, compared the two valuation reports and noted that Defence Witness 30’s report was based on the approved building plan (Exhibit P.44) and was prepared for income‑tax purposes, without valuing the lawn or front elevation. The defence argued that the prosecution’s valuation included an unjustified architect charge of Rs.1 lakh, whereas only Rs.25,000 was actually spent on plan approval, drawings, supervision, and watchman fees. The defence also claimed that scaffold, electrician, and carpenter charges were limited to labour costs, but no purchase bills were produced to substantiate these oral statements., The prosecution proved that the building deviated from the approved plan, and Prosecution Witness 59 valued the building according to prevailing Public Works Department rates and guidelines, providing a detailed explanation in Exhibit P.143. Defence Witness 30’s report was considered vague and not based on a full specification of the structure. The court held that, apart from the architect fee dispute, the valuation in Exhibit P.144 should be accepted., Regarding the two cars listed as Serial Nos.18 and 19, the trial court re‑fixed their values and found no further issue. Serial Nos.20 to 28 comprised household articles such as a colour TV (Serial No.20, Rs.20,390), a BPL fridge (Serial No.21, Rs.21,350), three sofa sets (Serial No.23, Rs.7,000), a Honda generator (Serial No.24, Rs.21,200), a dish antenna (Serial No.25, Rs.12,000), an office table with six chairs (Serial No.26, Rs.11,800), a dining table with seven chairs (Serial No.27, Rs.11,000), and teak wood single and double cots (Serial No.28, Rs.20,000). The defence claimed these were gifts from relatives during a house‑warming ceremony, but no documentary proof was produced. The trial court deleted the Rs.43,800 value for the two air‑conditioner machines (Serial No.22) as this cost was already included in the construction cost of the building., Statement‑III dealt with the income of the public servant during the check period. The known sources of income were the salary of A‑1 and agricultural income from the five acres of land. All other properties were acquired during the check period from unknown sources. The court referred to the Supreme Court judgments in Kedarai Lal v. State of Madhya Pradesh (2015 SCC 505) and N. Ramakrishnaiah v. State of A.P. (2008 SCC 83; 2010 SCC (Cri) 454) to explain the expression ‘known sources of income’ under Section 13(1)(e) of the Prevention of Corruption Act, 1988., The court explained that ‘known sources of income’ have two elements: the income must be received from a lawful source, and the receipt must be intimated to the authorities in accordance with the applicable rules. Rule 14 of the service rules permits a government servant to accept gifts up to a certain limit if reported within one month; gifts exceeding Rs.2,000 require government sanction and must be paid by account‑payee cheque. Rule 17 deals with temporary loans, and Rule 19 requires intimating details of inherited or acquired property. The court held that all amounts received by the appellant were proved by witness testimony, supported by contemporaneous documents and income‑tax returns, and therefore were not bogus., The prosecution proved agricultural income from the five acres, establishing the extent of land, nature of crop, yield, and net income after expenses. The trial court re‑fixed this income at Rs.7,96,738/-. The defence’s claim of income from leased land and repayment of loans advanced prior to the check period was rejected due to lack of documentary evidence., The defence argued that A‑2 had an independent source of income, relying on the Supreme Court judgment in DSP Chennai v. K. Inbasagaran (2006 SCC 420). In that case, the wife of a public servant, who was not an accused, ran three businesses that were loss‑making, yet the court examined whether unaccounted money recovered from the premises could be attributed solely to the husband., The present case differs because A‑2 is a co‑accused. She had no independent source of income until after her marriage in 1983, and no property yielding income was acquired by her until 1992. Consequently, the dictum from K. Inbasagaran does not apply. The court applied the principle from P. Nallammal v. State (1999 SCC 559), holding that A‑2, by aiding her husband in acquiring properties in her name and in the names of minor children, is guilty of abetment under Section 109 of the Indian Penal Code., The court reiterated that in cases of disproportionate assets, the initial burden lies on the prosecution to prove that the assets are disproportionate to the accused’s known sources of income. This principle was affirmed in M. Krishna Reddy v. State (1992 SCC 45), which outlined the four ingredients that must be established: (1) the accused is a public servant; (2) the nature and extent of pecuniary resources; (3) the known sources of income; and (4) that the resources are disproportionate to those sources. Once these are proved, the burden shifts to the accused to account for the assets., After meticulous examination, the court found that even if a concession of Rs.2 lakhs is granted for architect fees and household articles, the disproportionality would be reduced only marginally. The assets acquired during the check period would still be valued at approximately Rs.35,70,590/-, leaving a disproportionate amount of Rs.33,25,136/-. The percentage of disproportionality would remain around 417 %, well above the threshold for conviction under Section 13(1)(e) of the Prevention of Corruption Act, read with Section 109 of the Indian Penal Code., Therefore, the court confirmed the conviction of the first accused, a public servant, for acquiring wealth beyond his known sources of income, and upheld the conviction of the second accused for abetment. The sentence of one year rigorous imprisonment for the second accused was upheld as the minimum prescribed under the law, and no further reduction was permitted., Criminal Appeal No. 1170 of 2000 is dismissed. The Madras High Court directs the trial court to secure the second accused and commit her to prison to serve the remaining period of sentence, with any time already served to be set off under Section 428 of the Code of Criminal Procedure., The trial court had determined the value of assets acquired by the first accused as disproportionate to his known sources of income at Rs.35,25,136/-. This determination was made for the purpose of action under Section 12 of the Criminal Law (Amendment) Ordinance Act, 1944. A separate order in Criminal Miscellaneous Petition No. 2 of 1997, passed by the Principal Sessions Judge, Madurai, under Section 11 of the Criminal Law (Amendment) Act, 1944, was confirmed with modification: the forfeiture amount was adjusted to Rs.33,25,165/-, with interest at 6 % per annum from the date of interim attachment (06‑03‑1997)., Consequently, Civil Miscellaneous Application No. 425 of 2001 is dismissed, and the related Miscellaneous Petition is closed. Copies of this order are directed to the Special Judge (XIII Additional Judge), Chennai; the Principal Sessions Judge, Madurai; the Inspector of Police, Vigilance and Anti‑Corruption, Dindigul; and the Public Prosecutor, High Court, Madras.
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High Court of Punjab and Haryana at Chandigarh on its own motion versus State of Haryana through Chief Secretary, Home Secretary, Home Minister, Deputy Commissioner, Nuh, Senior Superintendent of Police, Nuh. Present: Mr. Baldev R. Mahajan, Advocate General, Haryana; Mr. Deepak Sabherwal, Additional Advocate General, Haryana; Ms. Shruti Jain Goyal, Senior Deputy Advocate General, Haryana. Notice of motion. Mr. B. R. Mahajan, Advocate General, Haryana with Ms. Shruti Jain Goyal, Senior Deputy Advocate General, Haryana accepts notice., The news items in the Times of India and The Indian Express report that demolitions are being carried out in two districts, Nuh and Gurugram, on the ground that individuals involved in antisocial activities had made illegal constructions. The reports state that commercial buildings, residential buildings and restaurants situated next to a hospital, which had existed for a long time, have been brought down by bulldozers. The Home Minister is quoted as saying that bulldozers are part of ilaaj (treatment) as the Government probes communal violence. These news items are appended to the file for ready reference., Lord Acton stated that power tends to corrupt and absolute power corrupts absolutely. In such circumstances we are constrained to issue notice to the State of Haryana as it has come to our notice that the State is using force and demolishing buildings on the ground that some riots have occurred in Gurugram and Nuh., It appears that demolition orders and notices have not been issued and the law and order problem is being used as a ruse to bring down buildings without following the procedure established by law. The issue also arises whether buildings belonging to a particular community are being demolished under the guise of law and order and whether an exercise of ethnic cleansing is being conducted by the State. We are of the considered opinion that the Constitution of India protects the citizens of this country and no demolition can be carried out without following the procedure prescribed in law. Accordingly, we direct the State of Haryana to furnish an affidavit stating how many buildings have been demolished in the last two weeks in both Nuh and Gurugram and whether any notice was issued before demolition. If any demolition is to be carried out today, it should be stopped if the procedure is not followed as per law., The matter shall be listed on 11 August 2023. The office shall register the case and allot a number to the same. We request Mr. Kshitij Sharma, Advocate, to assist us on the issue involved and he is appointed as amicus curiae for the said purpose. A copy of the order shall be given to Mr. Kshitij Sharma and counsel for the State under the signatures of the Bench Secretary., Shivani, Judge. Neutral Citation No: 2 of 2.
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Chack Z Singh, Hangarh, Kumhariyawas, Chaksu, Jaipur) Petitioner Versus The Chief Secretary, Government of Rajasthan, Government Secretariat, Jaipur; The Principal Secretary, Secondary Education Department, Government of Rajasthan, Government Secretariat, Jaipur; The Director Secondary Education, Bikaner (Rajasthan); The Joint Director, Secondary Education Jaipur Division, District Jaipur (Rajasthan); District Education Officer (Secondary Education), Jaipur Respondents. For Petitioner(s): Mr. Arvind Sharma, Ms. Mamta Agarwal. For Respondent(s): Mr. S. Zakawat Ali, Additional Government Counsel. Reserved on: 17/05/2023. Pronounced on: 25/05/2023. Judgment Reportable., The issue involved in this petition is whether a person who is born as a female with predominantly male orientation or vice versa has a right to be recognised as a member of the gender of one's choice, when the person has undergone surgical procedures for change of physical gender attributes. The right of a human being to choose his or her sex or gender identity is integral to his or her personality and is one of the most basic aspects of self‑determination, dignity and freedom. It is in the above background that the issue involved in this petition is required to be considered., The petitioner was born as a female and completed her studies as a female student. After completion of her studies she obtained appointment as Physical Training Instructor, Grade Three (PTI Gr‑III) under the General Female Category vide order dated 12.07.2013 and in the service record her status was mentioned as Female. Although she was assigned female gender at birth, she was suffering from Gender Identity Disorder. At the age of 32 years she consulted a psychiatrist who conducted a psychological evaluation and, on the basis of detailed clinical examination, opined that the petitioner had no indication of any psychiatric disorder and was suffering only with Gender Identity Disorder and was found fit for Sex Reassignment Surgery vide Annexure‑4. Thereafter the petitioner underwent Gender Reassignment Surgery (Female to Male) with Phalloplasty – Penis Prosthesis in the year 2014‑2017 at Kokilaben Dhirubhai Ambani Hospital, Andheri (West), Mumbai and after undergoing the surgery the petitioner became male from female. After this surgery the petitioner recovered completely and became a male with functional shaft and was on hormone therapy. The consultant urologist issued a certificate vide Annexure‑5 on 09.08.2018. After obtaining the status of male gender, the petitioner changed his name in the Official Gazette of India on 08.09.2018 from Chinder Pal Kaur to Chinder Pal Singh. The name was also changed in his Aadhaar Card No. 935164446293., The petitioner submitted an application on 22.09.2018 in the office of the Principal of the School for change of his name and gender in his service record. The Principal referred the matter to the Joint Director, Secondary Education, for necessary action on 01.10.2018. But even after more than three years the name and gender of the petitioner have not been changed in his service record. Under these circumstances the petitioner has approached this court by filing this petition with the following prayers:, It is therefore humbly prayed that Your Lordship may graciously be pleased to accept and allow this writ petition and by an appropriate writ, order or direction: (i) Issue an appropriate writ, order or direction directing the respondents to change the name and gender in the service record and to enter the name of the petitioner’s family member as beneficiary; (ii) Direct the respondents to change the name and gender from Ms. Chinder Pal Kaur to Chinder Pal Singh and gender from Female to Male in the service record; (iii) Direct the respondents to decide the representation dated 22.09.2018 after considering his genuine prayer for change of name and gender; (iv) Pass any other appropriate order which may be found just and proper in the facts and circumstances of the case; (v) Award the cost of the writ petition in favour of the petitioner., Counsel for the petitioner submitted that with the development of medical science the petitioner has undergone gender reassignment surgery and has become male after changing his gender; he has performed marriage and two children have been born out of wedlock. Counsel submits that unless the name and gender of the petitioner are changed in his service record, it would be difficult for him and his family to obtain the benefits of his service. In the given circumstances it is necessary for the respondents to make these requisite changes in the service record of the petitioner., Counsel for the respondents submitted that the petitioner got appointment as a female candidate and her name and gender were recorded on the basis of the identity furnished by her and if she has changed her gender after undergoing surgery, then she should obtain a declaration in this regard from the Civil Court. Until such declaration is issued by a Civil Court, the name and gender of the petitioner cannot be changed in her service record., Heard and considered the submissions made at the bar and perused the material available on the record. The petitioner identifies himself as a male due to his sexual orientation and has undergone psychological treatment and gender reassignment surgery. He is now fighting for recognition as male and change of his name and gender in his service record, but the respondents are rigid in not making these changes., Gender identity is the most fundamental aspect of life which refers to a person’s intrinsic sense of being male or female. There are times when the human body is not formed with all proper attributes, therefore genital anatomy problems may arise and many do not choose to undergo gender reassignment surgery to change their gender. Everyone is entitled to enjoy all human rights which are a basic necessity to survive, without discrimination on the basis of sexual orientation or gender identity., According to the Rigveda, in Hindu mythology three types of genders have been considered – the male (Purush), the female (Prakriti) and the third gender (Tritiya Prakriti). In recent times modern Indian society has considered the third gender legally. Still, third‑gender people are struggling to constitute a part of civil society. Right to equality is guaranteed by the Constitution of India, which is a fundamental right. Everybody has a right to be treated with respect and dignity, be it male, female or any other gender. Science has proved that there are more genders than just cisgender., The Apex Court in the case of National Legal Services Authority v. Union of India (2014) 5 SCC 438 considered the issue of recognition of self‑perceived gender identity and specifically held that transgender persons are also entitled to basic human rights including the right to life with human dignity, the right to privacy and freedom of expression. It held that the right of a person to self‑perceived gender identity is a part of his or her fundamental rights guaranteed under Articles 14 and 21 of the Constitution of India and a person cannot be discriminated on the basis of sexual orientation or gender identity different from that assigned at birth., The Honorable Apex Court discussed the issue involved in this petition as follows: Gender identity is one of the most fundamental aspects of life which refers to a person's intrinsic sense of being male, female or transgender or transsexual. A person's sex is usually assigned at birth, but a relatively small group may be born with bodies incorporating both male and female physiology. At times genital anatomy problems may arise and the person's innate perception of themselves is not in conformity with the sex assigned at birth and may include pre‑ and post‑operative transsexual persons as well as persons who do not choose to undergo or do not have access to operation. Countries, including India, grapple with the question of attribution of gender to persons who believe they belong to the opposite sex. Some persons undertake surgical and other procedures to alter their bodies and acquire gender characteristics of the sex which conform to their perception of gender, leading to legal and social complications since official records of gender at birth are at variance with the assumed gender identity. Gender identity refers to each person's deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including personal sense of the body which may involve a freely chosen modification of bodily appearance or functions by medical, surgical or other means and other expressions of gender, including dress, speech and mannerisms. Gender identity therefore refers to an individual's self‑identification as a man, woman, transgender or other identified category. Sexual orientation refers to an individual's enduring physical, romantic and/or emotional attraction to another person. Sexual orientation includes transgender and gender‑variant people and may or may not change during or after gender transition, which also includes homosexuals, bisexuals, heterosexuals, asexuals etc. Gender identity and sexual orientation are different concepts. Each person's self‑defined sexual orientation and gender identity is integral to their personality and is one of the most basic aspects of self‑determination, dignity and freedom and no one shall be forced to undergo medical procedures, including sex reassignment surgery, sterilisation or hormonal therapy, as a requirement for legal recognition of their gender identity., Article 14 of the Constitution of India states that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. Equality includes the full and equal enjoyment of all rights and freedom. Right to equality has been declared as the basic feature of the Constitution and treatment of equals as unequals or unequals as equals would be violative of the basic structure of the Constitution. Article 14 also ensures equal protection and hence a positive obligation on the State to ensure equal protection of laws by bringing in necessary social and economic changes, so that everyone including transgender persons may enjoy equal protection of laws and nobody is denied such protection. Article 14 does not restrict the word ‘person’ to male or female. Hijras/transgender persons who are neither male nor female fall within the expression ‘person’ and are entitled to legal protection of laws in all spheres of State activity, including employment, healthcare, education as well as equal civil and citizenship rights, as enjoyed by any other citizen of this country., It may be clarified that the term transgender is used in a wider sense in the present age and includes gay, lesbian and bisexual persons. Etymologically the term transgender is derived from two words, namely, trans and gender. ‘Trans’ is a Latin word which means across or beyond. The grammatical meaning of transgender therefore is across or beyond gender. This has come to be known as an umbrella term which includes gay men, lesbians, bisexuals and cross‑dressers within its scope. In India transgender persons comprise hijras, eunuchs, Kothis, Aravanis, Jogappas, Shiv‑Shakthis etc. Hijras are biological males who reject their masculinity identity to identify either as women or not men. Aravanis are hijras in Tamil Nadu who identify as Aravani. Kothis are a heterogeneous group of biological males who show varying degrees of femininity. Jogtas/Jogappas are those who are dedicated to serve Goddess Renukha Devi in Maharashtra and Karnataka; sometimes Jogti hijras denote male‑to‑female transgender persons who are devotees of Goddess Renukha and are also from the hijra community. Shiv‑Shakthis are considered males who are possessed by or particularly close to a goddess and who have feminine gender expression. Their way of life differs from the normative gender role of men and women and they face difficulties as they are neither categorized as men nor women., Aristotle opined that treating all equal things equal and all unequal things unequal amounts to justice. Kant held that at the basis of all conceptions of justice lies the golden rule that one should treat others as one would want to be treated. When Locke conceived of individual liberties, the individuals he had in mind were independently rich males. Similarly, Kant thought of economically self‑sufficient males as the only possible citizens of a liberal democratic state. These theories may not be relevant today as their bias is obvious. In post‑traditional liberal democratic theories of justice, the background assumption is that humans have equal value and should therefore be treated equally by equal laws. This can be described as Reflective Equilibrium. The method of Reflective Equilibrium was first introduced by Nelson Goodman in Fact, Fiction and Forecast (1955). John Rawls elaborated this method by introducing the conception of Justice as Fairness. In his A Theory of Justice, Rawls proposed a model of just institutions for democratic societies, drawing on certain pre‑theoretical elementary moral beliefs which he assumes most members of democratic societies would accept. Justice as fairness tries to draw solely upon basic intuitive ideas embedded in the political institutions of a constitutional democratic regime and the public traditions of their interpretations. Based on this understanding, Rawls aims at a set of universalistic rules with which the justice of present formal and informal institutions can be assessed. When we combine Rawls’ notion of Justice as Fairness with the notions of Distributive Justice, to which Nobel Laureate Professor Amartya Sen has also subscribed, we obtain a jurisprudential basis for doing justice to vulnerable groups which definitely include transgender persons. Recognising transgender persons as part of vulnerable and marginalised sections brings them within the fold of rights recognised for other marginalised groups. This is the minimum response to assuage the insult and injury suffered by them and to pave the way for fast‑tracking the realisation of their human rights., Transgender persons' right to decide their self‑identified gender is also upheld and the Centre and State Governments are directed to grant legal recognition of their gender identity as male, female or third gender., On the basis of the directions issued by the Honorable Apex Court, the Central Government enacted the Transgender Persons (Protection of Rights) Act, 2019 (Act of 2019) and Rules of 2020 have been framed thereunder. Section 2(k) of the Act defines ‘transgender person’ as a person whose gender does not match the gender assigned at birth and includes trans‑man or trans‑woman (whether or not such person has undergone sex reassignment surgery or hormone therapy or laser therapy or other therapy), person with intersex variations, genderqueer and person having such sociocultural identities as kinner, hijra, aravani and jogta., Section 3 of the Act prohibits discrimination against any transgender person on grounds including denial or discontinuation of education, denial or discontinuation of access to goods, accommodation, services, facilities, benefits, privilege or opportunity, and denial of access to or unfair treatment in government or private establishments., Chapter III, Section 4 of the Act deals with recognition of identity of a transgender person. A transgender person shall have a right to be recognised as such and shall have a right to self‑perceived gender identity. Section 5 provides for application for a certificate of identity to the District Magistrate, with a parent or guardian making the application for a minor. Section 6 provides that the District Magistrate shall issue a certificate of identity indicating the gender as transgender, and the gender shall be recorded in all official documents. Section 7 provides that after issuance of a certificate, if a transgender person undergoes surgery to change gender to male or female, the person may apply, along with a medical certificate, to the District Magistrate for a revised certificate indicating change in gender. The revised certificate entitles the person to change the first name in the birth certificate and all other official documents, without affecting other rights and entitlements., Chapter IV and V of the Act deal with welfare measures and obligations of government authorities to implement the provisions. Section 8 obliges the appropriate Government to secure full and effective participation of transgender persons and their inclusion in society, to take welfare measures to protect their rights and interests, to formulate transgender‑sensitive, non‑stigmatising and non‑discriminatory welfare schemes, to rescue, protect and rehabilitate transgender persons, and to promote their participation in cultural and recreational activities. Section 9 prohibits discrimination in employment. Section 10 obliges every establishment to ensure compliance with the Act and provide prescribed facilities to transgender persons. Section 11 provides for a grievance redressal mechanism by designating a complaint officer., Section 7 of the Act provides that after issuance of a certificate under Section 6(1), if the transgender person undergoes surgery to change gender, the person may apply, along with a medical certificate, to the District Magistrate for a revised certificate. Upon satisfaction, the District Magistrate shall issue a certificate indicating change in gender, which entitles the person to obtain the required changes in the birth certificate and other official documents. The purpose of the Act is to provide equality and respect to transgender persons and must be interpreted to achieve its solemn purpose. Both transgender persons issued a certificate under Section 6 and persons like the petitioner who underwent gender reassignment prior to the Act are entitled to apply to the District Magistrate for a certificate indicating change in gender. Denying such a right would frustrate the purpose of the Act., The provisions of the Act recognise the rights of transgender persons to a life with dignity and prohibit discrimination against them. The object of the enactment is to give effect to the rights guaranteed under Articles 14, 15, 19 and 21 of the Constitution of India., In view of the specific provision of the Act that a transgender person has a right to be recognised not only as a transgender but also a right of self‑perceived gender identity, this court is of the opinion that the petitioner who has opted for the male gender and has undergone sex reassignment surgeries to aid his self‑perception as a member of the said gender, would be recognised as male and is entitled to the change and correction of his name and gender in his service record., It is noteworthy that after gender reassignment surgery the petitioner has become male, performed marriage and two sons have been born. It is very difficult for the petitioner to clear his status and identity in society. If the identity of the petitioner is not corrected in his service record, it would be difficult for the wife and children to obtain service benefits., Looking to the provisions contained under Section 7 of the Act, the petitioner is directed to submit an application before the District Magistrate having jurisdiction. The District Magistrate shall follow the procedure contained under the Act and the Rules of 2020 to verify the fact of gender reassignment and, on being satisfied, issue the required certificate to the petitioner. Such procedure shall be completed by the District Magistrate within sixty days from the date the petitioner applies, along with a certified copy of this order. On the basis of the certificate, the petitioner shall be at liberty to approach the respondents, who shall take immediate steps to change the name and gender in his service record. Such exercise shall be completed within one month from the date the petitioner approaches the respondents along with the certified copy of this order and the certificate issued by the District Magistrate., Before parting with the order, the Chief Secretary of the State is directed to instruct all District Magistrates of the State to implement the provisions of the Act effectively and positively and to establish a separate Grievance Redressal Mechanism Forum in each district to deal with complaints relating to violation of the Act and to provide all benefits of the Act to transgender persons. The Chief Secretary is expected to complete the necessary exercise for effective implementation of the provisions within three months of receipt of a copy of this order and to submit a compliance report to this Court on or before 04.09.2023., The Office is directed to send a copy of this order to the Chief Secretary for necessary action and compliance. With the aforesaid directions, this writ petition stands disposed of.
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Stay application and all applications, pending if any, also stands disposed of. No order as to costs. List this matter on 04.09.2023 to check the compliance of this order.
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W.P. No. 2758 of 2023 dated 08.02.2023 The Federal Bank Ltd., represented by its Senior Manager, LCRD, Coimbatore Division, No. 21 Variety Hall Road, Coimbatore-641001 (Petitioner) versus The Sub Registrar, Office of Sub Registrar, Pollachi, No. 104, Taluk Office Campus, Coimbatore Road, Pollachi-642001 (Respondent No. 1) and Office of the Principal Commissioner of Goods and Services Tax and Central Excise, Headquarters, Preventive Unit, 6/7A, T.D. Street, Race Course Road, Coimbatore-641018 (Respondent No. 2) and Jayaprakash (Respondent No. 3)., The writ petition is filed under Article 226 of the Constitution of India, seeking a writ of certiorari and mandamus, calling for the records of the first respondent and to quash Reply Letter No. Ka No. 538/2022 dated 17.10.2022 of the first respondent, with consequential relief directing the first respondent to register the Sale Certificate dated 09.09.2022 issued by the petitioner bank in favour of the third respondent auction purchaser., The challenge in this writ petition is an order dated 17.10.2022 passed by the first respondent rejecting the request of the petitioner for registration of the Sale Certificate., The petitioner bank is a secured creditor of the property which was mortgaged in its favour on 19.10.2017. The deed of mortgage was registered as Document No. 8509 of 2017 before the first respondent. As the mortgagor failed to repay the outstanding amount, the loan account was classified as non‑performing asset and action was initiated under the SARFAESI Act. Consequently, the property was sold through a public auction, and a sale certificate was issued on 09.09.2022. When the sale certificate was presented for registration, the impugned order was passed rejecting the request of the petitioner for registration of the sale certificate on the sole ground that the property was provisionally attached under Section 83 of the Goods and Services Tax Act on 18.12.2021., Mr. Yogesh Kannadasan, Special Government Pleader, takes notice for the first respondent and submits that as per Rule 55-A of the Tamil Nadu Registration Rules, if any property is attached or mortgaged or a lease agreement is entered into, the sale deed cannot be registered. Thus, as per Rule 55-A of the Tamil Nadu Registration Rules, a document cannot be presented for registration unless the attachment is raised., Learned counsel appearing for the petitioner would mainly contend that even applying Rule 55-A of the Registration Rules, the so‑called provisional attachment has lapsed by operation of law itself. Therefore, according to the counsel for the petitioner, Section 83 of the Goods and Services Tax Act makes it very clear that any provisional attachment passed under Section 83(1) of the Act will continue only for a period of one year and not thereafter. Despite this being brought to the notice of the first respondent, the impugned order was passed., The Madras High Court heard the learned counsel appearing for the petitioner, the learned Special Government Pleader appearing for the respondents and perused the materials available on record., The Madras High Court has encountered several writ petitions challenging the orders of the registering authority refusing to register documents or transactions permitted under law. Though Rule 55-A has not been directly challenged, this Court is of the view that when a subordinate legislation is ex facie found to be in conflict with the provision of the parent Act and the Transfer of Property Act as well as constitutional rights, the subordinate legislation will have to yield to the substantive law governing the field and the Constitution, as pointed out by the Supreme Court in Government of Andhra Pradesh versus Lakshmi Devi, 2008 Supreme Court Cases 720, wherein it is held as follows: 34. In India the grundnorm is the Constitution of India, and the hierarchy is as follows: (i) the Constitution of India; (ii) statutory law, which may be either law made by Parliament or by the State Legislature; (iii) delegated legislation, which may be in the form of rules made under the statute, regulations made under the statute, etc.; (iv) purely executive orders not made under any statute. 35. If a law in a higher layer in the above hierarchy clashes with a law in a lower layer, the former will prevail. Hence a constitutional provision will prevail over all other laws, whether in a statute or in delegated legislation or in an executive order. The Constitution is the highest law of the land, and no law which is in conflict with it can survive. Since the law made by the legislature is in the second layer of the hierarchy, obviously it will be invalid if it is in conflict with a provision in the Constitution (except the directive principles which, by Article 37, have been expressly made non‑enforceable). In view of the above judgment this Court is inclined to test the validity of Rule 55-A of the Registration Act which came into force from 05.09.2022., It is relevant to note that the object of the Registration Act is designed to prevent fraud by obtaining a contemporaneous publication and an unimpeachable record of each document (Rajni Tandon v. Dulal Ranjan Ghosh Dastidar, (2009) 14 Supreme Court Cases 782). It is for this reason that the Supreme Court in State of Rajasthan v. Basant Nahata, (2005) 12 Supreme Court Cases 77, has held that the Act only strikes at the documents and not at the transactions. The whole aim of the Act is to govern documents and not the transactions embodied therein., Prior to the insertion of Rule 55-A the Registrar could refuse to register a document if it fell within any of the categories in Section 22-A and B of the Act or under Section 34 or if the case fell within any of the circumstances set out in Rule 162 of the Registration Rules. However, it has become a practice for Sub‑Registrars to refuse registration of documents citing internal circulars requiring them to produce title deeds to scrutinize title etc. Several writ petitions have come up before this Court challenging such refusals. In one such case, the issue was whether once a sale agreement is registered by the vendor, the subsequent documents in respect of the same immovable property could be refused to be registered by the Registrar. In other words, once an agreement for sale is registered under the Registration Act, whether the vendor is debarred from effecting any agreement or transfer in respect of the same immovable property. As there were conflicting decisions of single judges, the matter was directed to be placed before a Division Bench., The reference was eventually answered by the Division Bench in Ramayee v. Sub‑Registrar (2020 6 CTC 697), in the following terms: As already indicated, the purpose of registration is only to give a public notice. It is for the buyer or subsequent transferee to make reasonable enquiry. Doctrine of caveat emptor will also apply to every transfer. It is for them to verify the title of the property by making reasonable enquiry. At any event, subsequent transfer will always be subject to the rights already created. Therefore, it cannot be said that merely because agreement for sale is registered without obtaining decree of declaration that such agreement is void, subsequent transfer is prohibited and cannot be registered. We hold that as discussed in our judgment, the Registrar has no right to refuse to register the subsequent document on the basis that agreement of sale was already registered in respect of the same property., The State of Tamil Nadu went on appeal to the Supreme Court against the judgment of the Division Bench in Ramayee’s case in Special Leave Petition (Civil) 4844 of 2021 and the same was dismissed on 05.04.2021 by way of the following order: We find no grounds to interfere with the well‑reasoned judgment and order of the Division Bench of the High Court. The Special Leave Petition is, accordingly, dismissed. Pending application(s), if any, stands disposed., After the dismissal of the Special Leave Petition, the Inspector General of Registration exercised power under Section 69(2) of the Registration Act, which was thereafter notified by the State Government inserting Rule 55-A with effect from 05.09.2022. Rule 55-A reads as follows: “55A. (i) The registering officer before whom a document relating to immovable property is presented for registration shall not register the same unless the presentant produces the previous original deed by which the executant acquired right over the subject property and an Encumbrance Certificate pertaining to the property obtained within ten days from the date of presentation. Provided that in case an encumbrance as to mortgage, orders on attachment of property, sale agreement or lease agreement exists over the property, the registering officer shall not register such document if the time limit for filing of suit is not lapsed, or No Objection Certificate is not granted by the appropriate authority or raising of the attachment is not done, as the case may be. Provided further that in case the previous original deed is not available as the property being an ancestral one, the registering officer shall not register such document unless the presentant produces any revenue record evidencing the executant’s right over the subject property such as patta copy issued by Revenue Department or tax receipt. Provided also that if the previous original deed is lost, the registering officer shall register such document only on production of a non‑traceable Certificate issued by the Police Department along with the advertisement published in the local newspaper as to the notice of loss of the previous original deed. Provided also that production of the previous original deed shall not be necessary where the Government or a statutory body is the executant of the document or for such class of documents as may be notified by the Inspector General of Registration from time to time. (iii) The registering officer, on being satisfied that the description of the property contained in the document presented for registration conforms with the description of the property found in the previous original deed produced by the presentant as provided under this rule, shall inscribe the word ‘verified’ on a conspicuous portion of the first page of such title deed and affix his signature with date and thereafter cause scanning of the page containing such inscription as a reference document. (iv) In case where revenue records are produced under this rule, the same shall be scanned as the main document and where Non‑Traceable Certificate and the advertisement published in the local newspaper are submitted by the presentant, the same shall be scanned as reference documents. Provided that such verification and scanning of the previous original deed or record in the manner provided under this rule shall not be construed to be an act of ascertaining the validity of the document presented for registration and also the same shall not absolve or deprive any person from the provisions contained in Parts XIV and XV of the Registration Act, 1908 (Central Act XVI of 1908). A corresponding amendment has also been made to Rule 162 of the Registration Rules authorizing the refusal of registration on any of the grounds set out in Rule 55-A.”, It is now necessary to closely examine Rule 55-A as this is the keystone of the case of the respondents for refusing registration of the document presented by the petitioner. Rule 55-A(i) authorizes the Registrar to refuse registration of the document unless the presentant produces the previous original sale deed by which the executant acquired right over the property, and the Encumbrance Certificate pertaining to the said property. It is not difficult to foresee that a literal application of this rule would lead to several absurd results. For example, if a person desires to execute a will and get it registered, and the property is mortgaged to a bank, it is obvious that he would be unable to present the original document. Similarly, where one co‑sharer deals with his interest in joint family property, registration can be easily stalled if the other co‑sharer refuses to part with the original parent deed. In a recent decision, Ananthi v. District Registrar, W.P. 2498 of 2023, order dated 02.02.2023, this Court was confronted with a case where the Sub‑Registrar had relied on Rule 55-A(i) and refused to register a sale deed only on the ground that the original partition deed had not been produced. Quashing the impugned order, this Court observed as follows: While framing such rule, the Government has not taken into consideration the fact that the partition deeds are entered among the co‑owners. Normally, the original partition deed will be retained by any one of the family members. In fact, there may be a situation wherein the person who is in possession of the original partition deed may not be willing to produce the document. If such original is not produced as required under this rule, the other members of the family cannot deal with the property., It appears that on the very same day, 02.02.2023, the Inspector General of Registration issued Circular No. 22482/Cl/2022, dispensing with the production of the original documents in certain situations indicated in the guidelines. In the considered opinion of this Court, the very fact that several exemptions had to be granted by a circular clearly demonstrates the unworkability of Rule 55-A(i). However, a very intriguing aspect lies in the amendment to Rule 162 inserting Clause XX which reads as follows: Clause XX – Rule 55A: That the presentant of the document fails to produce the original deed or record specified in Rule 55A. The newly introduced Clause XX is preceded by Clauses I‑XIX authorizing the Registrar to refuse registration on the grounds set out therein. More importantly, each of the clauses authorizing the Registrar to refuse registration from Clauses I to XIX specifically refers to a substantive provision of law in the Registration Act or in some other legislation like the Income Tax Act, 1961 as the source of power. Clause XX, on the other hand, does not refer to any substantive provision of law. Strangely and most curiously it authorizes the Registrar to refuse registration for non‑production of original deed or record as specified in Rule 55-A. Normally, a subordinate legislation like a rule is authorized by a substantive provision of law. However, this is a unique case where a rule is authorized by another rule. This Court is of the considered opinion that in the absence of any substantive provision of law in the parent legislation, Clause XX is clearly beyond the powers of the Inspector General of Registration. The scheme of Rule 162, particularly Clauses I to XIX, makes it very clear that the grounds for refusal must be traceable to a substantive provision of law in the Registration Act or other legislation., Coming to the first proviso to Rule 55-A(i), it states that in case an encumbrance as to mortgage, or an order as to attachment of property, or a sale agreement or lease agreement exists over the property, the registering officer shall not register such document if the time limit for filing of suit is not lapsed or No Objection Certificate is not granted by the appropriate authority or raising of the attachment is not done. It is relevant to state that this proviso has the effect of nullifying several provisions of the Transfer of Property Act. The precise issue was highlighted and pointed out by the Division Bench in Ramayee’s case. Dealing with the registration of transactions after a mortgage or a lease, the Court observed: 29. In the light of the above, when we deal with the various provisions of the Transfer of Property Act the question arises as to whether the transfer is restricted to one time in respect of the immovable property, unless the previous transfer or any agreement is set aside in the court of law, and other transfer is permissible? The answer is absolutely no for the following reasons: The property of any kind may be transferred, except as otherwise provided by the Transfer of Property Act or by any other law for the time being, as provided in Section 6 of the Transfer of Property Act. 30. Every person competent to contract and entitled to transferable property, or authorised to dispose of transferable property not his own, is competent to transfer such property either wholly or in part, and either absolutely or conditionally, in the circumstances, to the extent and in the manner allowed and prescribed by any law for the time being in force, as per Section 7 of the Transfer of Property Act. The reading of the above section makes it very clear that even a person not entitled to transferable property is competent to transfer such property when he was authorised to dispose of such property., Section 41 of the Transfer of Property Act deals with the power of the ostensible owner to effect the transfer of the property with consent, express or implied, of the real owner. From the principle underlined in Section 41 it is clear that the ostensible owner of the property, with the consent express or implied and representing himself as owner of the property though he does not have the title, can deal with the property. Similarly, Section 42 deals with the transfer by a person having authority to revoke the former transfer. When a person transfers any immovable property reserving power to revoke the transfer, and subsequently transfers the property for consideration to another transferee, such transfer operates in favour of such transferee subject to any condition attached to the exercise of the power as a revocation of the former transfer to the extent of the power. Section 43 deals with transfer by an unauthorised person who subsequently acquires interest in the property transferred. The above section makes it very clear that even a person who has no title over the property, purports to transfer to another by deed and when he subsequently acquires any interest in the property sufficient to satisfy the transfer, the title would pass to the transferee without any further act on the part of the transferor, provided the transferee has not rescinded the transfer and opts for such effectuation. The principle also makes it very clear that even a transfer by an unauthorised person is not prohibited; only the validity of the title would be subject to his acquiring subsequent interest in the property., Section 48 of the Transfer of Property Act deals with priority of rights created by transfer, which reads as follows: ‘Where a person purports to create by transfer at different times rights in or over the same immovable property, and such rights cannot all exist or be exercised to their full extent together, each later created right shall, in the absence of a special contract or reservation binding the earlier transferees, be subject to the rights previously created.’ The above section determines the priority when there are successive transfers, where the person creates transfer at different times rights in or over the same immovable property; such rights cannot all exist or be exercised to their full extent together, each later created right shall, in the absence of a special contract or reservation, bind the earlier transferee and be subject to the rights previously created. Reading of the above section makes it clear that there is no bar for successive transfers; however, the rights in later transfer shall always be subject to the rights already created in the earlier transfer. It is also pertinent to note that even if transfer is made during a pending suit, such transfer is not void but is subject to the result of the suit. Section 53 deals with fraudulent transfer. Even such fraudulent transfer made with intent to defeat or delay the creditors of the transferor shall be voidable at the option of any creditor so defeated or delayed. Even in such cases the rights of a transferee in good faith and for consideration are protected. Section 56 deals with marshalling by subsequent purchaser. The provision also makes it clear that when the owner of two or more properties mortgages them to one person and then sells one or more of the properties to another person, the buyer, in the absence of a contract to the contrary, is entitled to have the mortgage‑debt satisfied out of the property or properties not sold to him, so far as the same will extend, but not so as to prejudice the rights of the mortgagee or persons claiming under him or of any other person who has for consideration acquired an interest in any of the properties. The provision also makes it clear that though there were mortgages already created there is no bar for subsequent transfer of the property, but the subsequent transfer is subject to the mortgage earlier created. Section 57 deals with the provision by court for encumbrances and sale freed therefrom. The section also makes it clear that even properties already encumbered can be brought under court sale and the encumbrance can be freed after issuance of notice to the encumberer. It is also relevant to note that even a mortgage is a transfer of an interest in specific immovable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt, or the performance of an engagement which may give rise to a pecuniary liability. Therefore, it cannot be said that once the encumbrance is made by creating a mortgage, the mortgagor is totally prohibited from effecting any further transfer. In fact, if any such transfer is made, it is always subject to the mortgage alone., The judgment of the learned single Judge in Venkattamma v. The Sub‑Registrar, W.P. No. 33601 of 2019, holding that unless a declaration declaring the agreement for sale is null and void is obtained from a civil court, no further transfer could be registered, is, in our view, not according to law. It is also to be noted that in the above case only the agreement for sale was registered. Section 54 of the Transfer of Property Act deals with sale defined. Sale is a transfer of ownership in exchange for a price paid or promised or part‑paid and part‑promised. Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument. In the case of tangible immovable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property. Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs, in possession of the property. A contract for sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not, of itself, create any interest in or charge on such property., The contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not, of itself, create any interest or charge on such property. The agreement of sale is merely a document creating the right to obtain a deed of sale on fulfilment of terms and conditions specified therein and it is only capable of enforcement in the event of breach of contract by the other side. Even to enforce such agreement for specific performance, the agreement holder has to establish not only the contract but other grounds viz., readiness and willingness on his part to obtain a decree of specific performance provided the suit is filed within time., In Narandas Karsondas v. S. K. Kamtam [(1977) 3 Supreme Court Cases 247 : AIR 1977 SC 774] the Honourable Supreme Court also considered the nature of the right created on the immovable property by a contract for sale. It has been stated that a contract of sale in view of Section 24 of the Transfer of Property Act does not of itself create any interest in or charge on the property. The personal obligation created by a contract of sale (as recognised in Section 3 of the Specific Relief Act and Section 91 of the Trust Act and described in Section 40 of the Transfer of Property Act) is an obligation arising out of contract. Section 19(b) of the Specific Relief Act also protects the subsequent transferee for value and for consideration in good faith without notice of the original contract. Even if a person has no title to the property, has entered into a contract for sale, the transferee can seek specific performance under Section 13 of the Specific Relief Act., From a combined reading of various provisions of the Transfer of Property Act as referred above, we are of the view that there is no bar for creating subsequent transfer of the immovable property. Effect of the subsequent transfer is always subject to the earlier transfer created by the transferor of the immovable property. Therefore, it cannot be said that since the agreement for sale is registered the owner, i.e., the vendor, has no right to execute any document. In Venkattamma’s case, a settlement deed was presented for registration by the vendor after three years of the so‑called contract. Merely on the basis of the agreement for sale, the registrar refused to register the document which is against the very substantive law of the country. If such approach is accepted, a situation may arise in every loan transaction that, because some contract is registered and shown in the encumbrance as a registered agreement, the owners of the property would be prohibited from dealing with the property as long as the encumbrance finds place in the encumbrance certificate. Such a situation would deprive the right of the owner of the property to deal with the property, which is a constitutional right., The effect of the first proviso is clearly an arbitrary exercise of power aimed at setting at naught the declaration of law by the Division Bench in Ramayee’s case. In the considered opinion of this Court, a subordinate legislation issued by the Inspector General of Registration under Section 69 of the Act cannot annul a declaration of law made by the Division Bench. In Madras Bar Association v. Union of India, 2021 Supreme Court Online SC 463, the Supreme Court quoted Chief Justice John Marshall’s classic observation in Marbury v. Madison (28 U.S. 137): It is emphatically the province and duty of the judicial department to say what the law is. The Hon’ble Supreme Court then observed: It is open to the legislature within certain limits to amend the provisions of an Act retrospectively and to declare what the law shall be deemed to have been, but it is not open to the legislature to say that a judgment of a Court properly constituted and rendered in exercise of its powers in a matter brought before it shall be deemed to be ineffective and the interpretation of the law shall be otherwise than as declared by the Court. Thus, when the legal position has already been declared by the Division Bench of this Court and has been affirmed by the Supreme Court, it is not open to the Inspector General of Registration to take a contra view and notify a subordinate legislation the effect of which is to completely render nugatory the interpretation made by this Court. Ex‑facie, the first proviso to Rule 55-A(i) is clearly illegal and is vitiated by a clear abuse of power., That apart, the first proviso appears to have been drafted without any application of mind. For instance, the limitation period for redeeming a mortgage is thirty years. Under the first proviso, if there exists a mortgage over the property, no document can be registered until the said limitation period has expired. As pointed out in Ramayee’s case, this nullifies the substantive provisions of Sections 48 and 56 of the Transfer of Property Act which give effect to the principle that there is no bar in dealing with a property which is the subject matter of the mortgage. Similarly, it is an elementary principle of law that a purchaser of a mortgaged property takes the property subject to the mortgage. Once a mortgage exists, it remains a mortgage unless the same is redeemed., The other provision barring registration is the execution of the lease and insisting on a No Objection Certificate.
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It is relevant to note that lease is only a transfer of right to enjoy the property in favour of the lessee, the ownership is always vested with the owner. Merely because transfer of right to enjoy such property is created in favour of the tenant or lessee, it cannot be said that owner has no right to deal with the property. There are many cases where property has been sold with existing lease. On such sale, once lessee has also attorned tenancy under the subsequent purchaser, there is no impediment for the owner of the property as the jural relationship of Writ Petition No. 2758 of 2023 lessor and lessee continues., Similarly, in paragraphs 40-43 of the judgment in Ramayee's case, the Supreme Court of India has categorically held that the registering authorities cannot bar the transfer of any property citing the registration of a sale or lease agreement. In the case of a sale agreement, it is settled law that an agreement of sale does not create any interest over the property [Suraj Lamp & Industries (P) Ltd. (2) v. State of Haryana, (2012) 1 Supreme Court Cases 56]. Similarly, an order of attachment does not bar registration. In fact, in V.K. Sreedharan v. Chandramaath Balakrishnan, (1990) 3 Supreme Court Cases 291, the Supreme Court of India made it clear that an agreement of sale entered before the order of attachment can be taken to its logical conclusion and a sale deed can be executed even after the order of attachment. It was observed as follows: In our opinion, the view taken by the High Courts of Madras, Bombay, Calcutta and Travancore-Cochin in the aforesaid cases appears to be reasonable and could be accepted as correct. The agreement for sale indeed creates an obligation attached to the ownership of the property and since the attaching creditor is entitled to attach only the right, title and interest of the judgment-debtor, the attachment cannot be free from the obligations incurred under the contract for sale. Section 64 of the Code of Civil Procedure no doubt was intended to protect the attaching creditor, but if the subsequent conveyance is in pursuance of an agreement for sale which was before the attachment, the contractual obligation arising therefrom must be allowed to prevail over the rights of the attaching creditor. The rights of the attaching creditor shall not be allowed to override the contractual obligation arising from an antecedent agreement for sale of the attached property. The attaching creditor cannot ignore that obligation and proceed to bring the property to sale as if it remained the absolute property of the judgment-debtor., The effect of the first proviso is to virtually nullify the aforesaid statement of law by the Supreme Court of India which is binding law under Article 141. That apart, even if an order of attachment is made, any sale deed registered thereafter would be automatically void only against all claims enforceable under the attachment under the provisions of Section 64 of the Code of Civil Procedure. For example, if the attachment is made for recovery of sum of Rupees One lakh and the property value is more than One crore, it cannot be said that entire property cannot be dealt. Such case sale is void only against claim of Rupees One lakh and its interest and not in entirety., These issues have been thoroughly deliberated and elaborately discussed in Ramayee's case, which has also been affirmed by the Supreme Court of India, the Supreme Court of India is of the view that the effect of the first proviso is to set at naught the above declaration of law by the Supreme Court and the Division Bench and it nullifies the several provisions of the Transfer of Property Act, as stated above. The authorities under the Registration Act have no jurisdiction to make rules which have the direct and immediate effect of restraining transactions which are permitted under the Transfer of Property Act. Such a restriction would be clearly illegal and violative of a citizen's right to deal with his property and would clearly infringe Article 300-A of the Constitution. It does not bear repetition that Article 300-A has now been recognised as a human right [Vidya Devi v State of Himachal Pradesh, 2020 2 Supreme Court Cases 569]., In State of Rajasthan v. Basant Nahata, (2005) 12 Supreme Court Cases 77, which was also a case concerning the provisions of the Registration Act, the Supreme Court of India held that a subordinate legislation under the said Act which is not backed up by any statutory guideline under the substantive law and opposed to the enforcement of a legal right, was invalid. In this case also, Rule 55-A being a subordinate legislation does not have any statutory guideline (for instance like the transactions mentioned in Section 22-A & B) and is opposed to the enforcement of substantive legal rights under the Transfer of Property Act. The first proviso is, therefore, invalid as it goes beyond the powers conferred on the Inspector General of Registration and is clearly ultra vires and unconstitutional to the Parent Act as well as the substantive provisions of the Transfer of Property Act., Similarly, the second proviso requires the executant to produce a revenue record to show his right over the subject property where the property is ancestral in character and there is no original deed available. Even a tax receipt can be produced under this proviso which is opposed to the fundamental principle of law that revenue records are not documents of title [State of A.P. v Star Bone Mill and Fertilizer Company, 2013 9 Supreme Court Cases 319]. Production of revenue documents to verify the source of title only demonstrates complete ignorance of the settled position of law., Similarly, the third proviso also defies logic. If the original is lost, it is not understood as to why a certified copy of that document obtained from the file of the concerned Sub-Registrar Office cannot be produced. When the best evidence is not available, the best course is to produce a certified copy which is the next best available alternative. Instead, the third proviso requires the executant to obtain a non‑traceable certificate and effect paper publication., It is also well settled by the decision of the Supreme Court of India in J.K. Industries Ltd. v. Union of India, (2007) 13 Supreme Court Cases 673 that a subordinate legislation may be struck down as arbitrary or contrary to statute if it fails to take into account vital facts which expressly or by necessary implication are required to be taken into account by the statute or the Constitution. Furthermore, Rule 55-A is a delegated legislation which cannot go beyond the scope of the Parent Act viz., the Registration Act as well as the Transfer of Property Act which is the substantive law governing the transfer of immovable properties. Hence, the first proviso is clearly ultra vires and unconstitutional., In the case at hand, provisional attachment was passed by the Goods and Services Tax authorities. The registration of the Sale Certificate was rejected for this reason. It is relevant to note that the petitioner was a prior mortgagee in the year 2017, whereas the provisional attachment was passed by the Goods and Services Tax authorities on 18 December 2021. This order has already lapsed by operation of law. In this regard, it is useful to extract Section 83 of the Central Goods and Services Tax Act, 2017 which reads as follows: “Section 83. Provisional attachment to protect revenue in certain cases: (i) Where during the pendency of any proceedings under section 62 or section 63 or section 64 or section 67 or section 73 or section 74, the Commissioner is of the opinion that for the purpose of protecting the interest of the Government revenue, it is necessary so to do, he may, by order in writing attach provisionally any property, including bank account, belonging to the taxable person in such manner as may be prescribed. (ii) Every such provisional attachment shall cease to have effect after the expiry of a period of one year from the date of the order made under subsection (i).”, In view of the above, as the Supreme Court of India has held that the first proviso to Rule 55-A has been found to be invalid and ultra vires, the respondent cannot refuse to register the document placing reliance on the aforesaid proviso., Section 83(2) of the Goods and Services Tax Rules makes it clear that every such provisional attachment shall cease to have effect after the expiry of a period of one year from the date of the order made under sub‑section (i). Therefore, provisional attachment made by the second respondent vide order dated 18 December 2021 has ceased to have effect after expiry of a period of one year. There is no material to show any final order of attachment, or any subsequent order passed by the second respondent pursuant to the aforesaid order. Therefore, the Supreme Court of India is of the view that the impugned order dated 17 October 2022 is liable to be quashed., In view of the foregoing reasons, the respondent cannot refuse to register the Sale Certificate as sought for by the petitioner. Consequently, the impugned order in Na. Ka.No.538/2022 dated 17 October 2022 is quashed. The first respondent is directed to register the Sale Certificate within a period of fifteen days from the date of receipt of copy of the order., With the above directions, the writ petition is allowed. No costs. 08 February 2023 Neutral Citation: Yes Speaking/Non Speaking order Index: Yes/No vaan/ggs To 1 The Sub Registrar, Office of Sub Registrar, Pollachi, No.104, Taluk Office Campus, Coimbatore Road, Pollachi-642001. 2 The Principal Commissioner of Goods and Services Tax and Central Excise, Headquarters, Preventive Unit, 6/7A.T.D. Street, Race Course Road, Coimbatore-641018. 3 The Inspector General of Registration, 100, Santhome High Road, Mullima Nagar, Mandavelipakkam, Chennai 600028.
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Judgment pronounced on 22 November 2023. Through Senior Advocate Maninder Singh and Senior Advocate Rajshekhar Rao, along with Advocates Bani Dikshit, Uddhav Khanna, Krishan Kumar, Rohan Jaitley, Arkraj Kumar, Rishab Aggarwal, Tanya Aggarwal, Ashita Chawla and Ajay Sabharwal, for the plaintiff. Through Advocates Sarim Naved and Harsh Kumar for defendants 1 and 2. Advocates Neel Mason, Vihan Dang, Aditi Umapathy and Pragya Jain for defendant 4. Interim Application No. 22961 of 2023 filed under Under Order XXXIX Rule 1 and 2 read with Section 151 of the Code of Civil Procedure., The plaintiff, a highly reputed civil servant serving as Chief Secretary of the Government of the National Capital Territory of Delhi since 21 April 2023, has filed a suit seeking a permanent injunction, damages and compensation against defendants 1 and 2 on account of defamation., The plaintiff alleges that defendants 1 and 2 made, published and circulated the article titled 'Links of Son of Delhi Chief Secretary to Beneficiary’s Family in Land Over‑Valuation Case Raise Questions' dated 09 November 2023, available at https://thewire.in/government/delhi-chief-secretary-nhai-land-compensation, containing libellous allegations and insinuations that are false, malicious, motivated, unfounded and deliberately intended to harm the plaintiff’s dignity and reputation. Defendant 2, the correspondent of defendant 1 and author of the article, hosted the false insinuations on the website https://thewire.in/, while defendant 1 further circulated them on various social media platforms such as Twitter, Google and other media outlets to defame the plaintiff., Defendant 1, The Wire, is a media organization with its registered office at the address mentioned in the plaint and comes under the jurisdiction of the Delhi High Court. Defendant 2 is the correspondent of The Wire who writes for it. Defendant 3, X Corp (formerly Twitter), is a social media platform wherein the alleged defamatory content was published and circulated by defendants 1 and 2, including the link to the impugned article. Defendant 4, Google LLC, is a search engine wherein the link to the impugned article appears., The impugned article, filed as Document No. 1 along with the plaint, concerns the quantum of compensation paid for acquisition of certain land for construction activities related to the Dwarka Expressway of the National Highways Authority of India. The article claims that the compensation for the acquired land was enhanced to Rs 353 crores from the previously determined compensation of Rs 41.52 crores by the District Magistrate (South‑West Delhi). For the purposes of the present suit, it is relevant that the article seeks to link the plaintiff with the said enhancement of compensation., The article suggests that (i) the enhancement of compensation was linked to the plaintiff’s handling of the matter; (ii) the beneficiary of the enhanced compensation was the father‑in‑law of the promoter of another realty firm with which the plaintiff’s son has business or employment links; (iii) the plaintiff may have a conflict of interest in the matter; and (iv) the departmental action sought against the delinquent officer who passed the arbitral award should have been placed before the National Capital Civil Service Authority, but was allegedly not., Senior Counsel for the plaintiff and counsel for defendants 1 and 2 were heard on the aspect of granting an ad interim injunction. The plaintiff’s senior counsel contended that defendants 1 and 2 launched a personal attack on the plaintiff with an oblique motive to malign, defame and injure his reputation through a series of blatant falsehoods and gross misrepresentations. He argued that the plaintiff’s well‑earned reputation cannot be allowed to be eroded and that the defendants ought not to be permitted to disseminate falsehoods without proper due diligence, acting only to achieve cheap publicity while serving the agenda of persons or political groups hostile to the plaintiff. He submitted that a decorated public officer cannot be used as bait for publicity and defamation in the name of free speech and journalism, and that further irreparable damage will be caused to the plaintiff unless injunctive orders are passed against the defendants., Counsel for defendants 1 and 2 sought to controvert the plaintiff’s contentions, asserting that the impugned article does not contain any defamatory imputation. He placed reliance upon a Preliminary Report submitted to the Chief Minister of Delhi on 14 November 2023 by Ms Atishi, Minister of Vigilance and Revenue, Government of NCT of Delhi, as a justification for the contents of the article, and requested time to reply to the present application., Having carefully perused the article dated 09 November 2023, the Delhi High Court finds merit in the plaintiff’s senior counsel’s contentions that the impugned article contains defamatory and libellous allegations and insinuations made recklessly without regard to the truth, intended to injure the plaintiff’s reputation., The article proceeds on the basis that the enhanced compensation for the land acquired for the Dwarka Expressway was linked to the plaintiff’s handling of the matter. This is completely misconceived, as the enhancement was pursuant to an arbitral award dated 15 May 2023 rendered under Section 3G of the National Highways Act, 1956 by another Indian Administrative Service officer in his capacity as arbitrator. The plaintiff could not have interfered with the quasi‑judicial functions entrusted to that officer., The article further suggests that the plaintiff may have a potential conflict of interest. This insinuation is also misconceived, because the enhancement of compensation was the outcome of arbitration proceedings in which the plaintiff was not involved. Moreover, the arbitral award dated 15 May 2023, which stated that compensation was excessively enhanced to Rs 353 crores, was the subject of a petition under Section 34 of the Arbitration and Conciliation Act, 1996. This petition was allowed by this Court in order‑memo (COMM) 388 of 2023, and the award was set aside by the Court on 31 October 2023. Consequently, the issue of enhancement of compensation did not survive., It was only after the award dated 15 May 2023 that the plaintiff participated in the decision‑making process for taking disciplinary action against the officer who passed the arbitral award. Paragraph 33.15 of the plaint states that on 20 September 2023, in a National Capital Civil Service Authority meeting chaired by the Hon’ble Chief Minister of Delhi, it was proposed to transfer the delinquent officer as Special Secretary (Administrative Reforms). The plaintiff informed the Chief Minister about serious financial irregularities committed by the officer in the land acquisition matter, after which the Authority agreed to recommend the officer’s transfer. The minutes of this meeting are filed as Document No. 12., The impugned article, however, states that if the District Magistrate’s decision to raise compensation was suspect, the matter should have gone to the National Capital Civil Service Authority headed by Chief Minister Arvind Kejriwal. The Court finds that, contrary to the article’s suggestion, the matter concerning the proposed transfer of the delinquent officer was indeed placed before the Authority., The fact that the plaintiff was involved in the decision to transfer the delinquent officer after the arbitral award cannot be said to involve any impropriety or conflict of interest; rather, it demonstrates departmental resolve to take action against the officer. The alleged nexus between the beneficiary of the arbitral award and the plaintiff’s son is far‑fetched and contrary to what is projected in the article’s title., In any event, as already stated, the arbitral award was an outcome of arbitration proceedings under a statutory framework, was set aside by this Court, and therefore the impugned article is a litany of misrepresentations and convoluted insinuations made recklessly with a view to damage the plaintiff’s reputation., The Court notes the observations in Institute of Chartered Accountants of India v. L.K. Ratna, (1986) 4 SCC 537, where the Supreme Court emphasized that loss of reputation can cause irreparable injury that cannot be fully remedied by subsequent appellate relief., The Court also refers to Lakshmi Murdeshwar Puri v. Saket Gokhale, (2021) 3 HCC (Del) 23, which held that reputation, nurtured over years of selfless service, can crumble in an instant and that Article 21 of the Constitution infuses the reputation of the individual., In Vinai Kumar Saxena v. Aam Aadmi Party, (2022) 5 HCC (Del) 662, the Court rejected the defendants’ contention that damages alone are an adequate remedy in defamation cases, holding that where statements are unsubstantiated and made recklessly, an interim injunction is justified to prevent further injury to reputation., The Court further cites Hanuman Beniwal v. Vinay Mishra, 2022 SCC OnLine Del 4882, which enumerated the conditions for granting an interim injunction in libel and slander cases: the statement must be unarguably defamatory, there must be no basis to conclude it is true, no other defence is likely to succeed, and there is evidence of an intention to repeat or publish the defamatory statement., The Court summarises the principles relating to the right to privacy under Article 21, noting that publication of private matters without consent violates privacy, except where the matter is a matter of public record. It observes that public officials do not enjoy a right to privacy concerning acts performed in the discharge of official duties, and that false publications made with malice render the publisher liable for damages., The Court also refers to Subramanian Swamy v. Union of India, (2016) 7 SCC 221, observing that reputation is an inherent component of Article 21 and cannot be sullyed solely on the ground of free speech, and that the legislature has not abolished criminal defamation., Considering all the above, the Delhi High Court finds merit in the plaintiff’s senior counsel’s contentions that grave and irreparable damage will be caused to the plaintiff if ad‑interim injunctive orders are not passed. The Court notes that the impugned article and the offending social media posts, if allowed to circulate during the pendency of this application, would cause prejudice that cannot be fully remedied later., The Court therefore passes the following ad‑interim directions: (i) defendants 1 and 2 are directed to remove and take down the impugned article titled 'Links of Son of Delhi Chief Secretary to Beneficiary’s Family in Land Over‑Valuation Case Raise Questions' dated 09 November 2023, available at https://thewire.in/government/delhi-chief-secretary-nhai-land-compensation; (ii) defendants 1 and 2 are directed to remove the tweets/posts circulated on defendant 3, available at https://twitter.com/thewire/status/1722624013942636890 and https://twitter.com/meetujain/status/1722921620522860765, images of which are filed as Documents 4 and 5; (iii) defendants 1 and 2 are further directed not to post, circulate or publish any similar defamatory content against the plaintiff as set out in the impugned article., In the event that defendants 1 and 2 fail to comply with the aforesaid directions within 48 hours of the pronouncement of this judgment, defendant 3 is directed to take down the tweets/posts filed as Documents 4 and 5, and defendant 4 is directed to remove the search result and/or de‑index the web link of the article dated 09 November 2023., The defendants must file a compliance affidavit under Order XXXIX Rule 3 of the Code of Civil Procedure, 1908, within one week. Reply to the application must be filed by the defendants within four weeks from today, with any rejoinder filed within two weeks thereafter. The matter is listed before the concerned Joint Registrar (Judicial) on 21 December 2023 and before the Delhi High Court on 14 March 2024. All observations in this order are based on a prima facie consideration and are subject to further orders in this interim application and in the suit.
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Criminal Appeal (Special) No. 16/2021 Criminal Miscellaneous No. 2120/2021 Reserved on: 24.05.2022 Pronounced on: 30.05.2022 Rajesh Kumar Abrol, Applicant/Appellant, through Shri P. N. Raina, Senior Advocate with Shri J. A. Hamal, Advocate, Union Territory of Jammu and Kashmir. Respondent(s) through Shri Amit Gupta, Additional Advocate General. Coram: 30.05.2022 Criminal Miscellaneous No. 2120/2021., The instant Criminal Appeal under Section 37 of the Criminal Procedure Code is directed against the judgment of conviction dated 21.10.2021 and the order of sentence dated 23.10.2021 rendered by the Presiding Officer, Fast Track Court, Jammu in file No. 28/FTC titled State v. Rajesh Abrol, where the appellant/convict has been found guilty of offences under sections 420 and 376(2)(K) of the Indian Penal Code. He was sentenced to undergo rigorous imprisonment for ten years and a fine of Rs 50,000 for the offence under section 376(2)(K) IPC, and also to simple imprisonment for seven years and a fine of Rs 20,000 for the offence under section 420 IPC. In default of payment of the fine, the appellant/convict has been directed to undergo further imprisonment for a period of three months for each offence., Feeling aggrieved by the impugned judgment of conviction, the appellant/convict has assailed its correctness, propriety and legality on the grounds that, as a result of misappreciation of facts and misapplication of law, the finding of the trial court holding the appellant guilty of committing offences under sections 420 and 376(2)(K) of the Indian Penal Code is contrary to law. Accordingly, the appellant prays that the present appeal be allowed and the judgment of the Presiding Officer, Fast Track Court, Jammu be set aside., Along with the appeal, the appellant/convict has filed an application for suspension of conviction and sentence pending the hearing of the appeal, with a further prayer for his release on bail, primarily on the ground that there is no likelihood of the appeal being heard in the near future. In view of the law laid down by the Hon'ble Supreme Court, which holds that when a convicted person is sentenced to a fixed period of sentence, suspension of sentence should be considered liberally unless there are exceptional circumstances, the appellant contends that the impugned judgment of conviction and order of sentence are the result of complete misappreciation of evidence and are bereft of any evidentiary support or sanction of law, and therefore should be set aside. He further submits that the fact that he was a judicial officer does not alter the principle that the trial court must appreciate the prosecution case on the basis that the accused is presumed innocent until proven guilty by trustworthy, reliable, and legal evidence. The prosecution had not proved the charges against the appellant; the charge sheet dated 09.06.2018 does not indicate that the appellant was tried for the offence under section 376(2)(K) IPC, while the investigating officer had stated that, as per his investigation, the alleged offence under section 376(5) IPC was proved against the accused. Consequently, the appellant pleads that he has been convicted of an offence for which he was not tried and which is distinct from the offence for which he was charged. The appellant further points out that the prosecution evidence shows that he was suffering from blood cancer, was hospitalized and receiving chemotherapy, and that the prosecutrix became his caretaker; a cancer patient receiving chemotherapy is medically dependent on the caretaker, not vice versa., The respondent has filed objections stating that the appellant is the main accused in FIR No. 06/2018 for the commission of offences under sections 420 and 376 of the Indian Penal Code, registered at Police Station Janipur, Jammu. After the completion of investigation, a challan was presented against the appellant/accused and the Presiding Officer, Fast Track Court, Jammu, vide its judgment/order dated 23.10.2021, framed charges against the accused. The prosecution led evidence to prove the guilt of the accused beyond any doubt, convicting the appellant for the aforementioned offences. It has been established by the court below that the appellant/accused has ruined the life of the prosecutrix on the pretext of marriage and providing better education to her minor daughter; therefore, the accused does not deserve any lenient view and is liable for extreme punishment for the commission of offences under sections 420 and 376(2)(K) of the Indian Penal Code, along with a fine. The offences for which the appellant is charged are of a heinous nature and constitute a separate class, requiring a different approach in matters of bail. There is a likelihood of the accused misusing liberty if granted bail and fleeing, considering the gravity of the offence; consequently, the appellant is not entitled to bail or suspension of sentence., Shri P. N. Raina, learned Senior Advocate for the appellant/convict, in support of the application for suspension of his conviction and release on bail, has argued that the prayer for suspension of sentence and ordering the appellant/convict on bail should be considered liberally unless there is any statutory restriction. He contended that when the sentence is life imprisonment, the consideration for suspension should adopt a different approach, and when the appellate court finds that, due to practical reasons, the appeal cannot be disposed of expeditiously, the appellate court must give special consideration to suspending the sentence so as to make the appeal meaningful and effective. However, if for any reason a sentence of limited duration cannot be suspended, every endeavour should be made to dispose of the appeal on its merits. He further argued that, by the judgment and order of this court in Vajida Bano and Others v. State (Criminal Appeal (Special) No. 05/2019, Criminal Miscellaneous No. 853/2019), it is manifest that even a sentence of ten years rigorous imprisonment was suspended against accused persons found guilty of offences under sections 364, 120‑B and 201 of the Indian Penal Code. To support his arguments, the learned counsel relied upon the judgments reported in (i) (1999) 4 Supreme Court Cases 421 (Bhagwan Rama Shinde Gosai and Others v. State of Gujarat) and (ii) the judgment/order of the Jammu and Kashmir High Court rendered in Criminal Appeal (Special) No. 05/2019, Criminal Miscellaneous No. 853/2019 (Vajida Bano and Others v. State)., Shri Amit Gupta, learned Additional Advocate General, per contra, has articulated that the appellant is the main accused in FIR No. 06/2018 for the commission of offences under sections 420 and 376 of the Indian Penal Code, registered at Police Station Janipur, Jammu, and that the court below has established that the appellant/accused has ruined the life of the prosecutrix on the pretext of marriage and providing better education to her minor daughter. Therefore, the accused does not deserve any lenient view and is liable for extreme punishment for the commission of offences under sections 420 and 376(2)(K) of the Indian Penal Code, along with a fine. He argued that the offences for which the appellant is charged are of a heinous nature and constitute a separate class, requiring a different approach in matters of bail. There is a likelihood that the accused may misuse liberty if granted bail and flee, considering the gravity of the offence; consequently, detention is necessary to ensure the accused’s attendance in court. Moreover, no case for suspension of sentence is made out, as the appellant’s case is not covered by the Supreme Court judgments because he has not been in prison for half of his sentence; therefore, the appellant is not entitled to bail or suspension of sentence., Heard and considered. Section 389 of the Code of Criminal Procedure deals with the provisions of suspension of sentence pending the appeal. For convenience, Section 389 CrPC is reproduced below:\n\n389. Suspension of sentence pending the appeal; release of appellant on bail.\n\n(1) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond: [Provided that the Appellate Court shall, before releasing on bail or on his own bond a convicted person who is convicted of an offence punishable with death or imprisonment for life or imprisonment for a term of not less than ten years, shall give opportunity to the Public Prosecutor for showing cause in writing against such release: Provided further that in cases where a convicted person is released on bail it shall be open to the Public Prosecutor to file an application for the cancellation of the bail.]\n\n(2) The power conferred by this section on an Appellate Court may be exercised also by the High Court in the case of an appeal by a convicted person to a Court subordinate thereto.\n\n(3) Where the convicted person satisfies the Court by which he is convicted that he intends to present an appeal, the Court shall, (i) where such person, being on bail, is sentenced to imprisonment for a term not exceeding three years, or (ii) where the offence of which such person has been convicted is a bailable one, and he is on bail, order that the convicted person be released on bail, unless there are special reasons for refusing bail, for such period as will afford sufficient time to present the appeal and obtain the orders of Appellate Court under Sub‑Section (1); and the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended.\n\n(4) When the appellant is ultimately sentenced to imprisonment for a term or to imprisonment for life, the time during which he is so released shall be excluded in computing the term for which he is so sentenced., A cursory glance of Section 389 of the Criminal Procedure Code makes the legal proposition clear: when an appeal is preferred by a convicted person, notice is required to be issued to the Public Prosecutor/State only if the convict is punished for an offence punishable with death, imprisonment for life, or imprisonment for a term not less than ten years. If the convict is sentenced to imprisonment for a term less than ten years, no notice to the Public Prosecutor/State is required in respect of an application for suspension of sentence and release on bail. The Supreme Court, in cases reported in (1999) 4 Supreme Court Cases 421, while discussing the power and scope of Section 389 of the Criminal Procedure Code regarding suspension of sentence pending an appeal, held that the prayer for suspension of sentence should be considered liberally unless there is any statutory restriction. The Court further observed that when a convicted person is sentenced to a fixed period of sentence and files an appeal, suspension of sentence can be considered liberally unless there are exceptional circumstances. If there is a statutory restriction, the approach differs. Similarly, when the sentence is life imprisonment, the consideration for suspension may be different. However, if for any reason a sentence of limited duration cannot be suspended, every endeavour should be made to dispose of the appeal on its merits, especially when a motion for expeditious hearing of the appeal is made. Otherwise, the valuable right of appeal would become futile due to the passage of time., In this case, as the Jammu and Kashmir High Court was not inclined to hear the appeal expeditiously, we are of the view that the sentence passed on the appellant can be suspended on certain stringent conditions. Accordingly, we suspend the sentence and direct the appellant to be released on bail upon executing a bond to the satisfaction of the Additional Sessions Judge, Nadiad. The appellant is directed to report to Kapadwang Police Station on all Mondays and Thursdays between 4.00 p.m. and 6.00 p.m. until the disposal of the appeal pending before the High Court. The ratio of the judgment (supra) makes it manifest that Section 389 of the Criminal Procedure Code does not contain any statutory restriction on suspension of sentence and granting of bail to the accused, and the prayer should be considered liberally, with the appellate court imposing restrictions considering the gravity of the offence. Similarly, in the case of Vajida Bano and Others v. State, also relied upon by learned counsel for the appellant, this Court, while relying upon the judgment of Bhagwan Rama Shinde Gosai (supra), suspended the sentence of appellants convicted in FIR 09/2014 for the commission of offences under sections 363, 317, 302, 120‑B and 201 of the Indian Penal Code of Police Station Kargil., In the present case, the appellant/convict has been found guilty by the Presiding Officer of the Fast Track Court, Jammu, for the commission of offences under sections 420 and 376(2)(K) of the Indian Penal Code. He was sentenced to undergo rigorous imprisonment for ten years and a fine of Rs 50,000 under section 376(2) IPC, and simple imprisonment for seven years and a fine of Rs 20,000 under section 420 IPC. In default of payment of the fine, the appellant/convict has been directed to undergo further imprisonment for a period of three months for each offence. By the ratio of the judgment in Bhagwan Rama Shinde Gosai and Others (1999) 4 Supreme Court Cases 421 (supra), relied upon by learned counsel for the appellant, there is no statutory restriction on considering an application for suspension of sentence and release on bail. The appellant, a resident of Lower Roop Nagar, Jammu, was a judicial officer and has deep roots in society; therefore, there is no apprehension that he will abscond if his sentence is suspended and he is released on bail. The prosecution has not produced any substantial material indicating that the appellant absconded during the trial or is likely to do so during the bail period. The seriousness or gravity of an offence is to be assessed in cases where the accused is punished with death, life imprisonment, or imprisonment of more than ten years, and while considering an application for suspension and bail, judicial discretion lies with the court. The right to life and liberty of an individual is precious under Article 21 of the Constitution of India and continues during the appeal period, as the appeal is a continuation of the trial. The trial court record shows that the appellant was registered/admitted vide MRD/OPD/RT No. 173‑2014 dated 30.01.2014 as a case of Hodgkin's disease (blood cancer) in Government Medical College, Jammu., The record further indicates that from the date of the appellant's arrest on 23.01.2018, for more than four years and four months, the appellant has been in detention and is presently lodged in Central Jail Kot Bhalwal, Jammu. It is appropriate to note that the right of an under‑trial prisoner to life does not diminish while in jail, and the state must attend to the health concerns of such persons, failing which the judiciary must intervene. The right to dignity of an accused does not cease with the judge's ink; it persists beyond the prison gates and endures until the last breath. The most precious fundamental right to life unconditionally embraces even an under‑trial. Owing to the appellant's precarious health condition, as he suffers from Hodgkin's disease (blood cancer), it is necessary that he receive adequate and effective medical treatment. Every person accused of an offence requires humane treatment by prison authorities; humane treatment of all, including accused/convicts, is a requirement of law. Furthermore, a prisoner who is suffering from an ailment must be given due treatment and care while in prison. The respondent Union Territory has not pointed out any incident of mis‑demeanor, misbehaviour, or commission of any offence by the appellant while he is serving his jail term. In view of the foregoing and considering the totality of the facts and circumstances, this court is persuaded to suspend the sentence of the appellant/convict on both merit and health grounds. The present application for suspension of sentence therefore succeeds. It is ordered that the substantive sentence passed by the trial court vide judgment dated 21.10.2021 in Sessions case file No. 28/FTC titled State v. Rajesh Abrol against the appellant, Rajesh Kumar Abrol, son of Late Shri Isher Dass Abrol, resident of House No. 136, Sector 2, Lower Roop Nagar, Jammu, shall remain suspended till final disposal of the appeal, provided the appellant executes a personal bond of Rs 1,00,000 before the Superintendent, Central Jail Kot Bhalwal, Jammu, where he is presently serving his term, with two sureties of Rs 1,00,000 each to the satisfaction of the Registrar (Judicial) of this court. Further, the appellant shall appear before this Court on every date of hearing, except for reasons beyond his control and unless exempted by the Court.
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Judgment delivered on 01 September 2023. Counsel for the petitioner: Mr. Pramod Kumar Dubey, Senior Advocate, assisted by Mr. Amit Sinha, Mr. Manoj Kumar Singh, Ms. Aditi, Mr. Satyam Sharma and Mr. Saurav Kumar Sohi, Advocates. Counsel for the State: Ms. Richa Dhawan, Assistant Public Prosecutor., The present application has been filed under Section 439 of the Code of Criminal Procedure read with Section 482 of the Code of Criminal Procedure seeking regular bail in FIR No. 201/2016 registered at Police Station EOW under Sections 409, 406, 420 and 120B of the Indian Penal Code., It is not in dispute that the charge sheet in this case was filed under Sections 406, 409, 420 and 120B of the Indian Penal Code, but the charges have been framed only under Sections 420 and 120B of the Indian Penal Code., The aforesaid FIR was registered on the complaint of Sh. Anubhav Jain who bought 26 flats in Tower G‑1 of the petitioner’s companies project Amrapali Silicon City proposed to be developed at Plot No. GH‑1A, Sector‑76, Noida. During the investigation it was found that Tower G‑1 in the project was never sanctioned by the Noida Authority and, in furtherance of a criminal conspiracy, the petitioner sold or allotted 26 flats to the complainant in the said tower. Induced by the accused persons, the complainant agreed to invest in the project and made full and final payment of Rs 6.60 crore for the flats in November 2011., Subsequently, on 28 February 2019, the petitioner along with two co‑accused, Shiv Priya and Ajay Kumar, were arrested in the present case., The learned Senior Counsel for the petitioner submits that the maximum sentence for the offence under Section 420 of the Indian Penal Code is seven years, whereas the petitioner has been in custody for more than three years and six months., He submits that, in view of the mandatory provisions of Section 436A of the Code of Criminal Procedure, the petitioner is entitled to statutory bail after having undergone detention for more than one‑half of the maximum period of imprisonment specified for the offence under Section 420 of the Indian Penal Code., He further submits that the prosecution has cited as many as 50 witnesses and the trial is likely to take a long time. He therefore urges the High Court to grant regular bail to the petitioner., The learned Assistant Public Prosecutor argues that this is a multi‑victim scam and, therefore, the benefit of Section 436A should not be extended to the petitioner in view of the first proviso to Section 436A of the Code of Criminal Procedure. She urges dismissal of the petitioner’s bail application., I have heard the learned Senior Counsel for the petitioner as well as the learned Assistant Public Prosecutor for the State and have perused the record., The learned Trial Court, by order dated 17 November 2022, concluded that the petitioner and other co‑accused are liable to be prosecuted for the offence punishable under Section 420 of the Indian Penal Code read with Section 120B of the Indian Penal Code. The maximum punishment for the offence under Section 420 of the Indian Penal Code is imprisonment for a term which may extend to seven years and fine., Undisputedly, the petitioner has undergone detention for a period in excess of one‑half of the maximum period of imprisonment specified for the offence under Section 420 of the Indian Penal Code., Section 436A of the Code of Criminal Procedure provides: 'Maximum period for which an under‑trial prisoner can be detained. Where a person has, during the period of investigation, inquiry or trial under this Code, of an offence (not being an offence for which the punishment of death has been specified) undergone detention for a period extending up to one‑half of the maximum period of imprisonment specified for that offence, he shall be released by the Court on his personal bond with or without sureties, provided that the Court may, after hearing the Public Prosecutor and for reasons recorded in writing, order continued detention for a period longer than one‑half of the said period or release him on bail instead of the personal bond. Further, no such person shall be detained during the period of investigation, inquiry or trial for more than the maximum period of imprisonment provided for the offence. Explanation: In computing the period of detention for granting bail, the period of detention caused by delay attributable to the accused shall be excluded.', In this factual matrix, the question arises whether the petitioner, having undergone detention for a period extending up to one‑half of the maximum period of imprisonment specified for the alleged offence, is entitled to be released on bail., The answer is clear. The Honorable Supreme Court in Satender Kumar Antil v. Central Bureau of Investigation (2022) 10 SCC 51, while construing Section 436A of the Code of Criminal Procedure, observed that the provision is mandatory and there is no need for a bail application. With reference to the first proviso, the Court held that the Court may order continuation of detention for a period longer than one‑half of the maximum period after hearing the Assistant Public Prosecutor and recording reasons in writing, but such power is to be exercised sparingly as an exception to the general rule. The Supreme Court reiterated that bail is the rule and jail is an exception., The relevant part of the decision reads: 'Under this provision, when a person has undergone detention for a period extending to one‑half of the maximum period of imprisonment specified for that offence, he shall be released by the Court on his personal bond with or without sureties. The word shall clearly denotes mandatory compliance. There is not even a need for a bail application where the reasons for delay are not attributable to the accused. The Court may, after hearing the Public Prosecutor, order continued detention longer than one‑half of the period, but this is an exception. Bail is the rule and jail is an exception, coupled with the presumption of innocence. The provision is substantive, facilitating liberty under Article 21, with the only caveat that delay caused by the accused is excluded.', The Supreme Court in Bhim Singh v. Union of India (2015) 13 SCC 605, while dealing with Section 436A, directed that jurisdictional Magistrates, Chief Judicial Magistrates or Sessions Judges shall hold weekly sittings in each jail for two months commencing 1‑10‑2014 to identify under‑trial prisoners who have completed half of the maximum period of imprisonment and, after complying with the procedure prescribed under Section 436A, pass appropriate orders for their release. Reports of such sittings shall be submitted to the Registrar General of the High Court and then to the Secretary General of the Supreme Court. Jail Superintendents shall provide necessary facilities for holding these sittings., The Court emphasized that non‑compliance with these directions would defeat the principle of presumption of innocence until proven guilty., In Vijay Madanlal Choudhary v. Union of India (2022) SCC OnLine SC 929, the Supreme Court, considering the application of Section 436A to a case under the Prevention of Money‑Laundering Act, observed that Section 436A is an exception to the strict compliance of the twin conditions under Section 45 of the PMLA and must be construed as a statutory bail provision akin to Section 167 of the Code of Criminal Procedure., The Court noted that Section 436A, inserted on 23 June 2006 by Act 25 of 2005, provides that an under‑trial prisoner, other than one accused of an offence punishable by death, who has been detained for a period extending to one‑half of the maximum period of imprisonment, should be released on personal bond with or without sureties, and shall not be detained beyond the maximum period., In Hussainara Khatoon v. Home Secretary, State of Bihar (1980) 1 SCC 108, the Court held that the right to a speedy trial is a facet of Article 21 and a fundamental right. Parliament inserted Section 436A to remedy the plight of under‑trial prisoners detained beyond the maximum period., In Supreme Court Legal Aid Committee Representing Under‑trial Prisoners v. Union of India (1994) 6 SCC 731, the Court directed release of prisoners charged under the Narcotic Drugs and Psychotropic Substances Act after completion of one‑half of the maximum term, notwithstanding the non‑obstante provision of Section 37 of the NDPS Act, and emphasized that bail is an essential component of the right to speedy trial under Article 21., The Union of India, in its written submissions, recognized the right to speedy trial and access to justice as fundamental rights and submitted that, in limited situations, bail may be granted where Article 21 is violated. It was noted that Section 436A of the 1973 Code was inserted after the 2002 Act and therefore should not be denied relief to a person accused under the 2002 Act, although Section 436A does not create an absolute right of bail where the trial delay is caused by the accused., The Court held that Section 436A is comparable to the statutory bail provision under Section 167 of the Code of Criminal Procedure, which is triggered when the investigating agency defaults in filing the charge sheet within the statutory period. Section 436A recognizes the constitutional right to speedy trial under Article 21 and provides relief when the trial cannot proceed even after the accused has undergone one‑half of the maximum period of imprisonment., The learned Solicitor General argued that extending Section 436A over Section 45 of the 2002 Act would affect the objectives of the Act and could be invoked for other serious offences, including terrorist offences. The Court was not persuaded, stating that the State has a constitutional obligation to ensure expeditious trials, and detaining a person beyond one‑half of the maximum period without trial is a failure of the State., Section 436A is a beneficial provision to effectuate the right to speedy trial guaranteed by Article 21. While it is not mechanical and remains within the Court’s discretion, the proviso allows continued detention beyond one‑half of the period only with recorded reasons and appropriate conditions to ensure the accused’s presence for trial., The provision does not apply to persons facing offences punishable with death., In view of the Supreme Court’s jurisprudence and the fact that the petitioner has already undergone one‑half of the maximum period of imprisonment for the offence under Section 420 of the Indian Penal Code, the petitioner is entitled to the benefit of Section 436A of the Code of Criminal Procedure, which is a mandatory provision., The allegations against the petitioner are serious but do not warrant invoking the first proviso to Section 436A to continue detention beyond one‑half of the maximum period, as the prosecution has not shown that the petitioner is responsible for the trial delay., Reference may be made to Vinod Bhandari v. State of Madhya Pradesh (2015) 11 SCC 502., It is well settled that at the pre‑conviction stage there is a presumption of innocence. Custody is intended to ensure the accused’s availability for trial, not as punishment or prevention. Seriousness of the allegation and material evidence are not the sole considerations for denying bail. Delay in commencement and conclusion of trial is a factor, and the accused cannot be kept in custody indefinitely if the trial is unlikely to conclude within a reasonable time. Decisions of this Court in Kalyan Chandra Sarkar v. Rajesh Ranjan (2005) 2 SCC 42, State of U.P. v. Amarmani Tripathi (2005) 8 SCC 21, State of Kerala v. Raneef (2011) 1 SCC 784 and Sanjay Chandra v. CBI (2012) 1 SCC 40 support this principle. The charge sheet cites as many as 50 witnesses, indicating a protracted trial; therefore, continued judicial custody serves no useful purpose., In view of the foregoing discussion, the petitioner has made out a case for grant of regular bail. Accordingly, the petitioner is admitted to bail subject to furnishing a personal bond of Rs 1 lakh and two surety bonds of the same amount, subject to satisfaction of the learned Trial Court/Chief Metropolitan Magistrate/Duty Magistrate, and the following conditions: (a) The appellant/applicant will not leave the city without prior permission of the Court. (b) The appellant/applicant shall appear before the Court whenever the matter is taken up for hearing. (c) The appellant/applicant shall provide all mobile numbers to the Investigating Officer, keep them in working condition at all times, and shall not switch off or change the mobile number without prior intimation to the Investigating Officer; the mobile location must be kept on at all times. (d) The appellant/applicant shall not indulge in any criminal activity and shall not communicate with or contact the victim/complainant or any family members of the victim/complainant., A copy of the order shall be forwarded to the concerned Jail Superintendent for necessary compliance and information., The application stands disposed of.
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Criminal Report No. 80 of 2023 Shrimati Sujata Sunil Ghatvisave, Shrimati Sushila Tanhaji Ghatvisave, Shrimati Babita Keshav Bangera, Mr. Ravi Hari Shigwan, Mrs. Saraswati Lokre, Applicants versus Application for Bail No. 1484 of 2023, The State of Maharashtra (at the instance of Dadar Police Station, Criminal Report No. 80 of 2023) Respondent. Appearance: Mr. Rahul S. Arote, Learned Advocate for applicants. Mrs. Rashmi Tendulkar, Learned Additional Public Prosecutor. Dated: 13th July 2023., Applicants are some of the persons named in the FIR relating to Criminal Report No. 80 of 2023 registered with Dadar Police Station under Section 420, Section 406, Section 409 and Section 34 of the Indian Penal Code. They are apprehending arrest and therefore pray for protection under Section 438 of the Criminal Procedure Code. The prosecution, vide Exhibit 2, referring to facts alleged in the FIR and whatever has been revealed in the investigation, strongly opposed the application on the following grounds: the applicant Shrimati Sujata Ghatvisave is the wife of the main accused Sunil Ghatvisave and an amount of Rs. 14 lakh was diverted by the main accused into her bank account, which is yet to be recovered; huge amounts collected by the main accused Sunil Ghatvisave from various affected people, such as the informant, have been transferred into the bank accounts of other accused persons and it is yet to be investigated why such transfers were made; co‑accused Sunil Ranpise and Anil Bhosale have been absconding and have not been arrested. Accordingly, the application is contended to be rejected., Following points arise for my determination. I am recording the findings for the reasons discussed below: Whether the applicants have made out a strong prima‑facie case to grant protection under Section 438 of the Criminal Procedure Code? Yes. What order? As per final order. Mr. Dattaprasad Rajaram Bait, a Government Servant in the Public Works Department, lodged an FIR alleging that the main accused Sunil Ghatvisave has cheated him and twenty‑one others by giving false promises of making available homes in Century Mill Kamgar MHADA Vasahat. He further alleged that he has been residing in Prabhadevi, Dadar since childhood, and therefore wished to settle in that area and was in search of an ownership house. During such a search he came into contact with Sunil Ghatvisave, who claimed to have acquaintances in MHADA and could manage houses of mill workers for a reasonable price. Mr. Mane introduced the informant to Sunil Ghatvisave in January 2017, after which the informant expressed his desire. Sunil Ghatvisave told him that Building No. 2A, Room No. 1503 was available for sale in Century Mill MHADA Vasahat, quoted a price of Rs. 30 lakh and conditioned that half be paid in advance. A Memorandum of Understanding was executed on a Rs. 100 stamp paper and thereafter the informant issued cheques totaling Rs. 19 lakh. To collect the remaining Rs. 12 lakh, the informant sold his wife's gold ornaments for Rs. 2 lakh, obtained a loan of Rs. 4 lakh from his brother‑in‑law, Rs. 4 lakh from his father‑in‑law and Rs. 2 lakh from his own savings. Thus, during 2017‑2018, the informant paid Sunil Ghatvisave a total of Rs. 12 lakh at various places in Dadar and Prabhadevi. Similarly, Ajay Patil, an acquaintance of the informant, also paid Sunil Ghatvisave for himself and five to six other people for homes. Similar Memoranda of Understanding were executed in the names of those people who paid Sunil Ghatvisave through cheques. Sunil Ghatvisave then transferred those monies into various other accounts. Applicant No. 1, the wife of Sunil Ghatvisave, had Rs. 14 lakh transferred into her account, which were part of the monies collected by Sunil Ghatvisave from the informant and others., In Mumbai, everyone is in urgent need of permanent ownership residence and persons referred to in the FIR gain confidence and cheat the needy, such as the informant. The hard‑earned life earnings of people like the informant go to waste and such people never obtain any house or even a refund of their money. Conversely, cheaters like the persons mentioned in the FIR, including the applicant herein, obtain easy money through such offences. This is a fact and many times such cases come before the court. Allegations in the FIR clearly indicate how all the persons referred therein, from the beginning, with dishonest intention to cheat the informant, gained his confidence, impersonated MHADA high‑level officers and fetched huge money from him with a false promise of arranging an MHADA house when they were clearly aware that they could not arrange such a house. Fetching money to cheat the informant, prima‑facie indicates their dishonest intention to cheat the informant from the beginning, which is the basic qualification to attract Section 420 of the Indian Penal Code., Investigation is at a preliminary stage. The main accused Sunil Ghatvisave directed the informant and Ajay Patil to issue cheques in the name of some people. Accordingly, the informant and people named in the FIR transferred Rs. 10 lakh out of Rs. 21.50 lakh of Sanjay Shelar into the bank account of co‑accused Prashant Jadhav. An amount of Rs. 1.5 lakh was diverted into the account of applicant No. 3 Shrimati Babita Keshav Bangera as well as Rs. 3 lakh into her account with Union Bank. Rs. 3.5 lakh was transferred into the account of Ravi Hari Shigwan (Applicant No. 4) and Rs. 3.5 lakh into the account of Saraswati Lokre (Applicant No. 5). Rs. 5 lakh out of Rs. 16.50 lakh of Malati Patil was transferred into the account of the main accused Sunil Ghatvisave. All this clearly indicates that the applicants siphoned money which they collected from the informant and his friends, who were in urgent need of ownership houses at reasonable prices in the Prabhadevi area., At the moment, investigation is at a very preliminary stage. The facts alleged in the FIR and the monies transferred by the informant and his friends as instructed by the main accused Sunil Ghatvisave indicate a well‑calculated and well‑planned syndicate for cheating people like the informant and his friends by exploiting their urgent need. Receiving amounts by the applicants in their bank accounts, prima‑facie, reflects that all of them had concrete knowledge of the purpose for which the money was transferred into their accounts. Therefore, it is a clear case of cheating and misappropriation of the hard‑earned life earnings of people like the informant and his friends. Investigation is at a preliminary stage. In Mumbai, such incidents are frequently occurring. Granting anticipatory bail to persons like the applicants who have been involved in such scams would ultimately place a premium on their criminal activities. In this background, if anticipatory bail is granted, it is likely to paralyze the investigation, which is beyond the purview of Section 438 of the Criminal Procedure Code. Consequently, I am of the opinion that no strong prima‑facie case is made out by any of the applicants. Accordingly, the application is rejected. Dated: 13/07/2023 (M. G. Deshpande) Additional Sessions Judge. Criminal Report No. 16, Greater Bombay at Mumbai. Dictated and typed on: 13/07/2023. Checked and signed on: 13/07/2023. Date of pronouncement of judgment/order: 13/07/2023. Judgment/order signed by the Presiding Officer on 13/07/2023. Judgment/order uploaded on 15/07/2023.
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Petitioners Through: Mr. Ravi Prakash Gupta, Advocate versus Through: Ms. Manisha Agrawal Narain, CGSC with Ms. Shivangi Gumber, Advocate for R-1 and 2; Mr. M. A. Niyazi, Standing Counsel for CBSE with Ms. Anamika Ghai Niyazi, Ms. Kirti Bhardwaj, Ms. Nehmat Sethi and Mr. Arquam Ali, Advocates for R-3., Briefly stated, the facts of the instant petition are that the petitioner has asserted that the respondent No.3, Mrs. Nidhi Chibber has been appointed at the position of Chairperson, CBSE by way of bureaucratic reshuffle. The petitioner has contended that the respondent No.3 did not fulfil the requisite terms and conditions for appointment to the said position. Hence, the petitioner has preferred a writ of quo-warranto challenging the appointment of the respondent No.3, the continuation of the respondent No.3 at the said post and further prayed that the entire record may be produced before the Delhi High Court pertaining to the eligibility and experience of the respondent No.3., During the course of the proceedings on the last date of hearing i.e. 29th August 2023, the Delhi High Court directed learned counsel for respondent No.3, who appeared on advance notice, to file a short affidavit along with the requisite documents pertaining to the respondent No.3 being a qualified person to be appointed at the said position and did not issue notice to the respondents., In compliance with the order dated 29th August 2023, the learned counsel appearing on behalf of respondent No.3 has filed a short affidavit along with the requisite document annexed as Annexure R-5 to the petition, qua her qualification for the purposes of appointment as Chairperson, CBSE. He has referred to the serials No.8, 18, 19 and 22 of the document annexed as Annexure R-5 to the petition submitting to the effect that respondent No.3 has worked in the Education department for a period of 48 months in the Cadre of Director and above., The learned counsel appearing on behalf of respondent No.3 submitted that the allegations made in the instant petition qua the qualification of respondent No.3, that the respondent No.3 does not possess the minimum experience of three years in the field of education, are incorrect and submitted that the executive record sheet annexed as Annexure R-5 to its affidavit is also available on the website of the Department of Personnel and Training, Ministry of Personnel, Public Grievance and Pensions, Government of India., It is further submitted that respondent No.3 has the requisite qualification and experience in the field of Education as per the criteria in the vacancy circular issued in 2015 for the said post., Per contra, learned counsel appearing on behalf of petitioners vehemently opposed the submissions advanced on behalf of respondent No.3 and prayed for some time to file a reply to the short affidavit filed on behalf of respondent No.3., Heard learned counsel for the parties and perused the record, including the short affidavit along with requisite document filed on behalf of respondent No.3., Before delving on the merits of the case, it deems apposite to enunciate the scope of writ of quo-warranto. The said writ is a remedy under common law as which the person holding office is not entitled to hold such office and the appointment of the office-holder is contrary to the statutory rules, then the Delhi High Court under its writ jurisdiction may be removed by issuance of such writ. It is used to determine whether the person has the necessary qualification to hold the said position or not., The principle has been enunciated by the Hon'ble Supreme Court in the judgment of Gambhirdan K. Gadhvi v. State of Gujarat, (2022) 5 SCC 179 as follows: 16. When a writ of quo warranto will lie has been dealt with by this Court in Rajesh Awasthi v. Nand Lal Jaiswal [(2013) 1 SCC 501 : (2013) 1 SCC (Cri) 521 : (2013) 1 SCC (L&S) 192]. In paragraph 19, it has been observed and held under: 19. A writ of quo warranto will lie when the appointment is made contrary to the statutory provisions. The Delhi High Court in Mor Modern Coop. Transport Society Ltd. v. Financial Commissioner & Secretary to Government of Haryana [(2002) 6 SCC 269] held that a writ of quo-warranto can be issued when appointment is contrary to the statutory provisions. In B. Srinivasa Reddy v. Karnataka Urban Water Supply & Drainage Board Employees' Association [(2006) 11 SCC 731 : (2007) 1 SCC (L&S) 548], the Delhi High Court reiterated that the jurisdiction of the Delhi High Court to issue a writ of quo-warranto is limited to cases where the appointment is contrary to the statutory rules. The same position was reiterated by the Delhi High Court in Hari Bansh Lal v. Sahodar Prasad Mahto [(2010) 9 SCC 655 : (2010) 2 SCC (L&S) 771], wherein the Delhi High Court held that for the issuance of a writ of quo-warranto, the Delhi High Court has to satisfy itself that the appointment is contrary to the statutory rules. In Armed Forces Medical Association v. Union of India [(2006) 11 SCC 731 : (2007) 1 SCC (L&S) 548], the Delhi High Court observed that strict rules of locus standi are relaxed to some extent in quo-warranto proceedings. It further observed that the quo-warranto proceeding affords a judicial remedy by which any person who holds an independent substantive public office, franchise or liberty is called upon to show by what right he holds the said office, so that his title may be duly determined, and if the finding is that the holder has no title, he would be ousted by a judicial order. The Court further observed that the procedure gives the judiciary a weapon to control the executive from making appointments to public office against law and to protect citizens from being deprived of public office to which they have a right, thereby protecting the public from usurpers of public office. It further observed that before a person can effectively claim a writ of quo-warranto, he has to satisfy the Delhi High Court that the office in question is a public office and is held by a usurper without legal authority, leading to an enquiry as to whether the appointment of the alleged usurper has been made in accordance with law., Thus, as per the law laid down in a catena of decisions, the jurisdiction of the Delhi High Court to issue a writ of quo-warranto is limited to cases where a person holding public office does not fulfil the eligibility criteria prescribed for appointment or when the appointment is contrary to the statutory rules. Keeping in mind the law laid down by the Delhi High Court in the aforesaid decisions on the jurisdiction of the Court while issuing a writ of quo-warranto, the factual and legal controversy in the present petition is required to be considered., Now adverting to the facts of this case, the respondent No.3, by way of Annexure R-5 to its short affidavit, has filed information pertaining to its appointment at the said position and has drawn the attention of the Delhi High Court to serials No.8, 18, 19 and 22 of the said Annexure., As per serial No.8 of the said Annexure, the respondent No.3 has served as Secretary Joint Secretary in the Technical Education Department at AIS cadre for the period of 21st February 2012 to 17th September 2013; as per serial No.18, the respondent No.3 has served as Commissioner Joint Secretary at AIS cadre for the period of 15th July 2008 to 20th May 2009; as per serial No.19, the respondent No.3 has served as Commissioner Joint Secretary in D/O School Education Public Instructions at AIS cadre for the period of 22nd April 2008 to 22nd May 2009; moreover, as per serial No.22, the respondent No.3 served as Director of D/O School Education Public Instructions at AIS cadre for the period of 21st August 2007 to 21st April., Upon perusal of Annexure R-5 to respondent No.3's short affidavit, the Delhi High Court, prima facie, is not satisfied with the averments made in the instant writ petition, since the respondent No.3 fulfills the said criteria of being eligible to the said position as per the executive record sheet of the respondent No.3 filed as Annexure R-5 to respondent No.3's short affidavit., The writ of quo-warranto is issued in cases where there is a finding by the Delhi High Court under its writ jurisdiction that the person holding the public office does not possess the requisite qualification to be appointed to the position. The writ is issued by the Delhi High Court to prohibit the unqualified person from occupying the said position., In the instant case, the Delhi High Court is not inclined to issue a writ of quo-warranto, as no prima facie case is made out by learned counsel for the petitioner and the respondent No.3 has the qualification to be appointed as the Chairperson, Central Board of Secondary Education., In view of the foregoing discussion, the Delhi High Court is of the view that the instant writ petition filed by the petitioner is nothing but a gross misuse of process of law., Accordingly, the instant petition, along with pending application, stands dismissed., The order be uploaded on the website forthwith. Dy/db Click here to check corrigendum, if any.
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For the petitioners: Mister Sacchin Puri, Senior Advocate, with Mister Praveen K. Sharma and Mister Dhananjay Grover, Advocates; the petitioner in person in W.P.(C) No. 3031/2020; Mister Mahesh Agarwal, Mister Rishi Agrawala, Mister Karan Luthra, Mister Ankit Banati, Advocates in W.P.(C) No. 4970/2021; Mister Himanshu Dagar, Advocate for the applicant in C.M. No. 15648/2021; Mister Ajay Kohli, Miss Priyanka Ghorawat, Mister Raghav Marwaha, Advocates for Delhi Heart and Lung Institute; Miss Prabhsahay Kaur, Advocate in W.P.(C) No. 4971/2021; Mister Priyadarshi Manish and Miss Anjali J. Manish, Advocates in W.P.(C) No. 4984/2021; Mister Sidharth Dave, Senior Advocate with Miss Varuna Bhandari, Miss Bhakti Vardhan, Mister Tushar Thareja, Advocates in W.P.(C) No. 4985/2021; Mister Alok Kr. Aggarwal, Miss Anushruti, Miss Supreet Bimbra and Miss Simran Arora, Advocates in W.P.(C) No. 5001/2021; Mister Sachin Datta and Mister G. Tushar Rao, Senior Advocates with Mister Dinesh Sharma, Miss Ritika Jhurani, Miss Jipsa Rawat, Advocates, along with Mister D. K. Baluja, Medical Director, Jaipur Golden Hospital in W.P.(C) Nos.; Mister Maninder Singh, Senior Advocate with Mister Aarush Bhatia, Advocate; Mister Satish Aggarwala and Mister Gagan Vaswani, Advocates; Mister Krishnan Venugopal, Senior Advocate with Mister Manan Verma, Mister Aditya N. Prasad, Mister Kaushik Mishra and Miss Anmol Srivastava, Advocates in W.P.(C) No. 5050/2021; Mister M. K. Gahlaut, Advocate in W.P.(C) No. 5081/2021; Mister Mohit Chaudhary and Mister Kunal Sachdeva, Advocates in W.P.(C) No. 5085/2021; Miss Karuna Nundy, Mister Sarthak Maggon and Miss Upasana, Advocates; Mister Sudhir Mishra, Miss Petal Chandhok, Miss Rupali Gupta and Mister Raghav Seth, Advocates in W.P.(C) No. 5073/2021; Mister Siddharth Chechani, Advocate in W.P.(C) No. 5103/2021; Mister Abhinav Vashisht, Senior Advocate with Mister Sacchin Puri, Senior Advocate, Mister J. S. Bakshi, Senior Advocate with Mister Praveen K. Sharma, Mister Dhanjay Grover, Mister Kamil Khan and Miss Akshita Sachdeva, Advocates in W.P.(C) No. 5142/2021., For the respondents: Mister Tushar Mehta, Solicitor General, Mister Chetan Sharma, Additional Solicitor General, Miss Aishwarya Bhati, Additional Solicitor General, along with Miss Monika Arora, Mister Amit Mahajan, Mister Anil Soni and Mister Anurag Ahluwalia, Chief Government Solicitors; Mister Jivesh Kr. Tiwari, Miss Nidhi Parashar, Mister Kanu Aggarwal, Mister Kritagya Kumar Kait, Mister Shriram Tiwary, Mister Amit Gupta, Mister Akshay Gadeock, Mister Sahaj Garg and Mister Vinay Yadav, Advocates for the Union of India; Mister Rahul Mehra, Senior Advocate with Mister Satyakam, Mister Santosh Tripathi, Senior Counsel; Mister Gautam Narayan, Mister Anuj Aggarwal and Mister Anupam Srivastava, Additional Senior Counsel with Mister Aditya P. Khanna, Miss Dacchita Sahni, Miss Ritika Vohra and Mister Chaitanya Gosain, Advocates for the Government of National Capital Territory of Delhi; Mister Rajshekhar Rao, Senior Advocate (Amicus Curiae), Mister Anandh Venkataramani, Mister Vinayak Mehrotra, Miss Mansi Sood, Mister Karthik Sundar, Miss Sonal Sarda, Mister Areeb Y. Amanullah, Advocates; Mister Anil Grover, Senior Additional Advocate General for Haryana with Miss Bansuri Swaraj, Additional Advocate General for Haryana and Mister Siddhesh Kotwal, Miss Manya Hasija and Miss Ana Upadhyay, Advocates; Mister Aseem Chaturvedi and Mister Ajay Bhargav, Advocates for M/s INOX; Miss Divya Prakash Pande, Advocate for South Delhi Municipal Corporation; Mister Abhinav Tyagi, Advocate for M/s Seth Air Products; Miss Malvika Trivedi, Senior Advocate with Mister Tanmay Yadav, Miss Abhisree Saujanya, Miss Nihaarika Jauhari, Miss Eysha Marysha, Miss Vidhi Jain, Advocates along with Miss Kritika Gupta, applicant in person; Miss Garima Prashad, Senior Advocate with Mister Abhinav Agrawal, Advocate; Mister Ankur Mahindro and Miss Sanjoli Mehrotra, Advocates for intervener; Mister Om Prakash and Mister Pradeep Kumar Tripathi, Advocates for the applicant in C.M. No. 15651/2021; Mister Rohit Priya Ranjan, Advocate for M/s Goyal Gases; Mister Abhishek Nanda, Advocate for IRDAI; Mister Anupam S. Sharma, Special Public Prosecutor - Central Bureau of Investigation with Mister Prakarsh Airan, Miss Harpreet Kalsi, Advocates in W.P.(CrL) No. 953/2021; Mister Tushar Mehta, Solicitor General with Mister Chetan Sharma, Additional Solicitor General, Mister Satya Ranjan Swain, Chief Government Solicitor and Mister Kautilya Birat, Mister Vedansh Anand, Advocates., Amicus Curiae Mister Rajshekhar Rao pointed out that although the Central Government, by its letter dated 30 April 2021, revised the allocation of oxygen to the Government of National Capital Territory of Delhi to 590 metric tonnes, the allocation orders do not consider the supplier's capacity. He noted that India Glycols was initially required to supply 30 metric tonnes to Delhi and 40 metric tonnes to the State of Uttarakhand but has repeatedly expressed its inability to supply the full 30 metric tonnes to Delhi because it cannot produce 70 metric tonnes daily. He further submitted that Air Liquide, which according to the latest allocation must supply a total of 190 metric tonnes to Delhi, has also claimed it can supply only a maximum of 165 metric tonnes., Mister Rahul Mehra, Senior Counsel for the Government of National Capital Territory of Delhi, submitted that, as per the Central Government's own statement, 1,224 cryogenic tankers with a capacity of 16,732 metric tonnes per day are available, which far exceeds the total daily allocation of 8,606 metric tonnes to all States. He argued that sufficient tankers exist for timely supply and that a rational distribution of tankers is required to rectify the shortage in Delhi. He prayed that the Central Government be directed to take over all tankers in the country as a national resource, so that they can be deployed where needed. The learned Additional Solicitor General, Mister Chetan Sharma, refuted this, contending that a tanker’s effective capacity cannot be calculated at 100 percent because turnaround time and other exigencies must be considered., Mister Mehra further submitted that a substantial portion of the oxygen allocated to Delhi has been earmarked from suppliers located 1,200 to 1,500 kilometres away, causing time‑consuming transport and delays in making the oxygen available to Delhi’s citizens. He suggested that the Central Government explore alternative routes, as recommended by Delhi, to enable more organized and timely delivery of oxygen., In view of the foregoing, the Supreme Court of India directs the Central Government to examine the matters raised by the Government of National Capital Territory of Delhi expeditiously and to inform this Court of its findings. The Empowered Group looking into the mapping and allocation of liquid medical oxygen in the country should correct any errors and make necessary amendments, as such errors could adversely affect the supply of oxygen to States and Union Territories., The learned Amicus reported that, after detailed discussions with suppliers, the realistic maximum daily supply of liquid medical oxygen is 480 to 520 metric tonnes. He submitted that, to meet the present demand in Delhi, the Central Government, in collaboration with Delhi, should create a buffer stock of at least 100 metric tonnes of oxygen for emergency use, as directed by the Supreme Court in its order dated 30 April 2021. The Court finds merit in this submission and reiterates the Supreme Court’s direction that a buffer emergency stock be created, decentralized, and made immediately available in case of supply chain disruptions. The emergency stock should be created within four days and its replenishment monitored in real time through a virtual control room in consultation with each State or Union Territory., The Court further directs the Central Government, in collaboration with Delhi, to set up a buffer stock of 100 metric tonnes of liquid medical oxygen in the National Capital Territory of Delhi or in neighboring areas, with the stock to be created within three days., The Amicus observed that the public is desperate to obtain oxygen cylinders, leading to long queues at refill stations and a risk of law and order disturbances. He noted that liquid oxygen is explosive and any accident at a refill plant could cause loss of life. He recommended deployment of a dedicated force for crowd management at refill stations, suggesting that the Central Industrial Security Force, which is experienced in crowd control, be deployed. The Central Government is directed to respond within two days, and the matter will be considered on 7 May 2021., Mister Rao also submitted that political leaders should appeal to the public not to hoard medicines or gas cylinders, as artificial scarcity is being created by people stockpiling oxygen cylinders for unforeseen situations. The Court finds merit in this submission and suggests that political leadership issue appeals encouraging people to surrender surplus cylinders and medicines, similar to the practice of blood banks. The feasibility and modalities of establishing oxygen cylinder banks and medicine banks in Delhi should be examined, and a plan placed before the Court within two days, to be considered on 7 May 2021., The Court notes that the general public remains insufficiently aware of COVID‑19 protocols and the proper use of oxygen concentrators and cylinders. It directs the Indian Council of Medical Research and the Ministry of Health and Family Welfare to expand their outreach through WhatsApp, print, audio‑visual media, television channels and the internet, covering (i) COVID‑19 protocols, (ii) correct use of oxygen concentrators and cylinders, (iii) appropriate timing for seeking medical attention, and (iv) key symptoms requiring attention. Illustrative educational material should be prepared to cover all necessary aspects., Mister Chetan Sharma, the learned Additional Solicitor General, pointed out that there are about 750 clinics, including Mohalla Clinics run by Delhi, which could be utilized for disseminating information and preliminary investigation of COVID‑19 cases. Mister Mehra assured the Court that Delhi will consider this suggestion and file a status report within two days. The ICMR is requested to suggest how Mohalla Clinics can be employed for COVID‑19 management., The Court notes a grievance that some hospitals and nursing homes, despite receiving allocated oxygen from dealers, continue to approach suppliers for additional supply. It clarifies that allocation to hospitals and nursing homes is strictly pursuant to the allocation order; once the allocated quantity is received from dealers, no further demand can be made on the suppliers., Mister Chetan Sharma, the learned Additional Solicitor General, stated that twelve new cryogenic tankers have been physically deployed for transporting liquid medical oxygen to Delhi. Mister Mehra submitted that the registration numbers and GPS trackers of the tankers allocated for Delhi should be shared with Delhi authorities and that these tankers should not be used for supply to other States to avoid confusion and delays. The Court considers this a fair request and directs the Central Government to honor it for better management of supplies., The Court observes that many small nursing homes treating COVID‑19 patients are not registered with Delhi. For example, a doctor from Munni Maya Ram Jain Hospital, AD Block, Pitampura, joined the proceedings and noted that their names and requirements are absent from the oxygen allocation orders, leading to grievances about non‑supply of oxygen cylinders. All such nursing homes should approach Delhi, declare their COVID‑19 bed capacity and patient numbers, and be incorporated into the oxygen cylinder supply system., The Court is informed that the payment gateway on Delhi’s website for receiving donations is not functioning. Delhi is directed to rectify the issue and report compliance by 6 May 2021., Another matter raised by the Amicus concerns Delhi creating a plasma bank and providing public information about it. Delhi shall examine this issue and report on 7 May 2021., During the hearing, it was brought to the Court’s notice that Delhi is still not receiving 700 metric tonnes of liquid medical oxygen per day, despite the Supreme Court’s order dated 30 April 2021 directing the Union of India to comply by 3 May 2021. Paragraphs 27 to 29 of that order are reproduced: (i) Mister Rahul Mehra submitted that Delhi’s projected demand rose from 300 metric tonnes per day on 15 April to 700 metric tonnes per day on 18 April, but the allocation remained at 490 metric tonnes per day, with manufacturers able to supply only 445 metric tonnes per day; (ii) the Solicitor General and Miss Dawra stated that no revised projections have been received from Delhi and that Delhi has failed to offtake the allocated quantity; (iii) the Central Government’s affidavit dated 23 April 2021 admitted a 133 % increase in projected demand to 700 metric tonnes per day, yet the allocation remained at 490 metric tonnes per day. The Court finds this situation unacceptable and issues a peremptory direction that the deficit be rectified and supply be made to Delhi according to its projected demand on a day‑by‑day basis. Compliance is directed within two days of the hearing, i.e., on or before midnight of 3 May 2021., Mister Sharma submitted that a compliance affidavit will be filed in the Supreme Court tomorrow, but the Court noted that 700 metric tonnes of liquid medical oxygen are still not being delivered to Delhi, and even the earlier allocated quantity of 490 metric tonnes, revised to 590 metric tonnes per day, has not been delivered for a single day. The Court disagrees with Mister Sharma’s submission and observes that the Supreme Court’s order clearly directs the Union of India to supply 700 metric tonnes of liquid medical oxygen to Delhi daily, making up the deficit., The Court further notes that the Supreme Court recorded Mister Mehra’s submission that producers could supply only 445 metric tonnes per day against Delhi’s demand of 700 metric tonnes, and that the projected demand for the coming days is 976 metric tonnes per day due to increased medical infrastructure. Paragraph 29 of the Supreme Court’s order confirms that Delhi’s demand increased by 133 % on 20 April 2021 and that the allocation remained at 490 metric tonnes per day. The Court reiterates that this situation must be remedied forthwith., In view of the foregoing, the Supreme Court of India directs the Central Government to show cause why contempt action should not be initiated for non‑compliance with the short order dated 1 May 2021 and the Supreme Court’s order dated 30 April 2021. The Central Government is directed to ensure the presence of Mister Piyush Goyal and Miss Sumita Dawra before the Court on 5 May 2021.
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Reserved on: 22nd August 2023 Pronounced on: 18th December 2023 Through: Ms. Meenakshi Kalra, Advocate. Versus Thapliyal, Mr. S.P. Paul, Ms. Kiran Lata Pal & Ms. Kanchan Thapliyal, Advocates., The present appeal under Section 19 of the Family Courts Act, 1984 read with Section 28 of the Hindu Marriage Act, 1955 (hereinafter referred to as Hindu Marriage Act, 1955) has been filed on behalf of the appellant wife (respondent in the divorce petition) against the judgment dated 11 September 2018 of the learned Principal Judge, Family Court, granting divorce on the ground of cruelty in a petition filed by the respondent husband (petitioner in the divorce petition) under Sections 13(1)(ia) and 13(1)(ib) of the Hindu Marriage Act., Briefly stated, the parties were married on 15 April 2009 and one daughter was born from their wedlock on 27 October 2011. The respondent husband in his petition seeking divorce claimed that from the beginning the conduct of the appellant wife was indifferent and she had no interest in discharging her matrimonial obligations. The appellant wife refused to manage the house or to do the household chores. The father of the respondent husband was compelled to take care of the household chores, including preparation of food., The appellant wife claimed that the parties had their marriage at Nagpur, Maharashtra, where the appellant wife instigated the respondent husband against his family members. Likewise, when they went to Haridwar from 10 June 2009 to 15 June 2009, she picked up a quarrel with the brother, sister and father of the respondent husband., On the day of Karwa Chauth 2009, the appellant wife got annoyed with the respondent husband as he had not recharged her mobile and she decided not to keep the fast., It was claimed by the respondent husband that the appellant wife used to pick up quarrels on petty issues. In January 2010, the appellant wife got annoyed and stopped taking food. The respondent husband called the mother‑in‑law to resolve the situation, however the appellant wife got angry and broke the television., The appellant wife left the matrimonial home for 47 days from 17 October 2010 and returned on 4 March 2010. Thereafter, on 2 April 2010, the appellant wife went to her parents’ home because of the month of Mahamas (when traditionally the husband and wife do not live together) which was to commence 12 days hence. However, the appellant wife failed to return to the matrimonial home despite repeated requests of the respondent husband. Being harassed by such conduct, the respondent husband wrote a letter dated 4 June 2010 to his father‑in‑law apprising him of the conduct of the appellant wife. The respondent husband also wrote a letter dated 12 June 2010 to the SHO, Police Station Hari Nagar. The appellant wife eventually returned after 147 days on 26 August 2010 on her own with her mother. When the respondent husband asked her for such delayed return, the appellant wife retorted that she was the master of her will., The respondent husband alleged that on 16 February 2011, the appellant wife developed breathing problems and when she was taken to the doctor, it was indicated in the echo and X‑ray that it was a ten‑year‑old problem. The respondent husband had no inkling about her ailment and the same was not disclosed at the time of their marriage. The appellant wife underwent a heart surgery and she was advised not to take oily and spicy foods., When on 17 March 2011 the respondent husband requested the appellant wife to abide by the doctor’s advice, she called the Police Control Room. The respondent husband and his parents were called to the police station where they were put to unnecessary harassment. The respondent husband telephonically informed the mother of the appellant wife but she refused to intervene, claiming that she had no time., The precipitative incident was on 2 April 2011, when the respondent husband developed a slip disc. The appellant wife, rather than taking care of the respondent husband, removed her vermilion from her forehead, broke her bangles and wore a white suit, declaring that she had become a widow., In March 2011 the appellant wife was found to be pregnant and because of her heart ailment, she was advised caesarean surgery which was fixed for 24 October 2011. The appellant wife, without informing the respondent husband, stealthily left the matrimonial home from the back door of the house on 19 October 2011. The respondent husband tried to contact her but her mobile phone was found switched off., On 26 October 2011 the respondent husband was informed by the appellant wife that she had been admitted to Action Balaji Hospital for delivery. The daughter was born on 27 October 2011. Though the respondent husband bore all the expenses of delivery, the appellant wife went to her parental home on 3 October 2011 along with the daughter and did not allow the respondent husband and his family members to see the child. The appellant wife refused to talk to the respondent husband on the issue of returning home., On 28 February 2012 the appellant wife’s father came to the matrimonial home and threatened the respondent husband’s father and brother. On the occasion of the first birthday of the child, the respondent husband was not allowed to meet her, but he was insulted and threatened that he would be sent to jail., The respondent husband has further asserted that the appellant wife lodged a complaint in the Centre for Assistance to Women (CAW) Cell on 26 March 2011 against him and his family members. The respondent husband was called in the CAW Cell on 9 April 2012 and subsequently the appellant wife withdrew her complaint., To further harass the respondent husband, the appellant wife filed a complaint under the Protection of Women from Domestic Violence Act, 2005 before the learned Mahila Court, Saket making allegations against the respondent husband and his father, his brother and married sisters, including one sister who was residing in Dubai. Subsequently, by the order of the court, the name of the sisters was dropped. Such conduct of the appellant wife resulted in great mental agony and pain and the respondent husband claimed that the appellant wife had deserted him since 19 October 2011. The respondent husband sought divorce on the ground of cruelty under Section 13(1)(ia) and desertion under Section 13(1)(ib) of the Hindu Marriage Act, 1955., The appellant wife in her written statement denied all the allegations made by the respondent husband. It was claimed that it was the respondent husband who had encouraged her to go to her parental home and that she had returned after two or three days; she denied that she returned after 147 days as claimed by the respondent husband., She also denied that she had stayed away from the matrimonial home for 147 days as alleged by the respondent husband. The appellant wife asserted that the petition was without cause of action and was liable to be dismissed., Issues on the pleadings were framed on 26 March 2014 and 22 July 2014 as under: (1) Whether the petitioner was treated with cruelty by the respondent, as per averments made in the petition? (2) Whether the respondent has withdrawn from the society of the petitioner without any justification? (3) Relief., The respondent husband examined himself as PW1 and his brother Ashok Nautiyal as PW‑2 in support of his evidence and the appellant wife only examined herself as RW‑1 in support of her respective claims., The learned Principal Judge, Family Court observed that the conduct of the respondent husband towards the appellant wife was non‑cooperative and temperamental. The appellant wife unnecessarily stayed at her parental home for long without the consent and information to the respondent husband. The appellant wife was also held to have caused mental cruelty to the respondent husband by instituting the complaints against him and subsequently withdrawing the same. It was thus concluded that the respondent husband was subjected to cruelty and was entitled to divorce on the ground of cruelty under section 13(1)(ia) of the Hindu Marriage Act, 1955. However, it was found that the requisite two‑year period of separation was not fulfilled as the petition was filed earlier than that. Thus, the divorce sought on the ground of desertion was not allowed as the petition was premature., Aggrieved by the impugned judgment dated 11 September 2018, the appellant wife has preferred the present appeal., Submissions were heard from the learned counsels for the parties and the documents as well as the evidence were perused., From the pleadings of the parties, the admitted facts are that they got married on 15 April 2009 and they eventually separated on 19 October 2011. The parties resided together for barely one year and three months and even during this period the matrimonial life was not blissful as is evident from the evidence of the parties., The respondent husband has proved that the appellant wife left the matrimonial home on 17 January 2010 and returned after 47 days on 4 March 2010, for which there is no explanation forthcoming from the appellant wife., Again, it is not denied by the appellant wife that she was away from the matrimonial home for 147 days from 2 April 2010 till 26 August 2010. The respondent husband, as per his testimony, had approached his father‑in‑law for convincing the appellant wife to return home; however, the appellant wife admittedly stayed away for 147 days, but has not been able to give any reasonable explanation for staying away from the matrimonial home., The appellant wife had thus, admittedly, stayed away from the matrimonial home for about 194 days i.e., almost six and a half months, out of the period of one year and three months. The parties resided together for barely nine months., The respondent had deposed that when the appellant wife underwent heart surgery in February 2011, she was advised by the doctor to take non‑oily and non‑spicy food. When the respondent husband tried to advise the appellant wife against consuming such food, she on 17 March 2011 retaliated by calling the Police Control Room and the respondent husband and his parents had to spend a day in the police station which is definitely a source of mental agony, pain and humiliation., Another significant incident deposed by the respondent husband was that when he developed a slip disc in April 2011, the appellant wife instead of taking care of him removed her vermilion from her forehead, broke her bangles and wore a white suit, and claimed herself to be a widow. This is an ultimate act of rejection of the matrimonial relationship, reflecting her intention of repudiation of the matrimonial relationship. In this context, it is pertinent to refer to the testimony of the respondent husband that in the year 2009 on the first Karwa Chauth also, the appellant wife had refused to keep the fast of Karwa Chauth on a petty reason of her mobile not being recharged by the respondent husband., Though we may hasten to clarify, that fasting or not fasting on Karwa Chauth may be an individual choice and if dispassionately considered, may not be termed as an act of cruelty. Having different religious beliefs and not performing certain religious duties, per se would not amount to cruelty or be sufficient to sever a marital tie. However, when coupled with the conduct of the appellant wife and in the circumstances proved by the respondent husband in the present case, it is established that non‑conforming with the prevalent rituals in Hindu culture, which symbolize love and respect for the husband as well as the matrimonial relationship, fortifies the conclusion that the appellant wife had no respect for the respondent husband and their marital bond. It also reflects that the appellant wife had no intention to continue her marriage with the respondent husband., Similar facts, as in hand, were considered in the case of Dr. N.G. Dastane v. S. Dastane, AIR 1975 SC 1534, wherein it was observed that, while adjudicating matrimonial disputes, it should not be overlooked that the parties before the court are not the ideal man or the ideal woman, because if so were the case, no dispute would have arisen between the ideal spouses in the very first place. The ideal spouses would not be knocking the doors of the matrimonial courts and would be capable of moving past the ups and downs of married life. Hence, it must be borne in mind that the courts are dealing with this particular man and particular woman and the acts of cruelty as claimed by the parties have to be interpreted and considered in their own factual context. On the test of trivialities, since there exists no strict formula for determining mental cruelty in such matrimonial disputes, it emerges that what may be an act of cruelty for one person may not be for another, clearly depending upon the circumstances of each case, e.g., status in society, environment, education, local customs, cultural development, social condition, physical and mental conditions of the parties. The conduct complained of is subjective and varies from person to person., A similar situation as in the present case came up for consideration in the case of Dastane (supra) where the parties were highly educated and well placed. The wife had broken her mangalsutra which was interpreted as symbolising rejection of her marriage and was held to be an act of extreme cruelty., Herein also, the conduct of the appellant wife can only be interpreted as a manifestation of no respect for the matrimonial relationship and her husband. Nothing can be a more harrowing experience for a husband than to see his wife act as a widow during his lifetime, that too in a situation where he was seriously injured and expected nothing more than care and compassion from his significant other. Undeniably, such conduct of the appellant wife can only be termed as an act of extreme cruelty towards the respondent husband., On 17 March 2011, the appellant wife lodged the complaint in the CAW Cell on 26 March 2011, not only against the respondent husband but also against his aged parents which she subsequently withdrew. The appellant wife has not been able to explain any justifiable reason for having called the Police Control Room or having made a complaint in the CAW Cell. This fact assumes importance since subsequently the complaint under the CAW Cell was admittedly withdrawn by her., Though filing of a criminal complaint per se cannot be termed as an act of cruelty, the allegations of cruelty as made in the criminal case(s) should have been substantiated in the divorce proceedings. Making such false and frivolous complaint to the police and dragging not only the respondent husband but also family members has been consistently held to be an act of cruelty. In the case of K. Srinivas v. K. Sunita X (2014) SLT 126, the Supreme Court held that filing of a false complaint against the husband and his family members constitutes mental cruelty for the purpose of Section 13(1)(ia) of the Act, 1955., Similarly, it has been held by the Supreme Court in Mangayakarasi v. M. Yuvaraj (2020) 3 SCC 786 that it cannot be doubted that in an appropriate case, the unsubstantiated allegation of dowry demands or such other allegations, made the husband and his family members exposed to criminal litigation. Ultimately, if it is found that such allegations were unwarranted and without basis and if that act of the wife itself forms the basis for the husband to allege mental cruelty, certainly, in such circumstance, if a petition for dissolution of marriage is filed on that ground and evidence is tendered before the original court to allege mental cruelty, it could be appreciated for the purpose of dissolving the marriage on that ground., Further, the Supreme Court in the case of Ravi Kumar v. Julmidevi (2010) 4 SCC 476 has categorically held that reckless, false and defamatory allegations against the husband and family members would have the effect of lowering their reputation in the eyes of society and it amounts to cruelty. Similar observations were made by the Coordinate Bench of this Court in the case of Rita v. Jai Solanki (2017) SCC OnLine Del 9078 and Nishi v. Jagdish Ram (2016) DLT 50., The appellant wife has not been able to justify the ground on which these complaints were being made. As discussed in the judgments mentioned above, repeated complaints with unexplained allegations to various agencies cannot be termed as anything but cruelty., Significantly, the appellant wife filed the complaint under the Protection of Women from Domestic Violence Act, 2005, again not confined to the respondent husband alone but his family members including his elderly father, brothers, and even married sisters, out of whom one sister was residing in Dubai. This can be interpreted only as a vindictive act on the part of the appellant wife to unnecessarily embarrass, harass and agonise the respondent husband for feeling responsible for the harassment caused to his family members on his account., Pertinently, the married sister had shifted to Dubai permanently within four months of the marriage of the parties and hence, her name was dropped from the Protection of Women from Domestic Violence Act, 2005 proceedings. This clearly reflects the falsity of her implication., Lastly, we may observe that the appellant wife had left the matrimonial home on 19 October 2011, barely within one year and three months of marriage and since then she has not made any reconciliatory efforts or attempted to return to the matrimonial home. It needs no reiteration that the bedrock of any matrimonial relationship is cohabitation and conjugal relationship. The gravamen of any marriage is the succour and the peace that the couple derive from the company of each other. For a couple to be deprived of each other’s company proves that the marriage cannot survive, and such deprivation of one spouse of conjugal relationship by the other spouse is an act of extreme cruelty. This long separation and withdrawn conduct of the appellant wife, when considered in the light of the facts as discussed above, clearly leads to only one conclusion of her having rejected and abandoned her matrimonial relationship., Such long separation, with no effort by the appellant wife to resume matrimonial relationship, is an act of cruelty as held in the case of Samar Ghosh v. Jaya Ghosh (2007) 4 SCC 511., We thus conclude that the evidence on record proves that there is no chance of reconciliation between the parties and such long separation peppered with false allegations, police reports and criminal trial can only be termed as mental cruelty. The marital discord between the parties has pinnacled to complete loss of faith, trust, understanding, love and affection between the parties. This dead relationship has become infested with acrimony, irreconcilable differences and protracted litigations; any insistence to continue this relationship would only be perpetuating further cruelty upon both parties., We, therefore, find that the appellant wife has acted with cruelty towards the respondent husband and divorce under Section 13(1)(ia) of the Hindu Marriage Act, 1955 has been rightly granted., Accordingly, we find no merit in the present appeal to interfere with the impugned judgment dated 11 September 2018, which is hereby dismissed., The pending applications, if any, are also dismissed.
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MA No. 140/2009 New India Assurance Co. Ltd. Appellant(s)/Petitioner(s) Through: Mr. Udhay Bhaskar, Advocate Vs Jagjeet Singh and others. Respondent(s) Through: Mr. Jatinder Choudhary, Advocate for., The appellant/Insurance Company has challenged award dated 18.11.2008 passed by the learned Motor Accidents Claims Tribunal, Kathua (hereinafter referred to as the Tribunal), whereby respondent Nos. 1 to 4 (claimants) have been awarded compensation of Rupees 2,62,896 along with interest at the rate of 7.5 percent per annum from the date of filing the claim petition till payment is made., It appears that respondents Nos. 1 to 4 (claimants) had filed a claim petition before the Tribunal pleading that on 27.06.2002 while deceased Tejinder Singh, who was the son of respondents Nos. 1 and 2 and brother of respondents Nos. 3 and 4, was travelling on his motorcycle, the motorcycle near Jarai Morh was hit by a bus bearing registration number JK02E-8421 that was being driven rashly and negligently by its driver, respondent No. 6. The bus belonged to respondent No. 5 and was insured with the appellant at the relevant time. As a result of the accident, the deceased died. The claimants pleaded that the deceased was running a business of electric goods and earning an amount of Rupees 8,000 per month. His age was stated to be 20 years at the time of death. The claim petition was contested by the appellant, whereas the owner and driver of the offending vehicle did not contest the claim petition., In the reply to the claim petition, the appellant pleaded that the driver of the offending vehicle was not holding a valid and effective driving license at the time of the accident but admitted the currency of the insurance policy of the offending vehicle with it at the time of the accident. On the basis of the pleadings of the parties, the following issues were framed by the learned Tribunal: Whether on 27.06.2002 vehicle bearing number JK02E-8421 driven by its driver non‑applicant No. 1 under the employment of non‑applicant No. 2 rashly and negligently dashed against the deceased Tejinder Singh (Shanty) who was coming on his motorcycle near Jarai More, Kathua resulting in his death on the spot? Whether the monthly income of the deceased was Rupees 8,000 at the time of accident, and if so, what is its effect on the claim petition? Whether the petitioners, heirs of the deceased are entitled to total amount of compensation of Rupees 17.34 lakhs and on what ground from whom? Whether the driver of the offending vehicle was not holding a valid and effective driving license at the time of accident, as such non‑applicant No. 3 is not liable to pay any compensation to the petitioners? Whether the offending vehicle was being plied in violation of terms and conditions of Registration Certificate, Route Permit and Insurance Certificate as such non‑applicant No. 3 is not liable to indemnify by the owner? Whether the compensation claimed is highly excessive and inflated, as such petitioners are not entitled to such a huge amount of compensation? Relief., After recording the statements of the witnesses produced by the claimants and the Insurance Company, the learned Tribunal concluded that the accident was caused due to rash and negligent driving of the offending vehicle by its driver, respondent No. 6, which resulted in death of deceased Tejinder Singh. The Tribunal also held that there was no violation of the policy conditions on the part of the insured and that the driver of the offending vehicle was holding a valid and effective driving license at the time of the accident., While assessing the compensation, the learned Tribunal concluded that the income of the deceased was Rupees 5,000 per month and on that basis, loss of dependency was calculated at Rupees 2,59,896. After adding the conventional heads, the total compensation of Rupees 2,62,896 was awarded in favour of the claimants., The appellant has challenged the impugned award primarily on the ground that the driver of the offending vehicle was not holding a valid and effective driving license at the time of the accident and, as such, there was violation of the conditions of the insurance policy entitling the Insurance Company to be exonerated from indemnifying the insured. It has been submitted that the offending vehicle was a passenger‑carrying bus, whereas its driver, respondent No. 6, was holding a driving license which authorized him to drive a heavy goods vehicle only. Since there was no endorsement on the driving license authorising him to drive a public service vehicle in terms of Rules 4 of the Jammu and Kashmir Motor Vehicle Rules, respondent No. 6 was not holding a valid and effective driving license., I have heard learned counsel for the appellant as also the learned counsel appearing for respondent No. 6 (driver) and perused the material on record including the grounds of appeal and record of the Tribunal., There is no dispute to the fact that the offending vehicle was a passenger‑carrying vehicle and it is also not in dispute that respondent No. 6 was holding a driving license that authorized him to drive a heavy goods vehicle only as it did not bear any endorsement authorising its holder to drive a public service vehicle., The question that falls for determination is whether a driver holding a license to drive a heavy goods vehicle is eligible to drive a passenger‑carrying vehicle. In order to find an answer to this question, we need to notice the definitions of goods carriage, heavy goods vehicle, transport vehicle and public service vehicle as given in Section 2 of the Motor Vehicles Act, 1988., Section 2(14) of the Motor Vehicles Act, 1988 defines goods carriage as any motor vehicle constructed or adapted for use solely for the carriage of goods, or any motor vehicle not so constructed or adapted while being used for the carriage of goods., Section 2(16) of the Motor Vehicles Act, 1988 defines heavy goods carriage as any goods carriage the gross vehicle weight of which or a tractor or a road‑roller the unladen weight of either of which exceeds 12,000 kilograms., Section 2(35) of the Act defines public service vehicle as any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward, and includes a maxicab, a motorcab, contract carriage, and stage carriage., The transport vehicle has been defined under Section 2(47) of the Motor Vehicles Act, 1988 as a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle., What is deduced from the analysis of the definitions of the various classes of vehicles is that every heavy goods vehicle is a goods carriage, whereas a transport vehicle includes within its definition a public service vehicle as well as a goods carriage. Thus a passenger‑carrying vehicle i.e. a public service vehicle as also a heavy goods vehicle, i.e. a goods carriage, fall within the definition of a transport vehicle as contained in Section 2(47) of the Motor Vehicles Act, 1988., In the instant case, respondent No. 6, the driver, was holding a driving license which authorized him to drive a heavy goods vehicle. As already noted, heavy goods vehicle falls in the category of transport vehicle and the public service vehicle also falls in the same category. The driver was therefore authorized to drive a class of vehicle which falls under the category of transport vehicle. Therefore, it can be safely stated that the driver was authorized to drive even a public service vehicle, which also falls in the same class i.e. the class of transport vehicle., Looking from another angle, as per the amended provisions of Section 10 of the Motor Vehicles Act, 1988, a driving license is to be issued for the following classes of vehicles: (a) Motorcycle without gear (b) Motorcycle with gear (c) Invalid carriage (d) Light motor vehicle (e) Transport vehicle (f) Road‑roller (g) Motor vehicle of a specified description., In clause (e) of Section 10(2) of the Motor Vehicles Act, the expression transport vehicle has replaced all types of commercial vehicles, which includes goods vehicles as well as passenger‑carrying vehicles. This was done by amendment effective 14.11.1994. Therefore, with effect from 14.11.1994 driving licences in respect of commercial vehicles are issued under the head transport vehicle and no sub‑classification of these types of licences is envisaged under Section 10(2) of the Act., The accident, which is the subject matter of the instant case, took place in the year 2002 i.e. well after the coming into effect of the aforesaid amendment; therefore, any person who was holding a driving licence authorising him to drive a particular type of commercial vehicle would automatically be eligible to drive any other type of commercial vehicle, meaning that a driver holding a licence to drive a heavy goods vehicle would be competent to drive a passenger‑carrying vehicle. On this ground also, the driving licence held by respondent No. 6 was a valid and effective licence authorising him to drive the offending vehicle., Learned counsel for the appellant, while arguing in support of the grounds urged in the appeal, relied upon the judgment of this Court in National Insurance Company Ltd v. Bashir Ahmed Chopan and others, 2012 (1) JKJ [HC] 222, wherein this Court held that a driver holding a driving licence entitling him to drive a heavy goods vehicle is not competent to drive a passenger‑carrying vehicle unless there is a PSV endorsement. The ratio laid down in the said case is per incuriam and not a binding precedent because the provisions referred to were not brought to the notice of the Court at the time of the judgment. Even otherwise, the judgment was passed without taking note of the binding precedent delivered by the Division Bench of this Court in National Insurance Co. Ltd v. Mohd Sadiq Kuchay and others 2008 (1) SLJ 23, wherein it was held that PSV endorsement in accordance with Jammu and Kashmir Motor Vehicle Rules is not necessary and that if a driver is competent to drive a particular class of transport vehicle, he is competent to drive any other class of transport vehicle., For the foregoing reason, I do not find any merit in this appeal; the same is dismissed. The amount, if any, deposited by the appellant with the Registry of the High Court of Jammu and Kashmir be released in favour of the claimants in accordance with the directions of the learned Tribunal.
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Decided on 29.05.2023. Through: Mr. Vivek Sibal, Senior Advocate with Ms. Anu Monga, Mr. Rahul Goyal, Mr. Shobhit Sharma, Ms. Parul Parmar and Mr. Paritosh Dhawan, Advocates, versus through: Mr. Shadan Farasat, Additional Standing Counsel for the Government of National Capital Territory of Delhi with Ms. Mriganka Kukreja, Advocate, Mr. Aditya N. Prasad (Amicus Curiae) and Mr. Harsh Vardhan, Advocate, Mr. Anupam Srivastava, Additional Standing Counsel, Government of National Capital Territory of Delhi with Mr. Vasu Misra, Advocates for Respondents 1, 3 and 5, Ms. Sakshi Popli, Advocate for Mr. Divya Prakash Pande, Supreme Court. The hearing was conducted in hybrid mode (physical and virtual)., At joint request, the petition is taken up for disposal. This writ petition impugns the order dated 19.01.2023 passed by the National Green Tribunal in Original Application No. 911/2022. Mr. Vivek Sibal, the learned Senior Advocate for the petitioners seeks directions apropos the procedure adopted for pruning of trees under the Delhi Preservation of Trees Act, 1994 (DPT Act) and the Guidelines for Pruning of Trees dated 01.10.2019 (Guidelines). The latter have been framed under the Delhi Preservation of Trees Rules, 1996., He submits that the impugned order permitting pruning of trees, on the basis of the Guidelines is erroneous because such pruning is permitted without prior approval and without even a site inspection or assessment of the trees concerned by the relevant authority namely, the Tree Officer/Deputy Conservator of Forests (Deputy Conservator of Forests). The Guidelines and the impugned order permit private parties/entities to prune trees even on land owned by the government (i.e., the Municipal Corporation of Delhi, Delhi Development Authority and Public Works Department)., He refers to the judgment dated 16.03.2017 passed by the National Green Tribunal (Western Zone) Bench, Pune in Mr. Pradeep Indulkar vs. Municipal Corporation for the City of Thane and Others in Application No. 157/2016 which analysed a similar provision of law regarding pruning of trees under the Maharashtra (Urban Areas) Protection and Preservation of Trees Act, 1975, and discussed the issue as follows:, The plants are thus inalienable component of environment. It is well known that plants, particularly the trees, contribute generously to the environment in terms of maintaining delicate environmental balance, especially ambient air quality, and provide succor and shelter to other living creatures. The preamble to the Maharashtra (Urban Areas) Protection and Preservation of Trees Act, 1975, reveals that the Act has been enacted to make better provisions for trees in the urban areas in the State by regulating felling of trees and providing for plantation of adequate number of new trees in those areas. The Act recognizes the need for making better provisions for protection and preservation of trees in the urban areas in the State in the face of growing urbanisation and industrialisation accompanied by indiscriminate felling of large numbers of trees in the urban areas. Thus, the object of this enactment to protect and preserve trees needs to be kept in mind while interpreting its provisions. It is correct that preservation of trees as per Section 2(c) of the Maharashtra (Urban Areas) Protection and Preservation of Trees Act, 1975, includes other operations of survival and propagation of trees and the term trimming or pruning is nowhere defined in the said Act, but going by the dictionary meaning trimming/pruning involves cutting as can be seen from the relevant text in the Oxford Dictionary of English, 3rd Edition: 'Prune: verb (with object) to trim a tree, shrub, or bush by cutting away dead or overgrown branches or stems, especially to increase fruitfulness and growth. Cut away a branch or stem in this way; prune back the branches. Reduce the extent of something by removing superfluous or unwanted parts; the workforce was pruned. Remove superfluous or unwanted parts from something: Eliot deliberately pruned away details.' 'Trim: verb (trim, trimming, trimmed) (with object) 1. Make something neat or of the required size or form by cutting away irregular or unwanted parts.' Section 2(c) of the said Act defines the phrase to fell a tree as: 'to fell a tree includes burning or cutting or in any way damaging a tree.' On summarising this definition, one can easily perceive that any act of damaging a tree amounts to felling of a tree. If trimming/pruning of a tree is done without taking a decision as to what are wanted and unwanted parts of the tree and what would be good or bad for proper growth and/or survival of the tree, it will do more harm than good to the tree. It is therefore essential before trimming/pruning is done to take an informed decision as to whether such trimming/pruning would in any way damage the tree and to what extent the tree can be trimmed or pruned without causing such damage., The extracts of scientific literature produced before us by the applicant point out that trimming is a most common activity undertaken routinely on ornamental trees for maximising their benefits. The literature titled 'Pruning Mature Trees' suggests that over‑pruning is dangerous as it is one of the worst and most common mistakes in tree maintenance. Excerpts from the literature 'Pruning Do's and Don'ts', 3rd edition, indicate: Regardless of the state of life, there is no harm in removing portions of branches that are dead, broken, split, dying, diseased, or rubbing against each other. However, indiscriminately removing branches with live foliage can reduce tree health and encourage development of weak structure. Anytime live branches are removed, some live wood transitions to non‑living wood behind even a well‑executed pruning cut. This must be balanced against the improved structure that results from structural pruning. Removing a few small‑diameter branches typically has little effect. Dangers of over‑pruning: Large or profuse cuts lead to decay. Any cut made on a tree is a wound that must be healed. The fewer cuts made the better; smaller cuts throughout the tree’s life are better than large cuts that should have been made many years ago when the tree was small. One large poorly made cut or too many cuts in the wrong places can ruin a tree for life., Section 8 of the Maharashtra (Urban Areas) Protection and Preservation of Trees Act, 1975, stipulates restrictions on felling of trees in the following terms: (1) On and after the date on which this Act is brought into force in any urban area, notwithstanding any custom, usage, contract or law for the time being in force, no person shall fell any tree or cause any tree to be felled in any land, whether of his ownership or otherwise. (2) If any person, including an officer of the urban local authority or an officer of the State Government or the Central Government, proposes to fell a tree, he shall apply in writing to the Tree Authority for permission in that behalf. The application shall be accompanied by the description of the tree and a site plan indicating the position of the tree required to be felled and the reasons therefore. (3)(a) On receipt of such application, the Tree Authority shall cause the Tree Officer to personally inspect the tree and hold enquiry and submit a report to the Tree Authority within thirty days from the date of receipt of such application. Adequate public notice shall be given by the Tree Officer by advertising in local newspapers as well as by affixing a notice on a conspicuous part of the tree that is required to be felled. Thereafter, the Tree Authority may give permission with or without conditions or refuse it, within sixty days from the date of receipt of the application. However, no tree shall be felled until fifteen days after such permission is given, provided that no such permission shall be refused if, in the opinion of the Tree Authority, the tree is dead, diseased, wind‑fallen, or constitutes a danger to life or property, or obstructs traffic; and if any objection is received against such permission, the matter shall be placed before the Tree Authority for reconsideration, and a decision shall be taken within two weeks after giving a hearing to the person who has raised the objection. (b) A report of permissions granted by the Tree Authority for felling trees shall be submitted at least once in six months to the concerned urban local authority in whose jurisdiction the Tree Authority is functioning. (4) If the Tree Authority fails to inform the applicant of its decision within sixty days from the date of receipt of the application, or if the receipt of the application has been acknowledged within this period, the permission applied for shall be deemed to have been granted. (5) Where permission to fell a tree is granted, the Tree Authority may grant it subject to the condition that the applicant shall plant another tree of the same or other suitable local species on the same site or other suitable place within thirty days from the date the tree is felled, or such extended time as the Tree Officer may allow in this behalf, situated within that urban area, except with the previous permission of the Tree Officer., In clear and unambiguous terms the law lays down that no person shall fell a tree or cause any tree to be felled in any land whether of his ownership or otherwise situated within that urban area except with previous permission of the Tree Officer and if any person including an officer of the Urban Local Authority, State Government or Central Government proposes to fell a tree, he shall apply in writing to the Tree Authority for permission in that behalf. An elaborate procedure to deal with such application is prescribed by law in the manner aforesaid. Nowhere have we found under the said Act any provision exempting the Tree Officer to give a go‑by to the said provisions of law for the purposes of felling of trees which includes, in our opinion, trimming/pruning of the trees whether in routine or otherwise., The public streets vest in the Corporation Respondent No.1 by virtue of Section 202 of the Maharashtra Municipal Corporations Act, 1949 and as such it is for Respondent No.1 Corporation which is an Urban Authority as per Section 2(g) of Maharashtra (Urban Areas) Protection and Preservation of Trees Act, 1975 to move an application for the purposes of felling a tree on the public street, which includes its trimming/pruning as aforesaid to the Tree Authority for permission in that behalf., The said judgment also held the Municipal Corporation, Thane and the Tree Officer liable to pay environmental compensation and directed that some costs be paid. It also directed, inter alia, that Respondent No.1 shall take necessary steps to ensure that census of trees adopting modern technology in a digitised framework with geo‑tagging is duly completed within a reasonable period, and that Respondent No.1 Thane Municipal Corporation shall evolve the procedure for dealing with proposals of tree felling, including trimming/pruning of trees and maintaining its record‑keeping in view of the procedure suggested by the Pune Municipal Corporation in PIL No.93 of 2009 within two months., The learned Senior Advocate for the petitioner states that of the four directions passed by the National Green Tribunal, directions (1) and (2) were set aside and directions (3) and (4) were upheld by the Supreme Court of India by order dated 30.09.2019 passed in Civil Appeal No.8946/2017. The Supreme Court order reads, inter alia: 'We uphold directions Nos. 3 and 4 by which the Municipal Corporation was directed to evolve a fair procedure to deal with the proposal of felling of trees including trimming and pruning of trees. However, directions 1 and 2 are set aside in the facts and circumstances of the case.', The court agrees with the petitioner's contention that the methodology and rationale of the order of the National Green Tribunal in Mr. Pradeep Indulkar v. Municipal Corporation for the City of Thane should be applied in the present case as well and National Green Tribunal directions Nos. 3 and 4, as upheld by the Supreme Court, be followed and adopted for Delhi as well. The Government of National Capital Territory of Delhi should evolve a fair procedure to deal with the proposal for felling of trees, including their trimming and pruning., Section 8 of the Delhi Preservation of Trees Act, 1994, prohibits felling of trees in Delhi, except by express prior permission of the Tree Officer. Under the Act, permission for felling, cutting or removal of trees is granted by the Tree Officer on an application made under Section 9. The said section stipulates that permission would not be refused in the six circumstances enumerated therein. The grant of permission envisages the examination of: (i) the trees at the site i.e., obtaining a prior view; (ii) assessing the overall and specific situation at the site; and (iii) application of mind by the Tree Officer. In effect, for each such permission/application, a proper assessment would need to be carried out at the site., Currently, application for such felling of trees is made in accordance with Rule 4 of the Guidelines. The format prescribed in Form‑B requires the applicant to specify for each tree which is sought to be felled: its girth measured at a height of 1.35 metres from ground level, the intended use of felled trees, the purpose of the land after felling of trees, and appreciation of the species‑wise number of trees existing at the site, amongst others. For verification of the detailed data to be provided in the prescribed format, it would require the Tree Officer to visit the site and assess the factual position., There may be occasions where rare species of trees may be sought to be felled. The more solitary a tree, the greater its significance. Therefore, the responsibility of protecting and nurturing the solitary tree is far greater upon the Tree Officer and the authorities concerned. A tree is a living being. It must be given at least a last look and accorded a final inspection before a decision is taken to permit its felling or sanction extensive amputation of its live branches. In this regard, this court has noted and directed, in its order dated 28.04.2022 in Contempt Case (C) 851/2021, inter alia, that the previous order shows that the Tree Officer has permitted a fully grown tree of about 25‑30 years age with a girth of roughly 200 cm, abutting the road and private land, to be cut down. The Tree Officer must explain whether he inspected the site and assessed the tree before granting permission. Permission is sought under the Delhi Preservation of Trees Act, in which 'preservation' of trees is the primary objective. The Tree Officer is a repository of public faith and trust, that trees which form an essential part of people's lives are not allowed to be cut needlessly or wantonly. The statutory duty cast upon the Tree Officer necessarily requires assessment of the necessity to cut a tree for the project for which the permission is sought. A site visit would be prudent. The shortage of Tree Officers and necessary support staff cannot be an excuse for granting permission for cutting down trees in the city. The adverse environmental impact of such denudation is well‑known. Compensatory afforestation, if at all carried out on the fringes of the city far‑removed from congested areas of human habitation, where the solitary decades‑old tree once stood as a carbon‑sump‑cum‑fresh oxygen generator‑cum‑shade provider‑cum‑visual respite, can hardly be of any respite or actual compensation. In any case, it will take decades for the compensatory forests to be of any reckonable benefit. In this capital city with its ever‑burgeoning population, the cacophony of voices and rampant commercialisation of every other street robbing the residents of the familiar ambience of their residential neighbourhood, the ever‑increasing motor vehicular traffic, the choking air‑pollution and the ever‑creeping concretisation, trees hold out as welcome and assuring living entities of hope, sanity, environmental redemption and even companionship. The more solitary the tree, the greater its significance. Therefore, the responsibility of protecting and nurturing the solitary tree is far greater upon the Tree Officer and the authorities concerned., In the circumstances, it would be appropriate that the Tree Officers give due consideration to transplantation of each tree which is sought to be cut, before granting any further permission for cutting of trees. This would entail inspection of the trees sought. The reason for grant or denial of permission would have to be spelt out in the order of the Tree Officer along with photographs of each tree., Since Section 9(2) of the Act mandates the Tree Officer to inspect the tree and conduct an enquiry as may be requisite, a visit to the site is imperative for assessing the situation comprehensively. In this regard, the Supreme Court has observed on 10.05.2023 that with each redevelopment of a house or building abutting city streets, if applications are moved by the land‑owning agency such as the Public Works Department, Delhi Development Authority, Municipal Corporation of Delhi, Cantonment Board, etc., for cutting of trees in front of private houses, and permission to cut the trees is granted simply on the averment that the trees were coming in the way of reconstruction, then sooner or later the city will be bereft of tree‑lined avenues and a large part of its green cover. This would be a creeping legalised genocide of trees and Delhi would soon resemble nothing but a mass of concrete., Paragraphs 9 and 10 of the aforesaid guidelines are ex facie incongruent with the provisions of the Delhi Preservation of Trees Act, 1994. In case there is an exigency for cutting down trees for large public projects or if it is absolutely necessary to cut down trees on a private entity’s application, it will require the Tree Officer to personally inspect the site, assess the situation, apply his mind and, if required, permit the cutting of a tree but only after having first exhausted all possibility of saving the tree and ensuring its transplantation, along with compensatory afforestation., Section 33 of the Delhi Preservation of Trees Act gives powers to the Government to give directions, general or special, to the Tree Officers and other officers regarding the discharge of their functions and for effectively carrying out actions in support of the objectives of the Act. The Guidelines for Pruning of Trees are essentially an informal administrative handbook to assist the Officers of the Department of Forests and Wildlife. They are not a part of any statute. They do not carry a statutory flavour or character. The sole objective of the DPT Act is preservation of trees. The granting of permission for cutting, girdling, lopping, pollarding, etc., of trees is to be strictly regulated and such permission is not to be granted for the asking. Yet the Guidelines permit cutting/pruning of branches of trees having a girth/circumference up to 15.7 cm. How did this figure come about? What is the scientific basis for reaching that figure? What is the justification for applying the same thickness of branches to all species of trees in Delhi? Some trees may have slim trunk girth. For such specific species and otherwise too, the entire tree could well be wantonly pruned to reduce to a mere pole‑like structure, as has been done to some trees in this case. Photographs of some instances of ex facie unjustified pruning were reproduced in the previous order dated 11.04.2023 and are reproduced hereunder too., How can there be justification for such pruning? These are glaring examples of misuse of the generous permission granted under the Guidelines to prune trees/tree branches having a girth up to 15.7 cm. Had the Tree Officer been accorded an occasion to inspect these trees before they were pruned, perhaps the hapless trees would not have suffered their current fate. Was it examined or ascertained by the Tree Officer or any authority whether the branches of the many trees which were pruned were dead, diseased, dying, split, broken or constituted a threat to life or property or obstructed traffic? Was it ascertained whether the extensive and possibly indiscriminate cutting of branches with live foliage would not adversely affect the health of the trees? Was it examined, ascertained or estimated that the trees had been or could be over‑pruned? If the answer to the last question is affirmative, then the subsequent dangers that would afflict the health and life of the fully‑grown trees should have been minimised. Was it inspected if there was concretisation around the tree‑trunk, which could be affecting or had compromised their health and stability, therefore, the pruning of such trees would neither be advisable nor prudent? The answer to all these fundamental and relevant questions is negative. The Guidelines run through all these concerns and grant a general permission for pruning of tree branches having a girth of up to 15.7 cm. The occasion for the Tree Officer to inspect or assess the health of the trees, the necessity or justification for pruning has been sought to be scuttled and taken away by the Guidelines. What is the scientific methodology employed to measure that the pruning was done only up to a girth of 15.7 cm and not beyond, is not known or specified. Evidently, it is a mere guesswork, an estimation. The Guidelines are not a statutory enactment or an amendment of the statute. They cannot abridge the mandate of the statute. Even a Regulation or Rule, which are creatures of a statute, cannot limit, undo or transgress the powers, objective and mandate of the statute itself., Under the Act there is no sanction for the 15.7 cm girth of a tree branch to be cut. Therefore, this figure is incongruous with the statutory requirements as mandated under Sections 8 and 9 of the Delhi Preservation of Trees Act. The so‑called permission granted under the Guidelines seeks to over‑reach the statute. The Guidelines are in conflict with the DPT Act, they are arbitrary and illegal. Consequently, the permission for pruning, presumed to be granted under the Guidelines, would be of no consequence and shall always be non‑existent. Therefore, the Guidelines permitting regular pruning of branches of trees with girth up to 15.7 cm without specific prior permission of the Tree Officer are hereby set aside. The only permission that can be granted for pruning, etc., is under Section 9 of the Act., In view of the above, no pruning of trees will be permitted in Delhi except in accordance with the Delhi Preservation of Trees Act. It will be open to the respondents to frame guidelines and/or rules as may be requisite. Regarding the petitioner's reservations about the personal observations in the impugned order, the court is of the view that in the light of substantive orders having been passed in this petition, the personal observations stand superseded and are of no relevance; they stand expunged. The learned counsel for the petitioner says that, upon instructions, he would seek to withdraw his petition before the National Green Tribunal. The petitioner would always have the liberty to pursue all remedies as may be available to him in law., The learned counsel for the Tree Officer submits that he has received instructions as well as copies of the record of the proceedings on various dates before the Tree Officer. He assures the court that the matters will be expeditiously proceeded with in accordance with law., In W.P (C) 12271/2022 titled Rajiv Dutta vs. Government of National Capital Territory of Delhi & Others, this court directed that complainants and public‑spirited persons who bring to the notice of the Tree Officer, Deputy Conservator of Forests, any harm to trees or breach of statute shall be required to be heard apropos the complaint made or otherwise be kept informed throughout the proceedings. There should be no denial of natural justice in proceedings initiated before the Tree Officer. Therefore, with respect to the conduct of quasi‑judicial proceedings, imparting refresher courses to the Tree Officers and Deputy Conservator of Forests would be of assistance. The Government of National Capital Territory of Delhi is directed to arrange refresher training courses as may be requisite, which would also cover the conduct of hearings through hybrid mode, e‑filing of petitions, replies, etc., for the benefit of Tree Officers, Deputy Conservator of Forests and other Officers of the Department, at the Delhi Judicial Academy, within four weeks of receipt of this order., The petition stands disposed‑off in terms of the above.
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High Court of Punjab and Haryana at Chandigarh\nCivil Writ Petition No. 3531 of 2022 Arti Devi, Petitioner versus Union Territory Chandigarh and others, Respondents. Present: Ashdeep Singh, Advocate for the petitioner. The present petition has been filed under Articles 226 and 227 of the Constitution of India, seeking issuance of a writ in the nature of mandamus, directing the respondents to provide medical treatment to the petitioner who is five months pregnant and who has been denied medical treatment by respondents No. 3 to 5 on the ground that she is a resident of Punjab and that in Government Medical Services Hospital‑16 Chandigarh, patients from outside Chandigarh cannot get treatment, along with certain other prayers. It is submitted by counsel for the petitioner that the petitioner is five months pregnant and needs medical treatment and health advice for the well‑being of her fetus and for her own well‑being as well. For that purpose the petitioner has approached respondent No. 2 – Hospital. The petitioner was registered as a patient at the hospital for treatment as well. However, subsequently on 10.02.2022 the petitioner was turned out from the hospital refusing her the treatment on the ground that she was not a resident of Union Territory Chandigarh. The counsel has submitted that there is no such law under which Government Hospitals in the Union Territory could deny the facility of treatment to the petitioner, in the normal course, only on the ground that she was not a resident of the Union Territory Chandigarh., Mr. Aditya Pal Singla, Assistant Government Pleader for the Union Territory Chandigarh, accepts notice on behalf of the respondents – Union Territory Chandigarh. The counsel for the respondents – Union Territory Chandigarh has not been able to point out any law which entitles respondent No. 2 – Hospital to drive out patients by denying them medical treatment only because they are not residents of Union Territory Chandigarh. Otherwise, the petitioner cannot be subjected to discrimination only on the ground of her place of residence. That, in fact, is a direct violation of the fundamental right of the petitioner. Denying her treatment on the above‑said ground also violates her right to life and liberty without there being any justifiable reason. This decision or even tendency of Government medical facility cannot be countenanced by any means. Hence, respondent No. 2 deserves a direction to provide the necessary treatment and advice, in the normal course, as and when the petitioner approaches respondent No. 2. Accordingly, the present petition is disposed of with a direction to respondents to provide necessary medical treatment and advice to the petitioner, in the normal course, as and when she approaches the respondent hospital. The counsel for the Union Territory Chandigarh is requested to take the petitioner today itself to the hospital and to ensure that the necessary treatment of the petitioner is started with immediate effect. The copy of this order shall be supplied to counsel for the petitioner under the signature of the Bench Secretary.
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These petitions have been filed challenging the order dated 24.03.2021 passed by Respondent No.1 under Section 26(1) of the Competition Act, 2002 (hereinafter referred to as the Act), forming a prima facie opinion of the violation of Section 4 of the Act by the petitioners, and directing the Director General of Respondent No.1 to cause an investigation to be made into the WhatsApp 2021 Update to its Terms and Privacy Policy., The petitioner in W.P.(C) No.4378/2021 provides a software‑based application for sending and receiving a variety of media texts, photos, videos, calls, etc., by using the internet. It was acquired by Respondent No.2 (petitioner in W.P.(C) No.4407/2021) in the year 2014. WhatsApp is claimed to be used by more than a billion users throughout the world and over 400 million users in India., Prior to 25.08.2016 the agreement between WhatsApp and its users was governed by the Terms of Service and Privacy Policy dated July 2012. On 25.08.2016 WhatsApp updated its Terms of Service and Privacy Policy (hereinafter referred to as the 2016 Update). It is claimed that WhatsApp users prior to the 2016 Update were given a one‑time opportunity to opt‑out of Facebook using their WhatsApp account information. Users who joined WhatsApp after the release of the 2016 Update, however, were not offered this opt‑out option., The 2016 Update was challenged in a Public Interest Litigation, W.P.(C) 7663/2016 titled Karmanya Singh Sareen & Anr. vs. Union of India & Ors., before the Competition Commission of India. The Commission, by its judgment dated 23.09.2016, disposed of the petition with the following observations and directions: \20. Having regard to the complete security and protection of privacy provided by Respondent No.2 initially while launching WhatsApp and keeping in view that the issue relating to the existence of an individual's right of privacy as a distinct basis of a cause of action is yet to be decided by a larger Bench of the Supreme Court [vide K.S. Puttaswamy (supra)], we consider it appropriate to issue the following directions to protect the interest of the users of WhatsApp: i) If the users opt for completely deleting WhatsApp account before 25.09.2016, the information/data/details of such users should be deleted completely from WhatsApp servers and the same shall not be shared with Facebook or any one of its group companies. ii) So far as the users who opt to remain in WhatsApp are concerned, the existing information/data/details of such users up to 25.09.2016 shall not be shared with Facebook or any one of its group companies. iii) The Respondent Nos.1 and 5 shall consider the issues regarding the functioning of the Internet Messaging Applications like WhatsApp and take an appropriate decision at the earliest as to whether it is feasible to bring the same under the statutory regulatory framework.\, The above judgment has been challenged by the petitioner in the referred petition before the Supreme Court of India in SLP(C) No.804/2017; however, no interim order has been passed therein and the petition remains pending for adjudication., On 4 January 2021, WhatsApp announced that it was updating the Terms of Service and Privacy Policy (hereinafter referred to as the 2021 Update)., WhatsApp claims that the 2021 Update does not in any manner negate the choice of the user made under the 2016 Update and that it is applicable only to the users who had opted‑in to the 2016 Update as also the users who joined WhatsApp services after the 2016 Update agreeing to those terms. It is further asserted that the 2021 Update is aimed at providing users with further transparency about how WhatsApp collects, uses and shares data and to inform the users about how optional business messaging features work when certain business messaging features become available to them. It is further asserted that the 2021 Update does not expand WhatsApp's ability to share data with Facebook and does not impact the privacy of personal messages of WhatsApp users; it provides more specifics on how WhatsApp works with businesses that use Facebook or third‑parties to manage their communications with users on WhatsApp., WhatsApp further asserts that its 2021 Update has been challenged in several judicial fora, including before the Competition Commission of India and the Supreme Court of India. It makes specific reference to the two petitions pending before the Competition Commission of India, namely W.P.(C) No.677/2021 titled Chaitanya Rohilla vs. Union of India & Ors., and W.P.(C) No.1355/2021 titled Dr. Seema Singh & Anr. vs. Union of India & Anr. The intervener Internet Freedom Foundation has filed applications seeking to restrain WhatsApp from implementing the 2021 Update; those applications are pending before the Supreme Court of India., The petitioners (WhatsApp and Facebook) challenge the impugned order passed by Respondent No.1 on the ground that, despite the judicial challenge to the 2021 Update pending before the Supreme Court of India and before the Competition Commission of India, Respondent No.1 has wrongly taken suo moto action and passed the impugned order., Mr. Harish Salve, senior counsel for WhatsApp LLC, and Mr. Rohatgi, senior counsel for Facebook Inc., submit that the issue of whether the sharing of information available with WhatsApp with Facebook violates the right to privacy of the users protected under Article 21 of the Constitution of India, and whether the petitioners are under any legal obligation to provide an opt‑out facility to the users of WhatsApp, are issues pending adjudication before the Supreme Court of India and the Competition Commission of India. Accordingly, they contend that Respondent No.1 should refrain from adjudicating these issues until they are pronounced upon by the said courts. They rely on the Supreme Court judgment in Competition Commission of India vs. Bharti Airtel Limited & Ors., (2019) 2 SCC 521 in support of their submission that Respondent No.1 should be restrained from proceeding with the investigation until the pending issues are decided., Mr. Salve further submits that, even otherwise, the challenge to the 2016 Update was rejected by Respondent No.1 by its order dated 01.06.2017 in Case No. 99/2016, Shri Vinod Kumar Gupta v. WhatsApp Inc. The same is pending adjudication in an appeal before the National Company Law Appellate Tribunal (Compt. Appeal (AT) No.13/2017) titled Vinod Kumar Gupta vs. Competition Commission of India & Anr. Therefore, Respondent No.1 cannot reopen issues already decided and should have awaited the outcome of the appeal., Mr. Sibal, senior counsel appearing for WhatsApp, adds that the investigation could not have been ordered by Respondent No.1 without first coming to a prima facie finding on the claim that the 2021 Update does not expand WhatsApp's ability to share data with Facebook and that the said update intends to provide users with further transparency about how WhatsApp collects, uses and shares data., Mr. Rohatgi, senior counsel appearing for Facebook, while reiterating the submissions of Mr. Salve, submits that Facebook could not have been involved in the investigation directed by the impugned order. He states that Facebook Inc. is merely the parent company of WhatsApp LLC, however, the 2021 Update relates only to the Terms of Service and Privacy Policy offered by WhatsApp alone. Consequently, the update is not applicable to Facebook users and Facebook could not have been added as a party in such an investigation into WhatsApp's terms and conditions of service to its users., The Additional Solicitor General appearing for Respondent No.1 submits that, apart from the issues pending before the Supreme Court of India in SLP(C) No.804/2017 or before the Competition Commission of India in the petitions mentioned hereinabove, Respondent No.1 is examining the 2021 Update for any violation of the provisions of Section 4 of the Competition Act, 2002. He submits that the Commission is examining whether the excessive data collection by WhatsApp and the use of the same have any anti‑competitive implications. The concentration of data in the hands of WhatsApp may itself raise competition concerns, thereby resulting in violation of the provisions of Section 4 of the Act., Placing reliance on the Supreme Court judgment in Competition Commission of India v. Steel Authority of India Ltd. & Anr., (2010) 10 SCC 74, he submits that the impugned order has been passed under Section 26(1) of the Act and it does not determine any rights or obligations of the parties; it is only administrative in nature and is not appealable. He further submits that, in fact, the petitioners in the present petitions were not even entitled to a notice or hearing before the passing of the order under Section 26(1) of the Act and therefore cannot be heard in challenge to such an order., The scope and ambit of an order passed under Section 26(1) of the Act has been authoritatively explained by the Supreme Court in Steel Authority of India Ltd. (supra), holding: \38. In contradistinction, the direction under Section 26(1) after formation of a prima facie opinion is a direction simpliciter to cause an investigation into the matter. Issuance of such a direction, at the face of it, is an administrative direction to one of its own wings departmentally and is without entering upon any adjudicatory process. It does not effectively determine any right or obligation of the parties to the lis. Closure of the case causes determination of rights and affects a party i.e. the informant; resultantly, the said party has a right to appeal against such closure of case under Section 26(2) of the Act. On the other hand, mere direction for investigation to one of the wings of the Commission is akin to a departmental proceeding which does not entail civil consequences for any person, particularly, in light of the strict confidentiality that is expected to be maintained by the Commission in terms of Section 57 of the Act and Regulation 35 of the Regulations. 39. Wherever, in the course of the proceedings before the Commission, the Commission passes a direction or interim order which is at the preliminary stage and of preparatory nature without recording findings which will bind the parties and where such order will only pave the way for final decision, it would not make that direction as an order or decision which affects the rights of the parties and therefore, is not appealable. 91. The jurisdiction of the Commission, to act under this provision, does not contemplate any adjudicatory function. The Commission is not expected to give notice to the parties i.e. the informant or the affected parties and hear them at length, before forming its opinion. The function is of a very preliminary nature and in fact, in common parlance, it is a departmental function. At that stage, it does not condemn any person and therefore, application of audi alteram partem is not called for. Formation of a prima facie opinion departmentally (the Director General, being appointed by the Central Government to assist the Commission, is one of the wings of the Commission itself) does not amount to an adjudicatory function but is merely of administrative nature. At best, it can direct the investigation to be conducted and report to be submitted to the Commission itself or close the case in terms of Section 26(2) of the Act, which order itself is appealable before the Tribunal and only after this stage, there is a specific right of notice and hearing available to the aggrieved/affected party. Thus, keeping in mind the nature of the functions required to be performed by the Commission in terms of Section 26(1), we are of the considered view that the right of notice or hearing is not contemplated under the provisions of Section 26(1) of the Act. 93. We may also usefully note that the functions performed by the Commission under Section 26(1) of the Act are in the nature of preparatory measures in contrast to the decision‑making process. That is the precise reason that the legislature has used the word 'direction' to be issued to the Director General for investigation in that provision and not that the Commission shall take a decision or pass an order directing inquiry into the allegations made in the reference to the Commission.\, A reading of the above clearly shows that at this stage Respondent No.1 was merely to form a prima facie opinion for directing an investigation to be carried out by the Director General. It does not have to give any final conclusions on the merit of the alleged violation or on the defence of the petitioners. The order passed under Section 26(1) of the Act is purely administrative in nature and does not entail any consequence on the civil rights of the petitioners. In fact, the impugned order could have been passed without notice or granting an opportunity of hearing to the petitioners. Though Respondent No.1 is to give reasons in the impugned order, in my opinion, as it is not to give any conclusive findings but only to form a prima facie opinion to order an investigation, it need not deal with all the submissions of the petitioners in detail., In the present set of petitions, Respondent No.1 has, inter alia, given the following reasons for directing an investigation to be carried out by its Director General into the 2021 Update of WhatsApp: (i) The Commission concluded that WhatsApp is dominant in the relevant market for over‑the‑top (OTT) messaging apps through smartphones in India. As such, in light of the holding of the Commission in the Harshita Chawla case, there is no occasion to separately examine the issue of relevant market and dominance of WhatsApp therein, when there is no change in the market construct or structure since the order of August 2020 and the announcement of the new policy by WhatsApp on 4 January 2021, which itself seems to emanate out of the entrenched dominant position of WhatsApp. The Commission has noted that competing apps such as Signal and Telegram witnessed a surge in downloads after the policy announcement, but this has not resulted in any significant loss of users for WhatsApp. Network effects working in favour of WhatsApp reinforce its position of strength and limit its substitutability with other functionally similar apps/platforms. (ii) Having considered the overarching terms and conditions of the new policy, the Commission is of prima facie opinion that the take‑it‑or‑leave‑it nature of the privacy policy and terms of service of WhatsApp and the information‑sharing stipulations merit a detailed investigation in view of the market position and market power enjoyed by WhatsApp. The Commission has also taken note of WhatsApp's submission that the 2021 Update does not expand its ability to share data with Facebook and that the update intends to provide users with further transparency about how WhatsApp collects, uses and shares data. The veracity of such claims will be examined during the investigation by the Director General. (iii) WhatsApp is the most widely used app for instant messaging in India. A communication network/platform becomes more valuable as more users join it, thereby benefiting from network effects. The OTT messaging platforms are not interoperable; communication between two users is enabled only when both are registered on the same network. Consequently, the value of a messaging app increases with the number of friends and acquaintances joining the network. In India, network effects have indubitably set in for WhatsApp, underpinning its position of strength and limiting its substitutability. This creates a strong lock‑in effect for users, making switching to another platform difficult and often meaningless unless a significant proportion of their contacts also switch. Despite increased downloads of competing apps like Signal and Telegram, WhatsApp's user base has not suffered a significant loss. The second largest player in the relevant market is Facebook Messenger, also a Facebook Group company. Thus, the conduct of WhatsApp/Facebook merits detailed scrutiny., The Commission further observes that users, as owners of their personalised data, are entitled to be informed about the extent, scope and precise purpose of sharing such data by WhatsApp with other Facebook companies. However, the Privacy Policy and Terms of Service contain many information categories that are too broad, vague and unintelligible. For example, categories such as \service‑related information\, \mobile device information\, \payments or business features\ are undefined. The policy frequently uses indicative language such as \includes\, \such as\, \for example\, suggesting that the scope of sharing may extend beyond the expressly mentioned categories. This opacity, vagueness, open‑endedness and incomplete disclosures hide the actual data cost incurred by a user. It is also unclear whether historical data of users will be shared with Facebook companies and whether data will be shared for WhatsApp users who are not present on other Facebook apps such as Facebook or Instagram. Users are not likely to expect their personal data to be shared with third parties except for the limited purpose of providing or improving WhatsApp's service. Yet the policy appears to allow data sharing for purposes such as customising, personalising and marketing the offerings of other Facebook companies. Under competitive market conditions, users would have sovereign rights and control over decisions related to sharing their personalised data, which is not the case with WhatsApp users. There appears to be no justifiable reason why users should not have control or say over such cross‑product processing of their data by way of voluntary consent, rather than as a precondition for availing WhatsApp's services., Previously, users had control over sharing of their personal data with Facebook through an opt‑out provision available for 30 days in earlier policy updates. The same option has not been made available this time. Consequently, users are required to accept the unilaterally dictated take‑it‑or‑leave‑it terms by a dominant messaging platform in their entirety, including the data‑sharing provisions, if they wish to avail the service. Such consent cannot signify voluntary agreement to all specific processing or use of personalised data, as the present policy does not provide appropriate granular choice, either upfront or in fine print, to object to or opt‑out of specific data‑sharing terms, which prima facie appear unfair and unreasonable for WhatsApp users., On careful consideration, the conduct of WhatsApp in sharing users' personalised data with other Facebook companies, in a manner that is neither fully transparent nor based on voluntary and specific user consent, appears prima facie unfair to users. The purpose of such sharing appears to be beyond users' reasonable and legitimate expectations regarding quality, security and other relevant aspects of the service. One of the stated purposes of data sharing is targeted advertising on other Facebook products, indicating an intent to build user profiles through cross‑linking of data collected across services. Such data concentration may raise competition concerns as a competitive advantage. The impugned conduct of data‑sharing by WhatsApp with Facebook amounts to degradation of non‑price parameters of competition such as quality, resulting in objective detriment to consumers without acceptable justification. This conduct prima facie amounts to the imposition of unfair terms and conditions upon WhatsApp users, in violation of Section 4(2)(a)(i) of the Act., Given the pronounced network effects enjoyed by WhatsApp and the absence of any credible competitor in the instant messaging market in India, WhatsApp appears to be in a position to compromise quality in terms of protection of individualised data and may deem it unnecessary to retain user‑friendly alternatives such as opt‑out choices, without fear of erosion of its user base. Moreover, users who do not wish to continue with WhatsApp may have to lose their historical data, as porting such data to competing apps is cumbersome and time‑consuming, and network effects make switching difficult. This enhances switching costs for users who may want to shift to alternatives due to the policy changes. Today's consumers value non‑price parameters of services—quality, customer service, innovation—as equally or more important than price. Reduction in consumer data protection and loss of control over personalised data can be taken as a reduction in quality under antitrust law. Lower data protection by a dominant firm can lead to exploitation of consumers and exclusionary effects, as WhatsApp/Facebook could further entrench their position and leverage it in neighbouring or unrelated markets such as the display advertising market, creating insurmountable entry barriers for new entrants., Data and data analytics have immense relevance for the competitive performance of digital enterprises. Cross‑linking and integration of user data can further strengthen data advantage and reinforce market power of dominant firms. For Facebook, processing data collected from WhatsApp can supplement consumer profiling done through direct data collection on its platform, allowing it to track users and their communication behaviour across a vast number of locations and devices outside the Facebook platform. Therefore, the impugned data‑sharing provision may have exclusionary effects also in the display advertising market, potentially undermining the competitive process and creating further barriers to market entry, in violation of the provisions of Section 4(2)(c) and (e) of the Act. As per the 2021 update to the privacy policy, a business may give a third‑party service provider such as Facebook access to its communications to send, store, read, manage, or otherwise process them for the business. It may be possible that Facebook will condition provision of such services to businesses with a requirement for using the data collected by them. The Director General may also investigate these aspects during its investigation., A reading of the above would show that Respondent No.1 has prima facie concluded that WhatsApp is dominant in the relevant market for over‑the‑top (OTT) messaging apps through smartphones in India; due to lack of or restricted interoperability between platforms, users may find it difficult to switch to other applications without a significant loss; there is opacity, vagueness, open‑endedness and incomplete disclosures in the 2021 Update on vital information categories; concentration of data in WhatsApp and Facebook may raise competition concerns; data‑sharing amounts to degradation of non‑price parameters of competition., It cannot therefore be said that the issues raised by Respondent No.1 are beyond its jurisdiction under the Act or that there is a total lack of jurisdiction in Respondent No.1. In fact, this has not even been pleaded by the petitioners before the Competition Commission of India. The question, therefore, is whether Respondent No.1 should, in deference to the petitions pending before the Supreme Court of India and before the Competition Commission of India, have refrained from taking suo moto cognizance and directing an investigation to be made by the Director General.
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Though some of the issues may substantively be in issue before the Supreme Court of India and this Court of India in the above‑referred petitions, in my opinion, the respondent cannot be an inviolable rule, nor is one pleaded by the petitioners, that merely because an issue may be pending before the Supreme Court of India or before the High Court of India, the Commission would get divested of the jurisdiction that it otherwise possesses under the Competition Act, 2002. The reliance of the petitioner on the judgment of Bharti Airtel Ltd. (supra) in this regard is ill‑founded., In the said case, the Supreme Court of India was considering the scope and ambit of two specialised regulators, that is the respondent No. 1 herein and the Telecom Regulatory Authority of India (TRAI), to deal with a complaint regarding denial of Points of Interconnection to one of the telecom operators. The Supreme Court explained the jurisdiction to the two regulators as under: “85. It is for the aforesaid reason that the Competition Commission of India (CCI) is entrusted with duties, powers and functions to deal with three kinds of anti‑competitive practices mentioned above. The purpose is to eliminate such practices which are having adverse effect on competition, to promote and sustain competition and to protect the interest of the consumers and ensure freedom of trade, carried on by the other participants, in India. For the purpose of conducting such an inquiry, CCI is empowered to call any person for rendering assistance and/or produce the records/material for arriving at even the prima facie opinion. The regulations also empower CCI to hold conferences with the persons/parties concerned, including their advocates/authorised persons. 99. TRAI is, thus, constituted for orderly and healthy growth of telecommunication infrastructure apart from protection of consumer interest. It is assigned the duty to achieve the universal service which should be of world‑standard quality on the one hand and also to ensure that it is provided to the customers at a reasonable price, on the other hand. In the process, purpose is to make arrangements for protection and promotion of consumer interest and ensure fair competition. It is because of this reason that the powers and functions which are assigned to TRAI are highlighted in the Statement of Objects and Reasons. Specific functions which are assigned to TRAI, amongst others, include ensuring technical compatibility and effective inter‑relationship between different service providers; ensuring compliance of licence conditions by all service providers; and settlement of disputes between service providers.”, The Supreme Court further held as under: “103. We are of the opinion that as TRAI is constituted as an expert regulatory body which specifically governs the telecom sector, the aforesaid aspects of the disputes are to be decided by TRAI in the first instance. These are jurisdictional aspects. Unless TRAI finds fault with the Interconnection Dispute Officers (IDOs) on the aforesaid aspects, the matter cannot be taken further even if we proceed on the assumption that CCI has the jurisdiction to deal with the complaints/information filed before it. It needs to be reiterated that RJIL has approached the Department of Telecommunications (DoT) in relation to its alleged grievance of augmentation of Points of Interconnection which in turn had informed RJIL vide letter dated 6‑9‑2016 that the matter related to interconnectivity between service providers is within the purview of TRAI. RJIL thereafter approached TRAI; TRAI intervened and issued show‑cause notice dated 27‑9‑2016; and post issuance of show‑cause notice and directions, TRAI issued recommendations dated 21‑10‑2016 on the issue of interconnection and provisioning of Points of Interconnection to RJIL. The sectoral authorities are, therefore, seized of the matter. TRAI, being a specialised sectoral regulator and also armed with sufficient power to ensure a fair, non‑discriminatory and competitive market in the telecom sector, is better suited to decide the aforesaid issues. After all, RJIL's grievance is that interconnectivity is not provided by the IDOs in terms of the licences granted to them. The TRAI Act and Regulations framed thereunder make detailed provisions dealing with intense obligations of the service providers for providing Points of Interconnection. These provisions also deal as to when, how and in what manner Points of Interconnection are to be provisioned. They also stipulate the charges to be realised for Points of Interconnection that are to be provided to another service provider. Even the consequences for breach of such obligations are mentioned. 104. We, therefore, are of the opinion that the High Court is right in concluding that till the jurisdictional issues are straightened and answered by TRAI which would bring on record findings on the aforesaid aspects, CCI is ill‑equipped to proceed in the matter. Having regard to the aforesaid nature of jurisdiction conferred upon an expert regulator pertaining to this specific sector, the High Court is right in concluding that the concepts of “subscriber”, “test period”, “reasonable demand”, “test phase and commercial phase rights and obligations”, “reciprocal obligations of service providers” or breaches of any contract and/or practice, arising out of the TRAI Act and the policy so declared, are the matters within the jurisdiction of the Authority/Telecom Dispute Settlement and Appellate Tribunal (TDSAT) under the TRAI Act only. Only when the jurisdictional facts in the present matter as mentioned in this judgment particularly in paragraphs 72 and 102 above are determined by TRAI against the IDOs, the next question would arise as to whether it was a result of any concerted agreement between the IDOs and the Cellular Operators Association of India (COAI) supporting the IDOs in that endeavour. It would be at that stage CCI can go into the question as to whether violation of the provisions of the TRAI Act amounts to “abuse of dominance” or “anti‑competitive agreements”. That also follows from the reading of Sections 21 and 21‑A of the Competition Act, as argued by the respondents. 105. The issue can be examined from another angle as well. If CCI is allowed to intervene at this juncture, it will have to necessarily undertake an exercise of returning the findings on the aforesaid issues/aspects which are mentioned in paragraph 102 above. Not only TRAI is better equipped as a sectoral regulator to deal with these jurisdictional aspects, there may be a possibility that the two authorities, namely TRAI on the one hand and CCI on the other, arrive at conflicting views. Such a situation needs to be avoided. This analysis also leads to the same conclusion, namely, in the first instance it is TRAI which should decide these jurisdictional issues, which come within the domain of the TRAI Act as they not only arise out of the telecom licences granted to the service providers, the service providers are governed by the TRAI Act and are supposed to follow various regulations and directions issued by TRAI itself.”, The Supreme Court, however, rejected the argument that TRAI would have exclusive jurisdiction to deal with the matters involving anti‑competitive practices to the exclusion of the respondent No. 1, observing as under: “108. Such a submission, on a cursory glance, may appear to be attractive. However, the matter cannot be examined by looking into the provisions of the TRAI Act alone. Comparison of the regimes and purpose behind the two Acts becomes essential to find an answer to this issue. We have discussed the scope and ambit of the TRAI Act in the given context as well as the functions of TRAI. No doubt, we have accepted that insofar as the telecom sector is concerned, the issues which arise and are to be examined in the context of the TRAI Act and related regime need to be examined by TRAI. At the same time, it is also imperative that the specific purpose behind the Competition Act is kept in mind. This has been taken note of and discussed in the earlier part of the judgment. As pointed out above, the Competition Act frowns at the anticompetitive agreements. It deals with three kinds of practices which are treated as anti‑competitive and are prohibited. To recapitulate, these are: (a) where agreements are entered into by certain persons with a view to cause an appreciable adverse effect on competition; (b) where any enterprise or group of enterprises, which enjoys a dominant position, abuses the said dominant position; and (c) regulating the combination of enterprises by means of mergers or amalgamations to ensure that such mergers or amalgamations do not become anti‑competitive or abuse the dominant position which they can attain. 109. CCI is specifically entrusted with duties and functions, and in the process empowered as well, to deal with the aforesaid three kinds of anti‑competitive practices. The purpose is to eliminate such practices which are having adverse effect on competition, to promote and sustain competition and to protect the interest of the consumers and ensure freedom of trade, carried on by other participants, in India. To this extent, the function that is assigned to CCI is distinct from the function of TRAI under the TRAI Act. The learned counsel for the appellants are right in their submission that CCI is supposed to find out as to whether the IDOs were acting in concert and colluding, thereby forming a cartel, with the intention to block or hinder entry of RJIL in the market in violation of Section 3(3)(b) of the Competition Act. Also, whether there was an anti‑competitive agreement between the IDOs, using the platform of COAI. CCI, therefore, is to determine whether the conduct of the parties was unilateral or it was a collective action based on an agreement. Agreement between the parties, if it was there, is pivotal to the issue. Such an exercise has to be necessarily undertaken by CCI. In Haridas Exports, this Court held that where statutes operate in different fields and have different purposes, it cannot be said that there is an implied repeal of one by the other. The Competition Act is also a special statute which deals with anti‑competition. It is also to be borne in mind that if the activity undertaken by some persons is anti‑competitive and offends Section 3 of the Competition Act, the consequences thereof are provided in the Competition Act.”, The Court observed: “112. Obviously, all the aforesaid functions not only come within the domain of CCI, TRAI is not at all equipped to deal with the same. Even if TRAI also returns a finding that a particular activity was anti‑competitive, its powers would be limited to the action that can be taken under the TRAI Act alone. It is only CCI which is empowered to deal with the same anti‑competitive act from the lens of the Competition Act. If such activities offend the provisions of the Competition Act as well, the consequences under that Act would also follow. Therefore, contention of the IDOs that the jurisdiction of CCI stands to be ousted cannot be accepted. Insofar as the nuanced exercise from the standpoint of the Competition Act is concerned, CCI is the experienced body in conducting competition analysis. Further, CCI is more likely to opt for structural remedies which would lead the sector to evolve a point where sufficient new entry is induced thereby promoting genuine competition. This specific and important role assigned to CCI cannot be completely wished away and the “comity” between the sectoral regulator (i.e., TRAI) and the market regulator (i.e., CCI) is to be maintained. 113. The conclusion of the aforesaid discussion is to give primacy to the respective objectives of the two regulators under the two Acts. At the same time, since the matter pertains to the telecom sector which is specifically regulated by the TRAI Act, balance is maintained by permitting TRAI in the first instance to deal with and decide the jurisdictional aspects which can be more competently handled by it. Once that exercise is done and there are findings returned by TRAI which lead to the prima facie conclusion that the IDOs have indulged in anti‑competitive practices, CCI can be activated to investigate the matter going by the criteria laid down in the relevant provisions of the Competition Act and take it to its logical conclusion. This balanced approach in construing the two Acts would take care of Section 60 of the Competition Act as well. 114. We, thus, do not agree with the appellants that CCI could have dealt with this matter at this stage itself without availing the inquiry by TRAI. We also do not agree with the respondents that, insofar as the telecom sector is concerned, jurisdiction of CCI under the Competition Act is totally ousted. In a nutshell, that leads to the conclusion that the view taken by the High Court is perfectly justified. Even the argument of the learned Additional Solicitor General is that the exercise of jurisdiction by CCI to investigate an alleged cartel does not impinge upon TRAI's jurisdiction to regulate the industry in any way. It was submitted that the promotion of competition and prevention of competitive behaviour may not be high on the change of sectoral regulator which makes it prone to “regulatory capture” and, therefore, CCI is competent to exercise its jurisdiction from the standpoint of the Competition Act. However, having taken note of the skilful exercise which TRAI is supposed to carry out, such a comment vis‑à‑vis TRAI may not be appropriate. No doubt, as commented by the Planning Commission in its report of February 2007, a sectoral regulator may not have an overall view of the economy as a whole, which CCI is able to fathom. Therefore, our analysis does not bar the jurisdiction of CCI altogether but only pushes it to a later stage, after TRAI has undertaken necessary exercise in the first place, which it is more suitable to carry out.”, A reading of the above judgment would clearly show that, in spite of having come to the conclusion that TRAI is the expert regulator constituted for the purposes of ensuring an orderly and healthy growth of telecommunication infrastructure services, the Supreme Court of India held that TRAI would not be the sole repository of jurisdiction to deal even with the Competition Act and violations thereunder. However, the Supreme Court found that the jurisdictional facts and obligations under the TRAI Act, 1997 and the Regulations framed thereunder were first to be determined by TRAI and therefore, held that the respondent No. 1 had to await the outcome of the proceedings before TRAI before proceeding with the investigation ordered by it under Section 26(1) of the Competition Act, 2002., In the present case, the issue as to whether the 2016 Update/2021 Update announced by WhatsApp in any manner infringes upon the Right of Privacy of the users guaranteed under Article 21 of the Constitution of India is pending adjudication before the Supreme Court of India and this Court of India. The question regarding the 2016 Update/2021 Update not giving an option to opt‑out is also an issue before the Supreme Court of India and this Court of India. However, the same cannot necessarily mean that during the pendency of those petitions, the respondent No. 1 is completely denuded of the jurisdiction vested in it under the Competition Act, 2002 or that it must necessarily await the outcome of such proceedings. Therefore, it is not a question of lack of jurisdiction of the respondent No. 1, but rather one of prudence and discretion., It must be remembered that any finding by the respondent No. 1 on any of the issues would always be subject to the findings of the Supreme Court of India or of this Court of India in the above‑mentioned petitions and would be binding on the respondent No. 1. Such is the case in every proceeding before the respondent No. 1. Nevertheless, while such issues are being determined by the Supreme Court of India or by the High Court of India, it cannot be stated that the respondent No. 1 has to necessarily await the outcome of such proceedings before acting further under its own jurisdiction. The respondent No. 1 has to proceed within its own jurisdiction, applying the law as it stands presently. In this regard, I may only note the submission of the learned Additional Solicitor General appearing for the respondent No. 1 that the scope of the inquiry before the respondent No. 1 is not confined only to the issues raised before the Supreme Court of India or before this Court of India, but is much vaster in nature., In State of Maharashtra and Another versus Sarva Shramik Sangh, Sangli and Others; (2013) 16 SCC 16, the Supreme Court of India in relation to the Industrial Disputes Act, 1947, observed as under: “27. It is, however, contended on behalf of the appellant that the said undertaking was being run by the Irrigation Department of the first appellant, and the activities of the Irrigation Department could not be considered to be an ‘industry’ within the definition of the concept under Section 2(j) of the Industrial Disputes Act. As noted earlier, the reconsideration of the wide interpretation of the concept of ‘industry’ in Bangalore Water Supply and Sewerage Board (supra) is pending before a larger Bench of this Court. However, as of now we will have to follow the interpretation of law presently holding the field as per the approach taken by this Court in State of Orissa v. Dandasi Sahu (supra), referred to above. The determination of the present pending industrial dispute cannot be kept undecided until the judgment of the larger Bench is received.” (Emphasis supplied)., Similarly, in P. Sudhakar Rao and Others versus U. Govinda Rao and Others, (2013) 8 SCC 693, the Supreme Court of India observed that the pendency of a similar matter before a larger Bench did not prevent the Supreme Court from dealing with the issue on merit., The Division Bench of the Supreme Court of India in Union of India and Another versus V.K. Vashisht; judgment dated 19‑12‑2012 in Writ Petition (Civil) No. 5036/2012 observed on the question of effect of a reference to the larger Bench as under: “14. With regard to the contention that a similar matter is pending before a Larger Bench of the Supreme Court, it would be sufficient to state that reference to a Larger Bench does not lead to an inescapable conclusion that such matters be kept in abeyance. In a recent case reported as Ashok Sadarangani and Another versus Union of India and Others, AIR 2012 SC 1563, the Supreme Court of India has observed: ‘19. As was indicated in Harbhajan Singh’s case (supra), the pendency of a reference to a larger Bench does not mean that all other proceedings involving the same issue would remain stayed till a decision was rendered in the reference. The reference made in Gian Singh’s case (supra) need not, therefore, detain us. Till such time as the decisions cited at the Bar are not modified or altered in any way, they continue to hold the field.’”, Though the above‑mentioned judgments are in relation to issues pending before the larger Bench of the Supreme Court of India, in my opinion, they show that even during such pendency, the other courts may and should continue to decide the cases and apply the law as it then prevails. This is so, as mere pendency of a reference before the larger Bench does not denude the other courts of their jurisdiction to decide the matter before them. Similarly, merely because of the pendency of the above proceedings before the Supreme Court of India and before this Court of India, the respondent No. 1 cannot be said to be bound to necessarily hold its hands and not exercise the jurisdiction otherwise vested in it under the statute., Maybe, it would have been prudent for the respondent No. 1 to have awaited the outcome of the above‑referred petitions before the Supreme Court of India and before this Court of India; however, merely for its decision not to wait, the impugned order cannot be said to be without jurisdiction or so perverse as to warrant being quashed by this Court of India in exercise of its extraordinary jurisdiction., I may also note that the challenge to the WhatsApp 2021 Update has been raised before the Supreme Court of India only in the form of applications filed by the petitioner and intervenor therein. It is not stated by the petitioners herein if the Supreme Court of India has taken cognizance of these applications or passed any order thereon. As far as the petitions before this Court of India are concerned, the same are also at a preliminary stage. The petitioners, instead of filing any application in these petitions (before the Supreme Court of India or before this Court of India) seeking appropriate clarification/relief, have filed an independent challenge to the impugned order. The same, in my opinion, is not sustainable., As far as the 2016 Update having been upheld by respondent No. 1 in Vinod Kumar Gupta (supra) or by this Court of India in Karmanya Singh Sareen (supra), it need only be noted that presently there is nothing on record to presume that the respondent No. 1 shall act contrary to the same. In any case, these orders are also pending challenge before the National Company Law Appellate Tribunal and before the Supreme Court of India respectively., As far as the submission of Facebook on its impleadment in the investigation is concerned, the same is only stated to be rejected. A reading of the impugned order passed by the respondent No. 1 itself shows that Facebook shall be an integral part of such investigation and the allegations in relation to sharing of data by WhatsApp with Facebook would necessarily require the presence of Facebook in such an investigation., In view of the above, I find no merit in the present petitions. The same are dismissed. The parties shall bear their own costs.
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Reserved on: 7th June 2023. Pronounced on: 12th June 2023. Through: Mr. Vikas Pahwa, Senior Advocate with Mr. Dhruv Gupta, Mr. Manik Dhingra and Mr. Prabhav Palli, Advocates versus Through: Mr. Zoheb Hossain with Mr. Ankit Bhatia, Mr. Vivek Gurnani, Mr. Kartik Sabharwal, Advocates with Ms. Bhanu Priya, Jogender., The present application under Section 439 of the Code of Criminal Procedure, 1973 read with Sections 45 and 65 of the Prevention of Money Laundering Act, 2002 has been filed by the applicant petitioner seeking interim bail for the petitioner in relation to Enforcement Case Information Report HIU‑II/14/2022 registered under Sections 3 and 4 of the Prevention of Money Laundering Act at the Central Bureau of Investigation., The petitioner formed a partnership firm Indo Spirits with one Arun Ramachandran Pillai and one Prem Rahul Manduri for the wholesale L‑l license under the Delhi Excise Policy, 2021‑22. As per the license, the company of the petitioner, Indospirit Distribution Limited (wherein the petitioner had 38.27 percent shareholding) got 35 percent in the said firm, Arun Ramachandran Pillai got 32.5 percent and Prem Rahul Manduri got 32.5 percent. On 29th October 2021, Indo Spirits applied for the wholesale L‑l license and was granted the same on 8th November 2021 by the Delhi Excise Department. The firm then commenced its business operations from 17th November 2021 in terms of Excise Policy 2021‑22. During this period, several manufacturers appointed the firm Indo Spirits as their wholesale distributor in Delhi under the new Excise Policy. The new Excise Policy, 2021‑22 came to be challenged on various grounds., Subsequently, on 17th August 2022, the Central Bureau of Investigation registered FIR No. RC0032022A0053 under Sections 120B and 477A of the Indian Penal Code and Section 7 of the Prevention of Corruption Act, 1988 on the complaint of the Lieutenant Governor, Government of National Capital Territory of Delhi against the petitioner and other accused persons regarding irregularities committed in the framing and implementation of the excise policy of the Government of National Capital Territory of Delhi for the year 2021‑22., The Central Bureau of Investigation conducted searches on several premises in Delhi and across the country, including the residential and business premises of the petitioner, which also led to seizures of the assets of the petitioner. Consequently, the Enforcement Directorate registered an Enforcement Case Information Report bearing No. ECIR/HIU‑II/14/2022., The role ascribed to the petitioner in the prosecution complaint is that there are advance kickbacks of around Rs 100 crore that were paid to public servants in this conspiracy between political persons and government officers, causing a total loss of Rs 2,873 crore to the exchequer of the Government of National Capital Territory of Delhi. The petitioner, along with other accused, has key roles in the commission of the offence of money laundering as they were involved directly or indirectly in the process or activities relating to the proceeds of crime or its concealment, possession, acquisition, use and claiming it to be untainted property., The petitioner was arrested in the present case on 28th September 2022. The learned Delhi Trial Court took cognizance of the predicate offences vide its order dated 15th December 2022 and of the offences alleged under the Enforcement Case Information Report vide order dated 20th December 2022., During the pendency of the trial of the matter arising out of the Enforcement Case Information Report, the petitioner was sought and was granted interim bail on 28th February 2023 on medical grounds for undertaking surgery for removal of gall bladder stones and for the treatment of his back pain and other ailments. Since the petitioner was advised to undergo another surgery for his lower back, he sought an extension of interim medical bail and the same was granted by the learned Delhi Trial Court vide order dated 18th April 2023 till 1st May 2023. The petitioner has been on interim bail since 28th February 2023 in constructive judicial custody and by way of the instant application he is seeking extension of his interim bail on account of his deteriorating medical condition., Mr. Vikas Pahwa, learned senior counsel appearing on behalf of the petitioner drew the attention of the Delhi High Court to the ailments suffered by the petitioner by submitting a comprehensive medical note which is as follows: (a) The petitioner has been hospitalized five times and has had four surgeries or medical procedures in the last 60 days, including a 15‑day hospitalization in Tihar Jail. (b) The petitioner is suffering from Prolapsed Intervertebral Disc of the lower back since 2020, involving multiple level disc prolapse at L3/L4, L4/L5 and L5/S1, severe lower back pain, bilateral lower limb radiculopathy, significant nerve root impingement and partial recovery expected post‑surgery, and listhesis at L4‑L5 level where the vertebra has slipped forward causing pain. (c) He is also suffering from cervical spondylitis with prolapsed intervertebral disc at C5‑C6 level and bilateral weakness in the arms. (d) There are recurrent urinary tract infections and occasional urinary incontinence. (e) He underwent cholecystectomy on 9th March 2023 for gallbladder stone formation. (f) The petitioner has Grade 1 fatty liver and cardiac arrhythmia, sinus bradycardia and ECG changes – T wave inversion. (g) Discectomy with spinal instrumentation and stabilization surgery took place on 8th May 2023, during which four titanium pedicle screws held together by two titanium rods were inserted in his spinal vertebrae. He has been advised bed rest for two months, postoperative rehabilitation including physiotherapy under an expert in‑house team, limited ambulation, avoidance of forward bending, prolonged sitting, twisting and lifting of any weight, and an extended period of physiotherapy and assisted care to prevent weakened muscles, increased risk of re‑injury, spinal instability and formation of scar tissue. (h) Non‑adherence to the advice can lead to complications such as loosening of the implant, infection, poor wound healing, epidural hematoma and irreversible neurological damage, loss of bowel control or paralysis., It is further submitted that the petitioner is under constant consultation and treatment of specialists and is suffering from debilitating pain and serious medical conditions, most of which, if not attended to and treated properly under regular monitoring, will cause irreversible damage. The petitioner must have continuity in treatment, needs to be in constant supervision and care of his family members and requires an attendant; if he is sent back to custody it would not be possible for him to continue with the level of care and supervision he requires. Moreover, as mandated in the health advisory, the petitioner shall avoid forward bending, lifting weights and prolonged sitting, which would not be possible to prevent if he is sent back to custody., The learned senior counsel further submitted that the petitioner has a precarious health condition, is sick and infirm and dependent on specialized medical treatment for his well‑being., The learned senior counsel for strengthening his arguments relied upon the following judgments: (a) A Coordinate Bench of the Delhi High Court in Kewal Krishna Kumar v. Enforcement Directorate, 2023 SCC OnLine Del 1547, while granting bail after perusing the medical records and the need for an attendant, observed that the senior medical officer on 13‑02‑2023 opined that the applicant needs an attendant on a regular basis for timely medicines, that he has suffered multiple episodes of seizures and that the medical board stated the applicant is stable with medication. The court further held that the applicant is not in a position to take his regular dosage of medicines, which is a condition precedent for his survival, and that the attendant is required as the applicant has had multiple episodes of seizures. The court also noted that the medical report dated 28‑01‑2023 showed seizure disorder, MRI suggestive of diffuse age‑related cerebral atrophy with white matter ischemic demyelination, and that the seizures have become more frequent, making the applicant more vulnerable to injuries such as hemorrhage, for which the dosage of medication has been increased. The court concluded that the infirmities in a senile stage combined with constant attendant support, frequent seizures and abnormal behavioural disorder make the applicant infirm under the proviso to Section 45(1) of the Prevention of Money Laundering Act., The Punjab and Haryana High Court in Pranjil Batra v. Directorate of Enforcement, CRM‑M‑23705‑2022 (O&M), vide order dated 4th November 2022, granted bail to the accused having multiple ailments and requiring monitoring, care and attention which ordinarily is not available in jail. The court held that obesity, as in the case of the petitioner who weighs 153 kilograms, is itself a disease that becomes the root cause of several other diseases, reducing the body's capacity to fight ailments. The jail doctor or a civil hospital may not be fully equipped to handle a patient with multiple co‑morbidities, and therefore the petitioner falls within the exception of being “sick” as carved out in Section 45 of the Act and is entitled to be released on bail., A Coordinate Bench of the Delhi High Court in Devki Nandan Garg v. Directorate of Enforcement, 2022 SCC OnLine Del 3086, considered the serious health condition of the petitioner along with serious co‑morbidities and granted bail, holding that the applicant continues to suffer from serious co‑morbidities including a serious heart condition and a non‑functional kidney, and that, being aged, sick and infirm, the application needs to be allowed., The learned senior counsel for the petitioner submitted that the petitioner has been granted interim bail on medical grounds by the Delhi Trial Court vide orders dated 28th February 2023 and 18th April 2023 after being satisfied of the twin conditions of Section 45(1) of the Prevention of Money Laundering Act and after consideration of the petitioner’s medical condition, putting him under the category of sick or infirm as per the provision., It is further submitted that the petitioner has never misused the liberty granted to him by the Delhi Trial Court and has complied with all the conditions imposed while releasing him on interim bail., The petitioner has clean antecedents and would not flee from justice, and is willing to abide by all the orders and directions passed by this Court., The learned senior counsel for the petitioner finally submitted that the petitioner/applicant is suffering from life‑threatening diseases and therefore requires immediate and best medical treatment., It is further submitted that a medical board was constituted at the All India Institute of Medical Sciences for medical examination of the petitioner vide order of the Coordinate Bench of the Delhi High Court dated 29th May 2023. The medical report dated 3rd June 2023 stated that Mr. Sameer Mahendru’s condition is stable and he has made considerable progress from his last assessment at AIIMS, but the stability does not mean that the diseases suffered by the petitioner are not life‑threatening in nature., It is further submitted that the co‑accused in the case, P. Sarathi Chandra Reddy, has been granted regular bail by a Coordinate Bench of this Court in the judgment titled P. Sarathi Chandra Reddy v. Directorate of Enforcement, Bail Application 1266/2023 dated 8th May 2023 on medical grounds. The Coordinate Bench held that the respondent department has not brought any material to show that the petitioner is a flight risk, that the right to life includes the right to live a healthy life, and that a sick or infirm person has a right to adequate and effective treatment. The last medical report of the petitioner dated 03‑05‑2023 shows that the petitioner is in a bad state and can be put into the category of sick/infirm. The court admitted bail on furnishing a personal bond of Rs 1,00,000 with two sureties of the like amount, subject to conditions., It is submitted that the judgment granting regular bail to P. Sarathi Chandra Reddy has attained finality and has not been challenged by the respondent., It has been further submitted by the learned senior counsel that the health condition of the petitioner is far more severe and worse off than that of the co‑accused and his case is clearly more severe., Hence, in view of the foregoing discussion it is submitted that the petitioner is entitled to interim bail on medical grounds., Per contra, Mr. Zoheb Hossain, learned counsel for the Enforcement Directorate, submitted that as per the proviso to Section 45(1) of the Prevention of Money Laundering Act, it is the discretion of the court to grant bail to persons falling under the categories mentioned therein, and that discretion must be exercised based on the facts and circumstances of each case. He submitted that the sickness contemplated by the proviso must involve a risk or danger to the life of the accused, and that the facts of the present case do not warrant this discretionary relief., The counsel relies on the medical report dated 3rd June 2023 submitted by the medical board constituted at AIIMS in pursuance of the direction given by this Court vide order dated 29th May 2023, which states that at the point of current assessment, Mr. Sameer Mahendru’s condition is stable, he has made considerable progress from his last assessment on 26th May 2023 and his pain has decreased significantly, although he has chronic backache for many years and is already under treatment., It is submitted that as per the report, the condition of the petitioner was found to be stable and that his pain had decreased significantly. It is further submitted that if the disease of the person is life‑threatening but his condition is found to be stable, he should not be entitled to be enlarged on medical bail., The learned counsel for strengthening his arguments placed reliance on the following judgments: (i) Asha Ram v. State of Rajasthan, SLP (Crl) 6202/2016, wherein the Supreme Court of India refused bail on the basis of stability of medical condition, observing that the petitioner’s condition was not such a serious condition to require transfer to another jail or specialized treatment. (ii) A Coordinate Bench of the Delhi High Court in Surjeet v. State (Govt. of NCT of Delhi), 2021 SCC OnLine Del 228, observed that when the condition of an accused is stable and can be properly managed by medication, interim bail on medical grounds need not be granted. (iii) The Bombay High Court in Rajkishor Sunnidhi Dash v. State of Maharashtra, 2020 SCC OnLine Bom 11261, similarly rejected interim bail on the grounds of stable health, holding that the applicant’s overall health was moderately stable and no ground existed to grant relief., The learned counsel for the respondent submitted that the petitioner has not been cooperative during the investigation and has been evasive in his statements, that he tried to hide relevant information from the Enforcement Directorate, and that he has destroyed his mobile phones four times in the last five months of the Delhi Liquor Scam, indicating destruction of evidence., It has been further submitted that the application by the petitioner for an extension of interim bail on medical grounds was dismissed by the Coordinate Bench of this Court on 27th April 2023., The learned counsel for the respondent contended that Section 45 of the Prevention of Money Laundering Act is a mandatory provision and cannot be dispensed with in the present case. He drew the attention of the Delhi High Court to the landmark judgment of Vijay Madanlal Choudhary v. Union of India, 2022 SCC OnLine SC 929, wherein the Supreme Court of India upheld the provisions of the Prevention of Money Laundering Act, stating that the object of the Act is to punish the offender proportionately and to create a deterrent effect, and that money‑laundering is a serious threat to the financial system and sovereignty of the country., The counsel further submitted that the petitioner is involved in a heinous crime and has not satisfied the twin conditions enumerated in Section 45(1) of the Prevention of Money Laundering Act and therefore, interim bail may not be granted to him., The learned senior counsel appearing on behalf of the petitioner in his rejoinder vehemently opposed the arguments of the respondent, submitting that the respondent/Enforcement Directorate has not been consistent in opposing the bail applications of other accused persons who have been involved in similar offences under Sections 3 and 4 of the Prevention of Money Laundering Act in the same case. The co‑accused P. Sarathi Chandra Reddy has been granted regular bail by a Coordinate Bench of this Court which remains unchallenged by the Enforcement Directorate and has attained finality, whereas in the instant case the Enforcement Directorate has placed strong objections despite the severe medical condition., The Court heard the learned counsel for the parties and perused the record., The point before adjudication of this Court is whether the petitioner is entitled to interim bail as being sick or infirm in terms of the proviso to Section 45(1) of the Prevention of Money Laundering Act., Section 45. Offences to be cognizable and non‑bailable. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, no person accused of an offence under this Act shall be released on bail or on his own bond unless (i) the Public Prosecutor has been given an opportunity to oppose the application for such release; and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail: Provided that a person who is under the age of sixteen years, or is a woman or is sick or infirm, or is accused either on his own or along with other co‑accused of money laundering a sum of less than one crore rupees may be released on bail, if the Special Court so directs., For proper adjudication of the matter, it is appropriate to reproduce Section 45(1) of the Prevention of Money Laundering Act as above., To appreciate the legislative intent of Section 45(1) of the Prevention of Money Laundering Act, reference can be made to Devaki Nandan Garg v. Directorate of Enforcement, wherein relaxations were given for a certain class of people and it was observed that the stringent twin conditions of bail need not be satisfied if the person seeking bail falls within those relaxations or exceptions. The Coordinate Bench held that a bare perusal of the Statement of Objects and Reasons of the Prevention of Money Laundering Act shows that the inclusion of the above conditions for grant of bail as a proviso to Section 45(1) elucidates the legislature’s intent to incorporate relaxations for persons below sixteen years of age, a woman, or one who is sick or infirm., The above position was noted by the Supreme Court of India in Gautam Kundu v. Directorate of Enforcement, (2015) 16 SCC 1, particularly paragraph 34, which reads: “We note that admittedly the complaint is filed against the appellant on the allegations of committing the offence punishable under Section 4 of the Prevention of Money Laundering Act. The contention raised on behalf of the appellant that no offence under Section 24 of the SEBI Act is made out against the appellant, which is a scheduled offence under the Prevention of Money Laundering Act, needs to be considered from the materials collected during the investigation by the respondents.”
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There is no order as yet passed by a competent court of law, holding that no offence is made out against the appellant under Section 24 of the Securities and Exchange Board of India Act and it would be noteworthy that a criminal revision praying for quashing the proceedings initiated against the appellant under Section 24 of the Securities and Exchange Board of India Act is still pending for hearing before the High Court of India. We have noted that Section 45 of the Prevention of Money Laundering Act will have overriding effect on the general provisions of the Code of Criminal Procedure in case of conflict between them. As mentioned earlier, Section 45 of the Prevention of Money Laundering Act imposes two conditions for grant of bail, specified under the said Act. We have not missed the proviso to Section 45 of the said Act which indicates that the legislature has carved out an exception for grant of bail by a Special Court when any person is under the age of 16 years or is a woman or is sick or infirm. Therefore, there is no doubt that the conditions laid down under Section 45-A of the Prevention of Money Laundering Act would bind the High Court of India as the provisions of special law having overriding effect on the provisions of Section 439 of the Code of Criminal Procedure for grant of bail to any person accused of committing an offence punishable under Section 4 of the Prevention of Money Laundering Act, even when the application for bail is considered under Section 439 of the Code of Criminal Procedure., Thus, the proviso to Section 45(1) of the Prevention of Money Laundering Act carves out an exception from the rigours of Section 45 for persons who are sick or infirm. Once a person falls within the proviso of Section 45(1), he need not satisfy the twin conditions under Section 45(1) as elucidated in the dicta of Gautam Kundu case [Gautam Kundu v. Directorate of Enforcement (2015) 16 Supreme Court Cases 1 : (2016) 3 Supreme Court (Criminal) 603]., Proviso to Section 45(1) is analogous to Section 437 of the Code of Criminal Procedure and the intent of Section 437 of the Code of Criminal Procedure as a welfare legislation can be imputed to Section 45(1) of the Prevention of Money Laundering Act. The Honourable Supreme Court of India in Satender Kumar Antil v. Central Bureau of Investigation, (2022) 10 Supreme Court Cases 51 stated the relevance and purpose of the proviso containing bail provision and relaxation for certain classes. The Honourable Court held that: Section 437 of the Code empowers the Magistrate to deal with all the offences while considering an application for bail with the exception of an offence punishable either with life imprisonment or death triable exclusively by the Court of Sessions. The first proviso facilitates a court to conditionally release on bail an accused if he is under the age of 16 years or is a woman or is sick or infirm, as discussed earlier. This being a welfare legislation, though introduced by way of a proviso, has to be applied while considering release on bail either by the Court of Sessions or the High Court of India, as the case may be. The power under Section 439 of the Code is exercised against an order rejecting an application for bail and against an offence exclusively decided by the Court of Sessions. There cannot be a divided application of proviso to Section 437, while exercising the power under Section 439. While dealing with a welfare legislation, a purposive interpretation giving the benefit to the needy person being the intendment is the role required to be played by the court. We do not wish to state that this proviso has to be considered favourably in all cases as the application depends upon the facts and circumstances contained therein. What is required is the consideration per se by the court of this proviso among other factors., This Court in Kewal Krishna Kumar v. Enforcement Directorate, Neutral Citation No -2023:DHC:1925 interpreted the term sickness or infirmity for the grant of interim bail on medical grounds. The Coordinate Bench of this Court observed that: I am of the opinion that when the sickness or infirmity is of such a nature that it is life‑threatening and requires medical assistance that cannot be provided in penitentiary hospitals, then the accused should be granted bail under the proviso to Section 45(1) of the Prevention of Money Laundering Act., The Bombay High Court in Mahendra Manilal Shah v. Rashmikant Mansukhlal Shah, 2009 Supreme Court Online Bombay 2095 held that the nature of the sickness needs to be seen as to whether the accused can be treated in the government hospitals and custody. The relevant portion of the judgment is reproduced hereunder: (1) Pawan alias Tamatar v. Ramprakash Pandey ((2002) 9 Supreme Court Cases 166 : AIR 2002 Supreme Court 2224) (supra). In this case the Honourable Supreme Court of India has set aside the order of the Allahabad High Court granting bail to the accused inter alia on the ground that the allegation of ailment of the applicant is not specifically denied. The Honourable Supreme Court was of the view that the ailment of the accused was not of such a nature as to require him to be released on bail. It was observed that the accused can always apply to the jail authorities to see that he gets the required treatment. It was observed that in the application, the applicant had not stated that he still needs medical treatment or that he has not received proper medical treatment from the jail authorities., As observed in the various judgments cited above, mere admission of an accused to a hospital for medical treatment does not entitle an accused to obtain bail under the proviso to Section 437(1) of the Code of Criminal Procedure. In fact as observed earlier the said proviso cannot be resorted to in all cases of sickness. The Court must assess the nature of sickness and whether the sickness can be treated whilst in the custody or in government hospitals. The Court should also be satisfied that a case is made out by the Respondent Accused by himself or through the doctors attending to him that the treatment required to be administered to the Respondent Accused, considering the nature of his ailment cannot be adequately or efficiently be administered in the hospital in which he is at present and that he needs a better equipped or a speciality hospital., A cumulative consideration of the legislative intent of the Prevention of Money Laundering Act, and the precedents indicates that the proviso to Section 45(1) is a relaxation to the sick or infirm persons provided that the sickness or infirmity is so grave that it is life‑threatening and cannot be treated by jail hospitals., Vijay Agrawal Through Parokar v. Directorate of Enforcement, (Supra) requires attention in this scenario as the Coordinate Bench of this Court, in this case, linked the bail to sick or infirm with the fundamental right to live with dignity under Article 21 of the Constitution of India and held that the discretionary power of the court in granting bail in the offences of the Prevention of Money Laundering Act should not only be exercised at the last breathing stage but also when adequate treatment is warranted for the accused person with ailments. The Court held that: Howsoever serious the offence may be, the health condition of a human being is paramount. The custody during the period of investigation cannot be termed to be punitive in nature. The health concern of a person in custody has to be taken care of by the State and keenly watched by the judiciary. Every person has a right to get himself adequately and effectively medically treated. Article 21 of the Constitution not only gives a fundamental right to live but the right to live with dignity. Right to live a healthy life is also one of the facets of fundamental rights granted by the Constitution of this Country. The consistent view has been taken that if sufficient treatment is available in the jail then preferably the same should be provided to the prisoners. This Court firmly believes that a person in custody suffering from serious ailment should be given an opportunity to have the adequate and effective medical treatment. The discretion for granting the interim bail on medical ground may not be exercised only at a stage when the person is breathing last or is on the position that he may not survive. The kind of ailments which have been informed that the petitioner suffering from are really very painful and needs immediate redressal. Therefore this Court, without going into the merits of the case and only on a limited point that let the petitioner get his suitable neurology examination conducted, is inclined to grant the interim bail on medical grounds., In the present case, the medical report dated 3rd June 2023 stated as under: At the point of current assessment, Mr. Sameer Mahandru's condition is stable. He has made considerable progress from his last assessment at AIIMS (done on 26th May 2023) and his pain has decreased significantly. He has chronic backache for many years, for which he is already under treatment., In order to analyze the findings of the medical report, it is important to refer back to Kewal Krishna Kumar (Supra) where the Coordinate Bench of this Court has held that: However, the legislature has carved out another category i.e., infirm in the proviso to Section 45(1) of the Prevention of Money Laundering Act. Since sick and infirm are separated by 'or', consequently, a person who, though not sick but infirm would still be entitled to seek the benefit of the exception in the proviso to Section 45(1) of the Prevention of Money Laundering Act and vice‑versa. Mere old age does not make a person infirm to fall within Section 45(1) proviso. Infirmity is defined as not something that is only relatable to age but must consist of a disability which incapacitates a person to perform ordinary routine activities on a day‑to‑day basis. The lexicon meaning of infirm in Stroud's Judicial Dictionary of Words and Phrases, Eighth Edition connotes infirmity as some permanent disease, accident, or something of that kind (per Kekewich J., Re Buck, 65 L.J. 41). Though the medical report indicates that the condition of the petitioner is stable at the date of assessment and he is making progress, he is still eligible to be categorized under the term sick enumerated under proviso to Section 45(1) of the Prevention of Money Laundering Act due to the life‑threatening nature of the diseases with likelihood of causing irreversible injury to the petitioner., It is pertinent to note that the petitioner also falls under the term infirm as according to the interpretation of the Coordinate Bench of this Court in Kewal Krishna Kumar (Supra) observing that infirmity takes place if the person is incapacitated in performing ordinary routine activities on a day‑to‑day basis. The medical note submitted on behalf of the petitioner, to this effect, explicitly states that: Discectomy with spinal instrumentation and stabilization surgery took place on 8th May 2023 and in the surgery four titanium pedicle screws held together by two titanium rods have been inserted in his spinal vertebrae for which he has been advised: 1. Bed rest for 2 months. 2. Post operative rehabilitation protocol including physiotherapy under expert in‑house physiotherapy team and muscle rehabilitation program. 3. Limited ambulation. 4. Avoid forward bending, prolonged sitting, twisting, lifting of any weight. 5. Petitioner may require extended period of physiotherapy and assisted care to prevent the weakened muscles around spine, prevent increased risk of re‑injury, spinal stability and formation of scar tissue reducing range of motion and return of symptoms., Hence, the fact that the petitioner is unable to sit, bend forward, and not even able to lift any weight suggests the infirmity on the part of the petitioner to carry out day‑to‑day routine activities and not following the advice and the specialized treatment may lead to neurological damage to the petitioner., The conduct of the petitioner also warrants attention in the present scenario as the Coordinate Bench of this Court in Kewal Krishna Kumar (Supra) held that: Once the Applicant falls in the exception clause of Section 45(1) proviso, as in the present case by virtue being infirm, the Applicant need not satisfy the twin test of Section 45(1) of the Prevention of Money Laundering Act. However, the Applicant needs to satisfy the triple test under Section 437/439 of the Code of Criminal Procedure: i. Flight risk. ii. Influencing any witness. iii. Tampering with evidence., The petitioner has been granted interim bail on medical grounds by the Learned Trial Court on two occasions, 28th February 2023, and 18th April 2023 and there is nothing on record or in the submissions of learned counsel for the parties to show that the liberty granted to the petitioner has been misused by him or the opportunity has been exploited by him nor are there any allegations of influence exerted on any witness or tampering of evidence by the petitioner during his previous interim bails on medical grounds. Further, there is nothing brought on the record to show that the petitioner is a flight risk as well., It is pertinent to note that the co‑accused in the present case, Mr. P. Sarathi Chandra Reddy has been granted regular bail on 8th May 2023 in P. Sarathi Chandra Reddy v. Directorate of Enforcement, Bail Application 1266/2023 in view of his medical condition. The learned senior counsel for the petitioner has submitted that the respondent has been taking inconsistent stand in the bail applications of the co‑accused in the same case. However, this Court shall not deal with such allegations while adjudicating the instant application and shall limit itself to the submissions made, documents placed and the judicial precedents relied upon and then proceed to decide the case on merits., This Court is cognizant that as per the precedents of Neeru Yadav v. State of Uttar Pradesh, (2014) 16 Supreme Court Cases 508 and Sunder Lal v. State, 1983 Criminal Journal 736, that parity between the accused persons cannot become the sole criteria to grant bail and if bail is granted to similarly placed co‑accused persons without assigning any reasons then based on such bail orders merely on the ground of parity, the bail application should not be allowed. Parity can only be persuasive and cannot be binding but the medical condition of the petitioner, coupled with the unblemished conduct and the grant of regular bail to the co‑accused are reasons that are sufficient enough for this Court to grant interim bail to the petitioner for receiving specialized treatment., A status report has also been filed by the Enforcement Directorate verifying the medical documents filed along with the petition to be genuine and correct. The same was brought on record before the court on 24th April 2023 and again considered on 5th May 2023., The main ground for the opposition for grant of interim bail was the report of the medical board holding the condition of the petitioner to be stable but this Court is of the view that mere stability in the present condition is not reflective of the life‑threatening disease that the petitioner is suffering from which warrants immediate and best medical treatment., Health condition of a human being deserves utmost importance and right to health is one of the most significant dimensions of Article 21 of the Constitution of India. Every person has a right to get himself adequately and effectively treated. The exercise of discretion of the grant of bail is not to be exercised only as a last resort rather freedom is a cherished fundamental right., Hence, in view of the health conditions of the petitioner, the medical records being furnished on behalf of the petitioner and the same being verified by the Enforcement Directorate as authentic, the non‑denial of the condition of the petitioner which is worse than the co‑accused who has been granted regular bail, and on the perusal of all other precedents this Court finds that the petitioner is suffering from life‑threatening diseases warranting immediate medical attention and post‑operative care. This Court is of the opinion in view of the aforesaid discussion, the petitioner's case satisfies the test of the proviso to Section 45(1) of the Prevention of Money Laundering Act., This Court has also appreciated the other factors as required to be considered while granting bail to an accused. It is evident that there is nothing on record to show that the liberty granted to the petitioner has been misused by him during his previous interim bails and neither has he been found to be an absconder., In view of the entirety of the matter, the petitioner is admitted to interim bail for a period of six weeks on his furnishing a personal bond in the sum of Rs.10,00,000/- (Rupees Ten Lakh Only) with two sureties of the like amount to the satisfaction of the Trial Court concerned, subject to the following conditions: (i) That the petitioner shall not leave the limits of the hospital and his house, and under no circumstances shall leave the country; (ii) That he shall keep his mobile phone and its live location on at all times and he will share the mobile number, including updated, if any, and the live location with the Investigating Officer; (iii) That he shall not destroy or tamper with the evidence of this case and shall not influence any witness of the case, and shall not make any attempts to contact any co‑accused; (iv) That he shall not indulge in any criminal activities or commission of any offence of whatsoever nature and he shall not abuse the interim bail granted to him for any purposes; (v) That he shall mark his presence at the local police station every Monday till 25th July 2023; (vi) That he shall surrender before the Trial Court by 5 pm on 25th July 2023., The petitioner shall be released from jail forthwith and after the expiry of the interim bail period, he shall surrender before the Trial Court concerned before or at 5 pm on 25th July 2023., Copy of this order be sent to the Jail Superintendent /Trial Court for compliance., It is also made clear that this Court has not gone into the merits of the case and no expression made herein shall tantamount to be an expression on the merits of the case., In the terms as aforesaid, the application is disposed of., The order be uploaded on the website forthwith.
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Case: Writ Petition No. 7677 of 2020. Petitioner: Justice Anjani Kumar and another. Respondent: State of Uttar Pradesh and four others. Counsel for petitioner: Tarun Agrawal. Counsel for respondent: Chief Standing Counsel, Ankush Tandon, Honourable Shashi Kant Gupta, Judge; Honourable Pankaj Bhatia, Judge., This writ petition has been filed, inter alia, for the following relief: Issue a writ, order or direction in the nature of mandamus commanding respondent number two and four to restore possession of the property to the petitioners, being House number 27/13, Jawaharlal Nehru Road, Prayagraj, after evicting respondent number five and his family, in exercise of powers conferred by Rule 21(2)(i) and Rule 22(1) of the Uttar Pradesh Maintenance and Welfare of Parents and Senior Citizens Rules, 2014., The learned counsel for the petitioners submits that petitioner number one is a former judge of the Allahabad High Court and petitioner number two is his wife. The petitioners, who are senior citizens, have been illegally evicted from their house number 27/13, Jawaharlal Nehru Road, Prayagraj (hereinafter referred to as the disputed house). Apart from other properties, the disputed house is registered in the name of the petitioners., A number of allegations have been made by the petitioners against their son, respondent number five, namely Chandan Kumar. The petitioners contend that the name of petitioner number one is also recorded in the records of the Nagar Nigam, Prayagraj and that respondent number five has no right to evict the petitioners forcefully. The allegations made against respondent number five have been rebutted by him through a short counter‑affidavit which is taken on record., The matter was heard by Mister Tarun Agrawal, learned counsel for the petitioners, and Mister Anoop Trivedi, learned senior counsel assisted by Mister Ankush Tandon, learned counsel for respondent number five and learned standing counsel for the State respondents, and the record was perused. It is admitted that petitioners number one and two are senior citizens, respondent number five is their son, and petitioner number two is the registered owner of the disputed house. According to the petitioners, respondent number five has illegally evicted them from the house in dispute and they have prayed that possession may be restored to them., The petitioners have a remedy under the Uttar Pradesh Maintenance and Welfare of Parents and Senior Citizens Act, 2007 and the Uttar Pradesh Maintenance and Welfare of Parents and Senior Citizens Rules, 2014. Although the legislature has enacted the aforesaid laws, no mechanism has been provided for implementation of the orders passed thereunder. Considering the facts and circumstances of the case, the petitioners are granted liberty to file an appropriate application or petition under the Uttar Pradesh Maintenance and Welfare of Parents and Senior Citizens Act, 2007 and Rules, 2014 before respondent number two, the District Magistrate, Prayagraj, within ten days from today, together with a copy of this order and the relevant papers including the annexures annexed with the present writ petition., Respondent number five is directed to appear before the District Magistrate on 19 November 2020. Thereafter, the District Magistrate shall proceed with the matter and decide the aforesaid application or petition of the petitioners in accordance with law by a speaking and reasoned order after hearing the petitioners and respondent number five, addressing all the issues raised by the parties, within a period of two months from the date of receipt of the said application or petition., In case the petitioners feel aggrieved by the order of the District Magistrate, they are granted liberty to place a copy of the said order before the Allahabad High Court for perusal and for passing further orders. Learned counsel for the petitioners undertakes to serve a copy of the aforesaid application or petition upon respondent number five before filing the same before the District Magistrate. The petitioners shall send a copy of the application to respondent number five through speed post and also serve a copy thereof to his counsel, Mister Anoop Trivedi. Mister Anoop Trivedi assures that full cooperation shall be extended by respondent number five in deciding the aforementioned application or petition filed by the petitioners before the District Magistrate., This order has been passed with the consent of learned counsel for the parties. It is made clear that the Allahabad High Court has not expressed any opinion on the merits of the case and the concerned authority has to take a decision on its own merits, and the parties are free to raise all the issues before the District Magistrate., The matter is listed for further orders on 8 February 2021.
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State vs Umar Khalid, FIR No. 101/2020, Police Station Khajuri Khas (Crime Branch). Bail Application No. 506/2021. The case is under sections 109, 114, 147, 148, 149, 153-A, 186, 212, 353, 395, 427, 435, 436, 452, 454, 505, 34, 120-B of the Indian Penal Code, sections 3 and 4 of the Prevention of Damage to Public Property Act and sections 25 and 27 of the Arms Act. Present: Shri Manoj Chaudhary, Learned Special Public Prosecutor for the State along with Investigating Officer Inspector Sunil Kumar; Shri Trideep Pais, Senior Advocate along with Ms. Sanya Kumar and Ms. Rakshanda Deka, Learned Counsel for the accused Umar Khalid. I have heard arguments advanced at the bar by both sides and have perused the report filed in the matter, the main charge sheet and the supplementary charge sheet., The FIR was registered on the statement of Constable Sangram Singh, who stated that on 24 February 2020 at about 2.00 p.m., while on duty with other staff on main Karawal Nagar Road near Chand Bagh Pulia, a large crowd gathered and started pelting stones. He sought refuge in a nearby parking lot, but the mob broke open the shutters, thrashed the persons inside and set the parked vehicles on fire, including the complainant’s motorcycle. He managed to save his life. After registration of the FIR, further investigation was transferred to the Crime Branch by order of senior officers on 28 February 2020., During the investigation, inspection of the building of the principal accused Tahir Hussain and the adjoining area revealed a large amount of debris, stones, bricks, broken bottles, some glass bottles containing liquid, bullets and burnt articles scattered on the main Karawal Nagar Road. The building of the principal accused was used by the rioters for brick‑batting, stone‑pelting, and the throwing of petrol and acid bombs. Stones, bricks, glass bottles containing petrol with necks stuffed with cloth and other material, including catapults, were found on the third floor and rooftop of the principal accused’s house., Learned Senior Counsel for the applicant submitted that the applicant deserves parity with co‑accused Khalid Saifi, who was admitted to bail by this Court by detailed order dated 4 November 2020, and therefore the applicant is also entitled to bail on the ground of parity, as his role is identical. It was further submitted that the Honourable High Court recently enlarged three co‑accused persons—Riyasat Ali, Liyakat Ali and Shah Alam—on regular bail by common order dated 6 April 2021 (Bail Applications No. 2943/2020, 4174/2020 and 9/2021 respectively), and thereafter another co‑accused, Gulfam alias VIP, was admitted to bail by order dated 13 April 2021., The counsel argued that the applicant has been falsely implicated by the investigating agency on account of political vendetta to muzzle dissent. The applicant is about 33 years old, holds a Ph.D. from Jawaharlal Nehru University, Delhi, and his professional career has been derailed due to false implication in the present case as well as in FIR No. 59/2020 (investigated by the Special Cell of Delhi Police). He was initially arrested on 13 September 2020 in FIR No. 59/2020 and subsequently, on 1 October 2020, after seven months of registration of the present FIR, he was formally arrested in the present case. The applicant was not physically present at the scene of crime on the date of the alleged incident and therefore is neither visible in any CCTV footage nor identified by any witness as a member of the riotous mob. He has been roped into the matter merely on the basis of his own disclosure statement and the disclosure statements of co‑accused Tahir Hussain and Khalid Saifi. No recovery of any sort has been effected from the applicant., It is further argued that there is no material on record establishing any meeting between the principal accused Tahir Hussain, the applicant and Khalid Saifi, other than the fact that they were in the same area of Shaheen Bagh on 8 January 2020 without any criminal conspiracy. For the alleged offence of criminal conspiracy, the applicant is already facing trial in FIR No. 59/2020, and thus cannot be prosecuted for the same offence twice, which would violate Article 20(2) of the Constitution of India under the doctrine of double jeopardy. No other independent or legally admissible evidence of criminal conspiracy is available against the applicant., The learned counsel for the applicant referred to the following judgments: (1) Indra Dalal v. State of Haryana, (2015) 11 SCC 31 – disclosure statements are inadmissible in evidence unless they lead to recovery and cannot be relied upon to deny bail; (2) Rajesh Sharma v. Directorate of Revenue Intelligence, 2018 SCC OnLine Del 12372 – disclosure statements are not to be relied upon to deny bail; (3) Geedarwa alias Faiaz alias Md. Faiaz alias Mohammad Faiyaz Alam v. State of Bihar, 2020 SCC OnLine Pat 395 – disclosure statements not a ground to deny bail; (4) Avnish Jha v. State of Bihar, 2020 SCC OnLine Pat 699 – disclosure statements not a ground to deny bail; (5) Sanjay Chandra v. CBI, (2012) 1 SCC 40 – once the charge sheet is filed, custody is no longer required for further investigation and the accused is entitled to bail; (6) Navendu Babbar v. State of GNCT of Delhi, Bail Application No. 953/2020, decided on 18 June 2020 – continuation of investigation is not a valid ground to deny bail; (7) Devangana Kalita v. State, 2020 SCC OnLine Del 1092 – existence of multiple cases is not a valid ground to deny bail; (8) Prabhakar Tewari v. State of UP, (2020) SCC OnLine 75 – existence of multiple cases is not a valid ground to deny bail; (9) Ashok Sagar v. State, 2018 SCC OnLine Del – principles regarding grant of bail; (10) P. Chidambaram v. Directorate of Enforcement, 2019 SCC OnLine SC 1549 – if the triple test of not being a flight risk, no chance of tampering with evidence, and no apprehension of influencing witnesses is satisfied, bail should be granted; (11) Deepa Bajwa v. State & Ors. – supplementary statements cannot be used to fill gaps in the complaint; (12) State (Govt of NCT of Delhi) v. Nitin, 2019 SCC OnLine Del 7239 – supplementary statement recorded immediately after incident is given greater credence; (13) Pancho v. State of Haryana, (2011) 10 SCC 165 – confessions of co‑accused are not substantive evidence; (14) Prabhakar Tewari v. State of UP, Criminal Appeal No. 153/2020, decided on 24 January 2020 – delayed statements of witnesses cast doubt on the prosecution story and entitle the accused to bail., The applicant has a clean past and deep roots in society. He has cooperated with the investigating agency in both the present case and FIR No. 59/2020, and there is no possibility of his absconding. The alleged eyewitness, Shri Rahul Kasana, is a planted witness whose statement cannot be believed. No record shows that the applicant was ever in touch with the principal accused Tahir Hussain. The disclosure statements of Tahir Hussain and Khalid Saifi cannot be read against the applicant. Similarly, the alleged unsigned disclosure statement of the applicant cannot be used against him in view of the order dated 4 October 2020 passed by the learned Metropolitan Magistrate (Annexure A‑9, page 40 of the paper book). It is further argued that pre‑trial detention has been deprecated by the courts and bail is the rule, jail being the exception., The learned Special Public Prosecutor for the State submitted that the case is sensitive, involving riots that took place at or around the house of the principal accused Tahir Hussain. Investigation has revealed a deep‑rooted conspiracy that triggered communal riots in Delhi. A web of conspirators, instigators and rioters has been identified and several have been arrested. The riots were not impromptu but were conspired with the intent to create communal strife and to malign the image of the country under the guise of democratically opposing the Citizenship Amendment Act (CAA). The conspirators spread misinformation on the CAA and caused road blockades, which ultimately triggered the riots. The accused, in furtherance of criminal conspiracy, committed riots in the areas of Police Station Khajuri Khas and Police Station Dayalpur, creating terror among the public. They mobilized the mob by provoking religious feelings and provided logistical support such as lathis, dandas, stones, acids, knives, swords, firearms and pistols to eliminate members of the other community. The principal accused, Tahir Hussain, a Municipal Councillor, gathered persons from his community on religious grounds, promoted enmity and facilitated them to the rooftop of his building. The co‑accused were well known to him, some being close relatives, leading to a rapid meeting of minds., It is argued that a total of fifteen persons have been arrested, including the applicant, on the basis of identification by public witness Rahul Kasana. The Special Public Prosecutor presented the statement of PW Rahul Kasana, dated 27 September 2020, recorded under Section 161 of the Criminal Procedure Code, wherein the witness claimed to have seen the applicant meeting co‑accused Tahir Hussain and Khalid Saifi on the evening of 8 January 2020 at Shaheen Bagh, corroborating the applicant’s disclosure statement., The applicant is alleged to have been part of a large‑scale conspiracy hatched by the principal accused Tahir Hussain with other anti‑social elements, investigated by the Special Cell of Delhi Police in FIR No. 59/2020. Regular bail applications of three co‑accused persons—Rashid Saifi, Irshad Ahmed and Mohd. Rehan alias Arshad Pradhan—have already been dismissed by this Court by orders dated 1 September 2020, 8 October 2020 and 7 April 2021 respectively, and it is prayed that the present bail application also be dismissed., It is further submitted that although the charge sheet has been filed, the investigation is still in progress; many persons who were part of the riotous mob need to be identified and arrested, and more material may emerge. There is a risk that, if released on bail, the applicant may threaten witnesses who are residents of the same locality, and therefore dismissal of the bail application is prayed for., The Special Public Prosecutor referred to the following judgments: State v. Jaspal Singh Gill, 1984 AIR 1503 (date of decision 25 June 1984); Nirmal Singh Kahlon v. State of Punjab & Ors.; State of Maharashtra v. Kamal Ahmed, Mohd. Vakil Ansari & Ors., Criminal Appeal No. 445/2013; CBI v. V. Vijay Sai Reddy, Criminal Appeal No. 729/2013; Rajiv alias Monu v. State of NCT of Delhi, Criminal Appeal No. 192/2017 (date of decision 8 October 2018)., I have given thoughtful consideration to the arguments advanced at the bar. It is a matter of record that the prosecution has not established that the applicant was physically present at the scene of crime on the date of the incident. The applicant is not visible in any CCTV footage or viral video, nor has any independent public or police witness identified him at the scene. The CDR location of the applicant’s mobile phone has not been found at the scene. The applicant has been implicated solely on the basis of his own disclosure statement, the fourth disclosure statement of co‑accused Tahir Hussain and the disclosure statement of co‑accused Khalid Saifi. No recovery has been effected from the applicant pursuant to these statements. The Special Public Prosecutor’s argument that the applicant had regular contact with the co‑accused, as evidenced by CDR locations on 8 January 2020, does not establish a criminal conspiracy against the applicant. The statement of PW Rahul Kasana recorded under Section 161 of the Criminal Procedure Code merely mentions a meeting between the applicant, Tahir Hussain and Khalid Saifi on 8 January 2020, without disclosing its purpose. The same witness is also a witness in FIR No. 59/2020, where he did not make any adverse statement against the applicant on 21 May 2020, but later, on 27 September 2020, alleged a conspiracy. This inconsistency undermines the credibility of his testimony., The investigation in the present matter is complete and the charge sheet has been filed. The trial is likely to take a long time. The applicant has been in judicial custody since 1 October 2020. He cannot be incarcerated indefinitely merely because other persons who were part of the riotous mob still need to be identified and arrested., It is a matter of record that co‑accused Khalid Saifi has already been admitted to bail by this Court by detailed order dated 4 November 2020, and the Special Public Prosecutor has been unable to establish that the role assigned to the applicant is dissimilar to that of Khalid Saifi. Three other co‑accused—Riyasat Ali, Liyakat Ali and Shah Alam—were also admitted to bail by the Honourable High Court of Delhi by common order dated 6 April 2021, and subsequently Gulfam alias VIP was admitted to bail by this Court by detailed order dated 13 April 2021., Keeping in view the aforesaid facts, I find that the applicant deserves bail on the ground of parity with co‑accused Khalid Saifi., Accordingly, applicant Umar Khalid, son of Shri S.Q.R. Ilyas, is admitted to bail upon furnishing a personal bond of Rs. 20,000 (Rupees Twenty Thousand Only) with one surety of the same amount, to the satisfaction of the Court, subject to the condition that he shall not tamper with evidence or influence any witness, shall maintain peace and harmony in the locality, shall appear before the Court on every date of hearing, shall furnish his mobile number to the Station House Officer, Police Station Khajuri Khas upon release, shall ensure the mobile is in working condition, and shall install the Aarogya Setu app on his mobile phone., The application stands disposed of accordingly. It is clarified that nothing herein shall be construed as expressing any opinion on the final merits of the case. A copy of this order shall be sent to the Superintendent of the concerned jail as well as to the learned senior counsel for the applicant by electronic mode.
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These appeals involve a challenge to the constitutional validity of sub‑sections (7) and (8) of Section 4 introduced by the Kerala Motor Vehicles Taxation (Amendment) Act, 2005, Section 15 of the Kerala Motor Vehicles Taxation Act, 1976, and Section 8A of the Kerala Motor Transport Workers Welfare Fund Act, 1985, inserted by Act 23 of 2005., The thrust of the challenge is that the State Legislature, by amending the welfare legislation, has effectively linked the obligation to contribute to the workers’ welfare fund with the obligation to pay tax for operating motor vehicles. In other words, the welfare legislation is intertwined with the compensatory legislation introduced by the Amendment Act of 2005, and together they substantially encroach upon and override the relevant provisions of the Central legislation, that is, the Motor Vehicles Act, 1988, thereby paralyzing stage and goods carriage operations or undermining the effectiveness of the transport permit provided under the 1988 Act., The 1976 Act was enacted by the State Legislature when the erstwhile Motor Vehicles Act, 1939, was in force. It was enacted under Entry 56 (Taxes on goods and passengers carried by road or on inland waterways) and Entry 57 (Taxes on vehicles, whether mechanically propelled or not, suitable for use on roads, including tramcars, subject to the provisions of Entry 35 of List III) of List II of the Seventh Schedule to the Constitution. Section 15 of the 1976 Act provides that non‑payment of tax due in respect of a transport vehicle within the prescribed period renders the transport permit for such vehicle ineffective from the date of expiry of that period until the tax is actually paid. The State of Kerala sought Presidential assent for the 1976 Act, which was granted on 25 March 1976. Subsequently, the 1939 Act was repealed by Parliament and replaced by the Motor Vehicles Act, 1988, introducing a new regime to consolidate and amend the law related to motor vehicles. The 1988 Act was enacted by Parliament under Entry 35 of List III (mechanically propelled vehicles). Chapter V of the 1988 Act deals with control of transport vehicles, including the procedure of the Regional Transport Authority in considering applications for stage‑carriage permits and the duration and renewal of permits. According to the appellants, the 1988 Act exhaustively covers all aspects of grant, control and validity of transport permits. Furthermore, the State of Kerala did not seek Presidential assent for the 1976 Act after the Central Act came into force, despite the repugnancy between the existing State Act and the newly introduced 1988 Act., Furthermore, in the year 2005, the State of Kerala amended the 1976 Act and the 1985 Act thereby introducing sub‑sections (7) and (8) of Section 46 in the 1976 Act and Section 8A in the 1985 Act. The effect of these amendments is to mandate production of payment of tax and issue of licence.\n\n(1) The tax levied under Sub‑section (1) of Section 3 shall be paid in advance with such period and in such manner as may be prescribed, by the registered owner or person having possession or control of the motor vehicle, for a quarter or year, at his choice, upon a quarterly or annual licence to be taken out by him. Provided that, in the case of a fleet owner, the Government may direct that the tax shall be paid in monthly instalments before such date, in such manner and subject to such conditions, as may be specified in the direction.\n\nProvided further that where the tax payable in respect of a motor vehicle other than a motorcycle (including a motor scooter and cycle with attachment for propelling the same by mechanical power) or a three‑wheeler as specified in items 1 and 2 of the schedule or a motor car as specified in item 11 of the schedule, for a year does not exceed rupees one thousand five hundred, the tax shall be paid yearly upon an annual licence.\n\nProvided also that the registered owner, or person having possession or control of the motor vehicle may, at his or her choice, pay the yearly tax payable under the second proviso in advance for any period up to five years, upon a licence for such period.\n\nProvided also that the registered owner, or a person having possession or control of a motor cycle (including motor scooters and cycles, with attachment for propelling the same by mechanical power) specified in item 1 of the schedule or three‑wheelers (including tricycles and cycle rickshaws with attachment for propelling the same by mechanical power) not used for transport of goods or passengers specified in item 2 of the schedule or a motor car specified in item 11 of the said schedule shall pay tax in respect of those vehicles in advance for a period of two years in lump sum upon a licence for such period.\n\nProvided also that a registered owner or person liable to pay tax for a period of two years in respect of motor vehicles specified in serial numbers 1 and 2 of the schedule may at his choice pay tax in advance for any period exceeding two years at the rates specified in the schedule.\n\nProvided also that the owner or a person liable to pay tax in respect of vehicles specified in items 1, 2, 11 and 12 of the schedule shall not be liable to pay any periodical increase in tax for which he has paid tax for such vehicles.\n\nProvided also that a registered owner or a person liable to pay tax for a period of two years under the preceding proviso may, at his choice, pay tax in advance for a period of five years or ten years or fifteen years in lump sum upon a licence for such period.\n\nExplanation:\n\n(1) The tax for an annual licence shall not exceed four times tax for two years licence shall not exceed eight times, tax for five years licence shall not exceed twenty times, tax for ten years licence shall not exceed forty times and tax for fifteen years licence shall not exceed sixty times, the tax for a quarterly licence.\n\n(1A) Notwithstanding anything contained in any other provision of this Act, “year” in relation to a motor vehicle in respect of which tax has to be paid yearly upon an annual licence in pursuance of the second proviso to sub‑section (1), shall mean a period of twelve months commencing on the first day of the quarter in which the vehicle has been or is first registered in the State and annual tax licence in respect of such a vehicle shall be taken accordingly: Provided that if the tax in respect of a motor vehicle for any portion of the year so reckoned has already been paid, the tax payable for the remaining period of that year shall be calculated at the rate of one‑twelfth of the annual tax for each calendar month or part thereof.\n\nProvided further that in the case of a motor vehicle in respect of which tax has to be paid yearly upon an annual licence in pursuance of the second proviso to sub‑section (1), the tax for the period from the 1st day of April 1985 to the commencement of the year in relation to such a vehicle shall be paid as if the Kerala Motor Vehicles Taxation (Amendment) Act, 1986 had not been enacted.\n\n(2) In the case of licence for a year or more, such rebate in respect of the tax, as may be prescribed, shall be granted.\n\n(3) When any person pays the amount of tax in respect of a motor vehicle used or kept for use in the State of the vehicle by the Regional Transport Officer concerned that no tax is payable in respect of such vehicle, the Taxation Officer shall (a) grant to such person a licence in the prescribed form; and (b) record that the tax has been paid for the specified period, or that no tax is payable in respect of that vehicle, as the case may be. Provided that no licence shall be granted in respect of a motor vehicle, which is exempt from payment of tax under sub‑section (1) of Section 5.\n\n(4) No motor vehicle liable to tax under Section 3 shall be kept for use in the State unless the registered owner or the person having possession or control of such vehicle has obtained a tax licence under sub‑section (3) in respect of that vehicle.\n\n(5) No motor vehicle liable to tax under Section 3 shall be used in the State unless a valid tax licence obtained under sub‑section (3) is displayed on the vehicle in the prescribed manner.\n\n(6) Notwithstanding anything contained in sub‑section (1), no person shall be liable to tax during any period on account of any taxable motor vehicle, the tax due in respect of which for the same period has already been paid by some other person.\n\n(7) Notwithstanding anything contained in any other provision of this Act, every registered owner or person having possession or control of a motor vehicle in respect of a motor transport undertaking liable to pay contribution under the Kerala Motor Transport Workers Welfare Fund Act, 1985, shall, before effecting payment of tax, produce before the Taxation Officer the receipt of remittance of the contribution towards welfare fund due up to the preceding month.\n\n(8) No tax under this Act shall be collected unless the receipt of remittance of contribution towards welfare fund mentioned in sub‑section (7) is produced., Production of receipt of remittance of welfare fund contribution. Notwithstanding anything contained in any other law for the time being in force, every registered owner or person having possession or control of a motor vehicle in respect of a motor transport undertaking liable to pay contribution (other than autorickshaws covered under the Kerala Autorickshaw Workers Welfare Fund Scheme, 1991) shall, at the time of making payment of the tax under the Kerala Motor Vehicles Taxation Act, 1976, produce the receipt of remittance of the welfare fund contribution before the Taxation Officer. In this context, it is urged that the amendment of 2005 effected by the State legislation has effectively linked the obligation to make contribution to the workers’ welfare fund with the obligation to pay tax for operating motor vehicles, which are otherwise governed by the permit issued under the 1988 Act. In the process, it undermined the effectiveness of the permit issued by the competent authority., It is urged that the amendments to the 1976 Act as well as to the 1985 Act, including Section 15 of the 1976 Act, are unconstitutional because the entire field is already occupied by the Central Act of 1988 with respect to permits to be issued for operating transport vehicles. Thus, the provisions of the State Acts referred to above are repugnant to the Central Act and no Presidential assent had been obtained by the State of Kerala despite the repugnancy with the Central Act. Further, even if there is no direct conflict, the impugned provisions in the State Acts are ultra vires for want of legislative competence., Notably, in the writ petitions filed before the High Court of Kerala, challenging the stated provisions in the State enactments, no relief or declaration was sought in respect of Section 8A of the 1985 Act. Moreover, the Division Bench of the High Court in the impugned judgment noted that the counsel for the petitioners had given up the challenge to the validity of Section 15 of the 1976 Act. Being conscious of this indisputable position, it is urged that there can be no estoppel on legal questions or the concessions made by the counsel on the question of law before the High Court. That cannot impede the appellants from pursuing the challenge to the impugned provisions before this Court., The Division Bench of the High Court exhaustively considered the arguments canvassed on behalf of the parties and, on thorough scrutiny thereof, negatived the challenge in the impugned judgment dated 30 July 2007. The High Court opined that the combined effect of sub‑sections (7) and (8) of Section 4 and Section 15 of the 1976 Act is that if a clearance certificate is not obtained from the Assessing Officer under the 1985 Act, the motor vehicle tax would not be received by the Taxation Officer in connection with the permit. Consequently, the permit would be rendered ineffective, disenfranchising the owner of a stage carriage from operating his vehicle under such permit for the relevant period., The High Court further noted that the 1988 Act had been enacted by Parliament on subjects falling under Entry 35 of List III, which, however, did not cover the field concerning imposition and the manner of recovery of vehicle tax. Section 81(1) of the 1988 Act envisages that a permit other than a temporary permit issued under section 87 or a special permit issued under sub‑section (8) of section 88 shall be effective from the date of issuance or renewal thereof for a period of five years, provided that where the permit is countersigned under sub‑section (1) of section 88, such counter‑signature shall remain effective without renewal for such period so as to synchronize with the validity of the primary permit. Section 87 or a special permit issued under sub‑section (8) of section 88 shall be effective from the date of issuance or renewal., Section 87. Temporary permits. (1) A Regional Transport Authority and the State Transport Authority may, without following the procedure laid down in section 80, grant permits to be effective for a limited period which shall not in any case exceed four months, to authorise the use of a transport vehicle temporarily (a) for the conveyance of passengers on special occasions such as to and from fairs and religious gatherings, or (b) for the purposes of a seasonal business, or (c) to meet a particular temporary need, or (d) pending decision on an application for the renewal of a permit, and may attach to any such permit any condition as it may think fit. Provided that a Regional Transport Authority, or as the case may be, State Transport Authority may, in the case of goods carriages, under exceptional circumstances and for reasons to be recorded in writing, grant a permit for a period exceeding four months but not exceeding one year.\n\n(2) Notwithstanding anything contained in sub‑section (1), a temporary permit may be granted in respect of any route or area where (i) no permit could be issued under sections 72, 74, 76 or 79 in respect of that route or area by reason of an order of a Court or other competent authority restraining the issue of the same, for a period not exceeding the period for which the issue of the permit has been restrained; or (ii) as a result of the suspension by a Court or other competent authority of the permit of any vehicle in respect of that route or area, there is no transport vehicle of the same class with a valid permit in respect of that route or area, or there is no adequate number of such vehicles in respect of that route or area, for a period not exceeding the period of such suspension. Provided that the number of transport vehicles for which temporary permits are granted shall not exceed the number of vehicles for which the issue of permits has been restrained or, as the case may be, the permit has been suspended., Section 88. Validation of permits for use outside the region in which granted. (8) Notwithstanding anything contained in sub‑section (1), but subject to any rules that may be made under this Act by the Central Government, the Regional Transport Authority of any one region, or as the case may be, the State Transport Authority, may, for the convenience of the public, grant a special permit to any public service vehicle, including any vehicle covered by a permit issued under section 72 (including a reserve stage carriage) or under section 74 or under sub‑section (9) of this section, for carrying a passenger or passengers for hire or reward under a contract, express or implied, for the use of the vehicle as a whole without stopping to pick up or set down passengers not included in the contract. In every case where such special permit is granted, the Regional Transport Authority shall assign to the vehicle, for display thereon, a special distinguishing mark in the form and manner specified by it for a period of five years., The State Act, that is, the 1976 Act, was enacted under Entry 57 of List II of the Seventh Schedule to the Constitution, which is solely concerned with tax on vehicles whether mechanically propelled or not. The 1985 Act is also a State legislation covered under Entries 23 and 24 of List III for promoting the welfare of motor transport workers., Dealing with the challenge to the validity of the stated provisions in the State enactments, the Division Bench of the High Court plainly opined that there was no lack of legislative competence in the State Legislature and that the 1976 Act as well as the 1985 Act fall substantially within the powers expressly conferred upon the State Legislature, which had enacted both legislations, including the Amendment Act of 2005. It further held that merely because the 1976 Act also dealt with a subject that falls under Entries 23 and 24 of List III of the Concurrent List, it cannot be held that the provisions of the 1976 Act are bad in law. To buttress the view taken by it, the High Court relied upon the exposition in A.L.S.P.P.L. Subrahmanyan Chettiar vs. Muttuswami Goundan; Prafulla Kumar Mukherjee & Ors. vs. Bank of Commerce Ltd., Khulna; The State of Bombay & Anr. vs. F.N. Balsara; and M. Karunanidhi vs. Union of India. The High Court opined that the State enactments and the impugned amendments substantially fall within the powers expressly conferred upon the State Legislature and cannot be held invalid solely because they incidentally touch upon another legislation. The doctrine of pith and substance would clearly be attracted in the factual situation of the present case. While dealing with the argument of the appellants that the right of appeal and review available to the appellants under the 1985 Act would be curtailed, the High Court in paragraphs 18 and 19 noted thus:, 18. Petitioners have raised a contention that because of the introduction of sub‑sections (7) and (8) to Section 4 of the Taxation Act, the remedy of filing a review as well as an appeal under Section 8 of the Welfare Fund Act has been effectively curtailed. Sub‑section (2) of Section 8 enables a person to file a review petition before the authority that determined the arrears, showing the detailed facts and reasons for reviewing the original determination. The right is also conferred on the aggrieved party, if dissatisfied with the order passed by the authority on the review petition, to file an appeal before the District Labour Officer of the concerned district. To maintain an appeal, he needs to remit only fifty percent of the amount demanded. The above right to file a review or appeal has been effectively taken away by sub‑sections (7) and (8) of Section 4, that is, only on production of a certificate of payment of contribution will the officer accept tax. It has been indicated that a circular dated 16 June 2007 was issued receipt of fifty percent of the contribution due under the Welfare Fund Act, enabling the aggrieved person to pay tax. Therefore, an aggrieved party who files an appeal on payment of fifty percent of the contribution under the Welfare Fund Act is entitled to get a certificate to that effect, and on production of that certificate before the taxing authorities he would receive tax. The circular does not deal with a review petition. The Court orders that if a properly constituted review petition is filed within the prescribed time and the same is pending, the Chief Executive Officer or any other officer appointed under Section 8 of the Welfare Fund Act shall issue a certificate to that effect, and on production of that certificate the taxing authority should receive tax under the Taxation Act. The right to file a review petition as well as an appeal is therefore effectively protected., 19. The Court holds that sub‑sections (7) and (8) of Section 4 of Act 24 of 2005 are constitutionally valid, as is Section 8A introduced under the Welfare Fund (Amendment) Act. However, if a review petition filed under sub‑section (2) of Section 8 as well as an appeal under Section 4 read with Section 7 is pending consideration before the authorities concerned, they are obliged to issue a certificate during the pendency of the review petition, and if an appeal is pending and the prerequisite for filing the appeal has been satisfied, a certificate has to be issued by the appellate authority. If those certificates are produced before the taxing authority, tax shall be received under the Taxation Act. The writ appeal and the writ petitions are disposed of accordingly., In substance, the High Court noted that the permit holders were not disputing their obligation to pay vehicle tax under the 1976 Act nor denying the obligation to pay contribution towards the welfare fund under the 1985 Act. The purport of the impugned amendments, including Section 15, was merely to ensure that both obligations are duly discharged so as to permit the transport operators to continue their business uninterrupted. It is neither a case of levy of tax not permitted under the 1988 Act nor a deviation from the spirit of that Act, which clearly predicates that for grant of a stage‑carriage permit, the Regional Transport Authority is obliged to consider the satisfactory performance of the applicant as a stage‑carriage operator, including payment of tax by the applicant. The provisions in the State legislation are not to suspend the permit issued under the 1988 Act; the expression “ineffective” ought to be construed as enabling the permit holder to avail of the permit only upon payment of vehicle tax under the 1976 Act, as amended from time to time. On this analysis, the High Court rejected the challenge and dismissed the writ petitions and writ appeals in the impugned judgment., The appellants have assailed the view taken by the High Court. It is urged by Mr. K. Parameshwar, learned counsel appearing for the appellants, that the Central legislation, that is, the 1988 Act, occupies the entire field of permits and is a self‑contained code as expounded by this Court in Hardev Motor Transport vs. State of M.P. & Ors. He submits that Chapter V of the 1988 Act deals with all aspects of permits, including their issuance, effectiveness, duration of validity, renewal, transfer and penal consequences for any breach of conditions. Section 81(1) of the 1988 Act envisages that the permit issued by the competent authority shall be effective from the date of issuance or renewal thereof for a period of five years. Once such permit is issued, the same cannot be interdicted by a State legislation during its validity (2006) 8 SCC 613, paragraphs 4, 11 and 12. Section 82 of the 1988 Act also allows transfer of a permit from one person to another and Section 83 allows the permit holder to replace the vehicle covered by the permit with any other vehicle of the same nature. Moreover, Section 192A of the 1988 Act provides for..., Section 192A. Using a vehicle without permit. (1) Whoever drives a motor vehicle or causes or allows a motor vehicle to be used in contravention of the provisions of sub‑section (1) of section 66 or in contravention of any condition of a permit relating to the route, area or purpose for which the vehicle may be used shall be punishable for the first offence with imprisonment for a term which may extend to six months and a fine of ten thousand rupees, and for any subsequent offence with imprisonment which may extend to one year but shall not be less than six months or with a fine of ten thousand rupees or with both, provided that the court may, for reasons to be recorded, impose a lesser punishment. The Act specifically imposes punishment of imprisonment for using a vehicle without a permit, and Section 177 of the 1988 Act is a general provision for punishment for contravention of the provisions of the Act or any rule, regulation or notification made thereunder. Section 207 of the 1988 Act also provides that nothing in this section shall apply to the use of a motor vehicle in an emergency for the conveyance of persons suffering from sickness or injury, or for the transport of materials for repair, or for the transport of food or materials to relieve distress or medical supplies for a similar purpose, provided that the person using the vehicle reports the same to the Regional Transport Authority within seven days from the date of such use. (3) The court to which an appeal lies from any conviction in respect of an offence of the nature specified in sub‑section (1) may set aside or vary any order made by the court below, notwithstanding that no appeal lies against the conviction in connection with which such order was made., Section 177. General provision for punishment of offences. Whoever contravenes any provision of this Act or any rule, regulation or notification made thereunder shall, if no penalty is provided for the offence, be punishable for the first offence with a fine which may extend to five hundred rupees, and for any second or subsequent offence with a fine which may extend to one thousand five hundred rupees. Section 207 provides ...
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Power to detain vehicles used without certificate of registration permit, etc. Any police officer or other person authorised in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Section 3, Section 4, Section 39 or without the permit required by sub-section (1) of Section 66 or in contravention of any condition of such permit relating to the route, area or purpose for which the vehicle may be used, seize and detain the vehicle in the prescribed manner and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle. Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of Section 3 or Section 4 or without the permit required by sub-section (1) of Section 66, he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof., Where a motor vehicle has been seized and detained under sub-section (1), the owner or person in charge of the motor vehicle may apply to the transport authority or any officer authorised in this behalf by the State Government together with the relevant documents for the release of the seized vehicle. The 1988 Act contains an inbuilt mechanism to deal with violation of conditions of permit or use of a vehicle without a valid permit. As a complete code, it would not be open to the State Legislature to impinge upon the occupied field. Hence, Section 15 of the 1976 Act is in direct conflict with the legislative scheme under the Central legislation dealing with permits of transport vehicles. The State legislation is limited to tax on vehicles and cannot transcend matters relating to permits or their effectiveness during the five‑year term provided for under Section 81 of the 1988 Act. The authority or officer, after verification of such documents, may by order release the vehicle subject to such conditions as the authority or officer may deem fit to impose., Section 81 – Duration and renewal of permits. A permit other than a temporary permit issued under Section 87 or a special permit issued under sub-section (8) of Section 88 shall be effective from the date of issuance or renewal thereof for a period of five years. Provided that where the permit is countersigned under sub-section (1) of Section 88, such counter‑signature shall remain effective without renewal for such period so as to synchronise with the validity of the primary permit. A permit may be renewed on an application made not less than fifteen days before the date of its expiry. Notwithstanding anything contained in sub-section (2), the Regional Transport Authority or the State Transport Authority, as the case may be, may entertain an application for renewal of a permit after the last date specified in that sub-section if it is satisfied that the applicant was prevented by good and sufficient cause from making an application within the time specified., The Regional Transport Authority or the State Transport Authority, as the case may be, may reject an application for renewal of a permit on one or more of the following grounds: (a) the financial condition of the applicant as evidenced by insolvency or decrees for payment of debts remaining unsatisfied for a period of thirty days prior to the date of consideration of the application; (b) the applicant has been punished twice or more for any of the offences listed within twelve months reckoned from fifteen days prior to the date of consideration of the application, namely: (i) plying any vehicle without payment of tax due on such vehicle; (ii) plying any vehicle without payment of tax during the grace period allowed for payment of such tax and then stopping the plying of such vehicle; (iii) plying on any unauthorised route; (iv) making unauthorised trips. Provided that in computing the number of punishments for the purpose of clause (b), any punishment stayed by the order of an appellate authority shall not be taken into account. No application under this sub-section shall be rejected unless an opportunity of being heard is given to the applicant., Where a permit has been renewed under this section after the expiry of the period thereof, such renewal shall have effect from the date of such expiry irrespective of whether or not a temporary permit has been granted under clause (d) of Section 87, and where a temporary permit has been granted, the fee paid in respect of such temporary permit shall be refunded., Chand v. State of Uttar Pradesh & Ors. followed the decisions in Zaverbhai Amaidas v. State of Bombay and Ch. Tika Ramji & Ors. v. State of Uttar Pradesh & Ors. Reliance is also placed on Thirumuruga Kirupanananda Variyar Thavathiru Sundara Swamigal Medical Educational & Charitable Trust v. State of Tamil Nadu & Ors.; and Kulwant Kaur & Ors. v. Gurdial Singh Mann (Dead) by LRs. & Ors. It is urged that, as there is repugnancy, the State of Kerala ought to have obtained Presidential assent in respect of the 1976 Act after the coming into force of the 1988 Act, as was obtained under the proviso to Article 304(b) of the Constitution on 25.3.1976 in reference to the provisions of the 1939 Act. In the absence of such Presidential assent, Section 15 of the 1976 Act is rendered ultra vires, being repugnant with Section 81 of the 1988 Act., Reliance is placed on Kaiser‑I‑Hind Pvt. Ltd. & Anr. v. National Textile Corpn. (Maharashtra North) Ltd. & Ors. For the same reason, the State of Kerala ought to have obtained Presidential assent under Article 304(b) of the Constitution in respect of the amended provisions vide the Amendment Act of 2005. Reliance is also placed on Hoechst Pharmaceuticals Ltd. & Ors. v. State of Bihar & Ors. to contend that the question of repugnancy under Article 254(1) between a law made by Parliament and a law made by the State Legislature arises only when both legislations occupy the same field with respect to one of the matters enumerated in the Concurrent List and there is a direct conflict between the two laws. Article 254(1) has no application to cases of repugnancy due to overlapping found between List II on the one hand and Lists I and III on the other. If such overlapping exists, the State law will be ultra vires because of the non‑obstante clause in Article 246(1) read with Article 246(3). The State law in that case would eventually fail for lack of legislative competence and not because of repugnancy. Reliance is also placed on State of Kerala & Ors. v. Mar Appraem Kuri Company Limited & Anr., which dealt with the efficacy of Article 246(1) of the Constitution., The appellants cannot be barred from arguing the validity of Section 15 of the 1976 Act, being in conflict with Section 81 of the 1988 Act, merely because of the concession of counsel on the question of law before the High Court. To buttress this submission, reliance is placed on the dictum in Union of India & Ors. v. Mohanlal Likumal Punjabi & Ors. and Director of Elementary Education, Odisha & Ors. v. Pramod Kumar Sahoo. It is submitted that the appellants are entitled to assail the constitutional validity of sub‑sections (7) and (8) of Section 4, as inserted by the Amendment Act of 2005 in the 1976 Act, as well as Section 15 of the 1976 Act. In the submission of the appellants, these provisions are unconstitutional., Mr. K. Radhakrishnan, learned senior counsel appearing for the appellants in the connected matters, more or less pursued the same line of challenge to the amended provisions and Section 15 of the 1976 Act, but in addition he also assailed the validity of Section 8A, as inserted by Act 23 of 2005 in the 1985 Act. According to him, Section 8A of the 1985 Act, with its non‑obstante clause, overrides the Central legislation i.e., the 1988 Act. He submits that the Division Bench of the High Court of Kerala, in paragraph 19 of the impugned judgment, upheld the constitutional validity of Section 8A of the 1985 Act; and, hence, it is open to the appellants to challenge the validity of this provision in the present appeals. In his submission, Entry 57 of List II (State List) is made subject to Entry 35 of the Concurrent List (List III). Hence, the impugned amendments in Section 4 of the 1976 Act cannot encroach and override the Central legislation i.e., the 1988 Act, much less undermine the Stage and Goods Carriage Operations as per the permit issued under that Act., It is further urged that Entry 57 of List II (State List) is not made subject to Entry 24 of the Concurrent List and, for that reason, the 1976 Act cannot be made subservient to the 1985 Act. The 1985 Act is a labour welfare legislation, whereas the 1976 Act is compensatory in nature. The 1988 Act is a complete code and a regulatory legislation. In the submission, the welfare legislation has been intertwined by the State of Kerala with the compensatory legislation via the impugned amendments, and together these provisions substantially encroach and override the dispositions predicated in the 1988 Act concerning issuance of permits and their effectiveness. The impugned State enactments are repugnant with the Central law and there exists an irreconcilable conflict and direct collision between the State and Central legislations, impinging upon the mandate of Article 254(1) of the Constitution which declares that the Central legislation must prevail. The State enactments are therefore void and unconstitutional. They do not have the protection of Article 254(2) and, in the absence of Presidential assent, cannot prevail. Reliance is placed on M. Karunanidhi; Association of Natural Gas & Ors. v. Union of India & Ors.; and Dharappa v. Bijapur Coop. Milk Producers Societies Union Ltd., It is submitted that the State enactments suffer from a lack of legislative competence and are colourable legislations. The field of legislation in Entry 57 of the State List and Entry 24 of the Concurrent List are distinct. However, two State legislations are operating in different fields to achieve different goals. For that reason, the impugned amendments/insertions in the concerned provisions are bordering on transgression of the limits of the powers to achieve indirectly the collection of welfare fund contribution. The State Legislature is not competent to frame such law for ensuring collection of welfare fund dues through the medium of a taxation statute. In the process, the taxation statute is made to yield to the welfare fund statute. To buttress this submission, reliance has been placed on the dictum in Ashok Kumar alias Golu v. Union of India & Ors. and State of Tamil Nadu & Ors. v. K. Shyam Sundar & Ors., The impugned amendments/insertions are manifestly arbitrary and inevitably impinge upon fundamental rights. The substantive unreasonableness is apparent on the face of the insertions by way of sub‑section (8) of Section 4 which declares that no tax shall be collected unless the receipt of remittance of contribution towards the welfare fund, mentioned in sub‑section (7) of Section 4, is produced. This is manifestly arbitrary and unreasonable. The Taxation Officer is duty‑bound to accept tax when offered by the taxpayer and cannot refuse to do so, nor can he impact the Stage and Goods Carriage Operations with valid permits issued under the Central legislation i.e., the 1988 Act. The permit so issued cannot be rendered ineffective by a State legislation. In that sense, the impugned amendments/insertions are hit by Article 254(1) and Article 254(2) of the Constitution. The presumption of constitutionality cannot come to the aid of the impugned amendments/insertions which are vitiated by manifest legislative arbitrariness and have a deleterious impact on the permit of Stage and Goods Carriage Operations. The impugned insertions therefore fall foul of Article 19(1)(g) of the Constitution. Reliance is placed on Ajay Hasia & Ors. v. Khalid Mujib Sehravardi & Ors. and K. Shyam Sundar., Mr. Abraham Mathews, learned counsel appearing for the Kerala Motor Transport Workers Welfare Fund Board, adopted the reasons recorded by the Division Bench of the High Court of Kerala in the impugned judgment. The appellants conceded their liability to pay the tax levied under the 1976 Act as well as their dues/contribution under the 1985 Act. The only challenge in these appeals is that the amendment makes payment of the welfare dues a pre‑condition for the collection of the tax, thereby dovetailing a tax with a welfare contribution. Such a provision cannot be construed as unconstitutional. It is always open to the Legislature to combine levies for other purposes such as education cess. Moreover, paragraph 19 of the impugned judgment directed that if a taxpayer produces proof of having preferred an appeal in the prescribed mode in respect of a legitimate dispute over the quantum of levy, that shall be regarded as sufficient compliance. This safeguard must assuage the apprehension of the appellants who intend to dispute the quantum of levy under the 1985 Act. In other words, if the permit holder has resorted to the remedy of appeal/review in respect of demand under the 1985 Act, that would be regarded as sufficient compliance to accept the vehicle tax under the 1976 Act. No prejudice would be caused to such permit holder. The levy under the 1985 Act is covered by Entry 24 of the Concurrent List, whereas the vehicle tax is levied as per Entry 35 thereof. The two fields are different and there is no encroachment into the legislative domain of Parliament., Even if there is an encroachment into the legislative domain of Parliament, such encroachment, being incidental, is protected by the doctrine of pith and substance as expounded in Hoechst Pharmaceuticals Ltd. The levy of contribution to the workers welfare fund is a socially beneficial legislation intended to protect the workers of commercial operations undertaken by the appellants and other similarly placed vehicle operators pursuant to permits issued under the Central legislation. The workers engaged by them may not be eligible to avail of the pension and provident fund scheme; they are typically unorganised and part of the informal workforce and often left to fend for themselves. The 1985 Act seeks to reach out to such workers and provide support on the basis of the collection made from the Stage and Goods Carriage Operators. In the past, there have been instances where operators deliberately avoided paying and contributing to the workers welfare fund, which was frowned upon even by the High Court, warranting amendments to the State legislations impugned in the present proceedings., It is urged that the challenge set forth by the appellants is devoid of merit. The provisions of the State enactments impugned in the present proceedings do not undo the permit issued under the Central legislation; they merely restate the mandate of the Central legislation that a vehicle cannot be used without a permit and payment of vehicle tax. A permit issued under the Central legislation provides for a term of five years from the date of issuance, but it does not follow that the permit holder or vehicle owner can operate the vehicle under such a permit without payment of tax payable under the State legislation. The State may stop any vehicle or seize and detain the vehicle despite a valid permit if it is used or kept for use within the State without payment of tax payable under the 1976 Act. This is a consequence under the State legislation. The expression ‘ineffective’ in the amended provisions means that despite a valid permit, action can be taken under the State legislation concerning a vehicle used or kept for use within the State without payment of tax., The Kerala Motor Transport Workers Welfare Fund Board Scheme, 1985, was framed under Section 341 of the 1985 Act. Every employer, employee and self‑employed person are obliged to remit the monthly contribution on or before the 7th day of the succeeding month. The Chief Executive Officer or any other officer authorised may, by order, determine the amount due under the Act or the Scheme and, if the amount is not paid on or before the due date, issue a demand notice showing the arrears. An aggrieved person may file a review petition within seven days of receipt of the demand notice; the petition must be disposed of within thirty days. An appeal may be preferred before the District Labour Officer, to be disposed of within sixty days, and if the amount in dispute exceeds Rs 1,00,000, a second appeal may be preferred before the Board, to be disposed of within sixty days. Every order passed under these provisions is final. The scheme provides for refund of excess amount if the appellate authority finds that the amount paid is in excess of what is due., Section 10 of the 1976 Act empowers any officer of the Motor Vehicles Department not below the rank of Assistant Motor Vehicles Inspector, or any police officer in uniform not below the rank of Sub‑Inspector, to stop any vehicle for the purpose of satisfying himself that the amount of tax due in respect of such vehicle has been paid. Section 11 of the 1976 Act empowers the stated officers to seize and detain taxable motor vehicles used or kept for use in the State of Kerala without payment of tax pending production of proof of payment of the tax. These provisions have not been challenged. Without the amended provisions, the permit issued under the 1988 Act would become ineffective in cases where action is taken under Sections 10 and 11 of the 1976 Act. Thus, Section 15 as well as the amended Section 4(7) and (8) of the 1976 Act and Section 8A of the 1985 Act would have the same effect in case of action taken by the stated officers under Sections 10 and 11 of the 1976 Act. The amended provisions merely declare that position. The levy of tax shall be on the basis of the rate specified under Section 345 of the 1976 Act. Despite the repeal of the 1939 Act, the provisions of the 1976 Act continue to operate, empowering the stated officers to act against vehicles used or kept for use within the State of Kerala without payment of vehicle tax.
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Notwithstanding anything contained in sub‑section (1), the Government may, from time to time, by notification in the Gazette, direct that a temporary licence for a period not exceeding seven days or thirty days at a time may be issued in respect of any class of motor vehicles specified in the Schedule on payment of the tax specified in sub‑section (5), and subject to such conditions as may be specified in such notification. The tax payable for a temporary licence in respect of a motor vehicle shall be (a) where the temporary licence is for a period not exceeding seven days, at the rate of one‑tenth of the quarterly tax on that motor vehicle; and (b) where the temporary licence is for a period exceeding seven days but not exceeding thirty days, at the rate of one‑third of the quarterly tax on that motor vehicle. Provided also that in the case of vehicles covered with permit under sub‑section (9) of Section 88 of the Motor Vehicles Act, 1988 (Central Act 59 of 1988) and registered in any State other than the State of Kerala and entering the State of Kerala and staying therein, the tax payable for such vehicle shall be (a) if such stay does not exceed seven days, one‑tenth of the quarterly tax; and (b) if such stay exceeds seven days but does not exceed thirty days, one‑third of the quarterly tax. In the case of motor vehicles in respect of which any reciprocal arrangement relating to taxation has been entered into between the Government of Kerala and any other State Government, the levy of tax shall, notwithstanding anything contained in this Act, be in accordance with the terms and conditions of such reciprocal arrangement, provided that the terms and conditions of every such reciprocal arrangement shall be published in the Gazette and a copy thereof shall be placed before the Legislative Assembly of the State., Section 15 merely makes reference to the 1939 Act without incorporation of any provision thereof. Resultantly, the repeal of that Act will have no impact on the provisions of the 1976 Act, including in light of Section 8(1) of the General Clauses Act, 1897. In support of this submission, reliance is placed on The Collector of Customs, Madras vs. Nathella Sampathu Chetty & Anr. and New Central Jute Mills Co. Ltd. vs. Assistant Collector of Central Excise, Allahabad & Ors., Coming to the challenge to the amended provisions vide State legislation in 2005, it is urged that Parliament has not enacted any law regarding levy of tax on motor vehicles. The 1988 Act does not deal with levy of tax on motor vehicles and the consequence of non‑payment of such tax. Whereas, the 1976 Act has been enacted by the State Legislature under Entry 57 of List II of the Seventh Schedule to the Constitution, which is exclusively within the domain of the State Legislature. The regime regarding payment of tax in respect of motor vehicles and the consequence of non‑payment are, therefore, exclusive to the 1976 Act. Thus understood, there is no question of repugnancy between the provisions of the 1988 Act and the State legislation in the field occupied by the 1976 Act. It is contended by the learned senior counsel that Section 15 of the 1976 Act does not reduce the period of validity of the permit issued under the 1988 Act, but only stipulates that the vehicle tax due in respect of a transport vehicle must be paid within the prescribed period and thereby declares that in case of non‑payment of tax, the validity period of the permit cannot come in the way of initiating action against the vehicle used or kept for use within the State of Kerala without payment of vehicle tax. If so understood, there is no conflict between the period prescribed in terms of Section 81(1) of the 1988 Act and the provisions in the State legislation, be it the 1976 Act or the 1985 Act., As submitted earlier, the appellants have not challenged the validity of Sections 10 and 11 of the 1976 Act in particular, which empower the stated officers to stop or seize and detain motor vehicles used or kept for use in the State of Kerala without payment of vehicle tax. The amended provisions of the 1976 Act and the 1985 Act merely prescribe the modalities for payment and collection of vehicle tax or payment of contribution to the Kerala Motor Transport Workers Welfare Fund by requiring the employer or vehicle owner to produce receipt regarding payment of contribution to the welfare fund before the Taxation Officer while offering to pay vehicle tax under the 1976 Act., It is further urged that no argument can be countenanced that the State Legislature lacks legislative competence to enact a law on the subject of vehicle tax falling under Entry 57 of List II of the Seventh Schedule to the Constitution. The 1988 Act does not deal with either the modalities for the payment or collection of vehicle tax as such. For that reason, there is no inconsistency between the Central Act and the State Act. According to the learned senior counsel, these appeals are devoid of merit and, therefore, the decision of the Division Bench of the High Court of Kerala under appeal needs to be affirmed., We have heard learned counsel appearing for both parties at length. After cogitating over the oral arguments and perusing the written submissions, it needs to be noted at the outset that there is no challenge on the ground of legislative competence in respect of the 1976 Act and amendments thereto as well as the 1985 Act as amended. The argument is essentially about repugnancy owing to the application of the State laws to the vehicle permit issued under the law made by Parliament. The tests of repugnancy have been delineated by the Constitution Bench in Deep Chand. Three principles have been noted in that decision as follows: (1) Whether there is direct conflict between the two provisions; (2) Whether Parliament intended to lay down an exhaustive code in respect of the subject‑matter replacing the Act of the State Legislature; and (3) Whether the law made by Parliament and the law made by the State Legislature occupy the same field., We may also refer to the decision in Thirumuruga Kirupananda Variyar Thavathiru Sundara Swamigal Medical Education & Charitable Trust wherein the Court observed that it cannot be said that the test of two legislations containing contradictory provisions is the only criterion of repugnance. Repugnancy may arise between two enactments even though obedience to each of them is possible without disobeying the other if a competent legislature with a superior efficacy expressly or impliedly evinces by its legislation an intention to cover the whole field. The contention that there is no repugnancy between the proviso to Section 5(5) of the Medical University Act and Section 10‑A of the Indian Medical Council Act because both can be complied with cannot be accepted. What has to be seen is whether, in enacting Section 10‑A of the Indian Medical Council Act, Parliament has evinced an intention to cover the whole field relating to establishment of new medical colleges in the country., Keeping in mind the exposition of this Court in the aforementioned decisions, we turn to the Act enacted by Parliament in 1988. This Act repealed the erstwhile Motor Vehicles Act, 1939. Parliament has enacted the 1988 Act in reference to Entry 35 in List III (Concurrent List) which concerns mechanically propelled vehicles including the principles on which taxes on such vehicles are to be levied. Notably, the 1988 Act provides for procedure of the Regional Transport Authority in considering application for stage carriage permit as predicated in Section 71 of the 1988 Act. A Regional Transport Authority shall, while considering an application for a stage carriage permit, have regard to the objects of this Act. The Authority shall refuse to grant a stage carriage permit if it appears from any timetable furnished that the provisions of this Act relating to the speed at which vehicles may be driven are likely to be contravened, provided that before such refusal an opportunity shall be given to the applicant to amend the timetable so as to conform to the said provisions. The State Government shall, if so directed by the Central Government having regard to the number of vehicles, road conditions and other relevant matters, by notification in the Official Gazette, direct a State Transport Authority and a Regional Transport Authority to limit the number of stage carriages generally or of any specified type, as may be fixed and specified in the notification, operating on city routes in towns with a population of not less than five lakh. Where the number of stage carriages are fixed, the Government of the State shall reserve in the State a certain percentage of stage carriage permits for the scheduled castes and the scheduled tribes in the same ratio as in the case of appointments made by direct recruitment to public services in the State. The Regional Transport Authority shall reserve such number of permits for the scheduled castes and the scheduled tribes as may be fixed by the State Government. After reserving such number of permits, the Regional Transport Authority shall, in considering an application, have regard to (i) financial stability of the applicant; (ii) satisfactory performance as a stage carriage operator including payment of tax if the applicant is or has been an operator of stage carriage service; and (iii) such other matters as may be prescribed by the State Government. Provided that, other conditions being equal, preference shall be given to applications for permits from (i) State transport undertakings; (ii) cooperative societies; (iii) ex‑servicemen; or (iv) any other class or category of persons as the State Government may, for reasons to be recorded in writing, consider necessary. The Authority, while considering an application for grant of a stage carriage permit, is obliged to have regard to the objects of the 1988 Act including the satisfactory performance of the applicant as a stage carriage operator and payment of tax. The other relevant provision for considering the subject‑matter of this appeal is Section 81 dealing with duration and renewal of permits. It provides that the permit issued by the Authority shall be effective from the date of issuance or renewal thereof for a period of five years. The proviso to sub‑section (1) envisages that where the permit is countersigned under sub‑section (1) of Section 88, such countersignature shall remain effective without renewal for such period so as to synchronize with the validity of the primary permit. The relevant sub‑section dealing with the power of the Authority to reject an application for renewal of a permit is sub‑section (4) of Section 81. It provides for the grounds on which a renewal of a permit can be rejected. The same includes plying any vehicle without payment of tax due on such vehicle and on any unauthorised route. Besides these provisions, there is nothing in the 1988 Act to deal with the manner of levy of vehicle tax or the collection thereof. In other words, the law made by Parliament does not occupy the field of manner of levy of vehicle tax and collection thereof. Hence, it is not possible to hold that there is direct conflict between the provisions made by Parliament and those made by the State Legislature. Furthermore, on analysing the legislative intent and the efficacy of the provisions enacted by the State Legislature concerning the manner of levy of vehicle tax and collection thereof, it will be clear that obedience to each of the laws is possible without disobeying the other. The argument regarding repugnancy is therefore devoid of merit., As regards the 1976 Act enacted by the State Legislature, it is ascribable to Entries 56 and 57 of List II (State List). Entry 56 deals with taxes on goods and passengers carried by road or on inland waterways. Entry 57 deals with taxes on vehicles, whether mechanically propelled or not, suitable for use on roads, including tramcars, subject to the provisions of Entry 35 of List III. In one sense, the law made by the State Legislature is also ascribable to Entry 35 of List III under which Parliament has already enacted the 1988 Act. However, the 1988 Act does not touch upon the field of manner of levy of vehicle tax and collection thereof. The 1976 Act consolidates and amends the laws relating to the levy of tax on motor vehicles and on passengers and goods carried by such vehicles in the State of Kerala. The levy of tax is spelled out in Section 3 of this Act. Section 4 deals with payment of tax and issue of licence. The writ petitioners have challenged the amendment made to this provision vide Act 24 of 2005 inserting sub‑sections (7) and (8). By this amendment, it is provided that every registered owner or person having possession or control of a motor vehicle in respect of a motor transport undertaking liable to pay contribution under the 1985 Act shall, before effecting payment of vehicle tax under the 1976 Act, produce before the Taxation Officer the receipt of remittance of the contribution towards the welfare fund due up to the preceding month; failure to do so would entail refusal to collect the vehicle tax under the 1976 Act. In the context of this provision, it has been urged that such a provision is in the nature of bootstrapping of two different liabilities. Section 85 mandates production of a certificate of insurance by every registered owner or person having possession or control of a motor vehicle. Section 95 fastens liability to pay vehicle tax by persons succeeding to the ownership, possession or control of motor vehicles. Section 10 and Section 11 are of some relevance. Section 10 empowers officers of the Motor Vehicles Department or police officers to stop motor vehicles to ascertain that the tax due has been paid. Section 11 empowers such officers to seize and detain a taxable motor vehicle used or kept for use in the State without payment of tax, pending production of proof of payment., Concededly, the validity of these two provisions has not been assailed by the writ petitioners and, failure to do so, may have some bearing on the view that we propose to take. Additionally, we may also refer to Section 15 of the Act, which is the subject‑matter of challenge in these proceedings. Section 15 provides that, notwithstanding anything contained in the Motor Vehicles Act, 1939, if the tax due in respect of a transport vehicle is not paid within the prescribed period, the validity of the permit for that vehicle shall become ineffective from the date of expiry of the said period until such time as the tax is actually paid., From the scheme of the 1976 Act, it is clear that it is specific to levy of tax on motor vehicles and passengers and goods carried by such vehicles in the State of Kerala. It is not a law regulating the issuance of a permit by the Authority under the 1988 Act. Indisputably, the permit issued by the Authority is hedged with conditions including the condition of regular payment of vehicle tax. Section 15 provides for the consequences for non‑payment of tax consistent with Sections 10 and 11 of the 1976 Act. Thus, there is no occasion for conflict between the two provisions, much less repugnancy., The argument regarding bootstrapping of liabilities of permit‑holder under two different State legislations is tenuous. It is open to the Legislature to combine levies for other purposes, such as education cess, for collection of tax due and payable by the same taxpayer. It is not the case that the petitioners are disputing their liability under both State enactments; rather, they contend that they may invoke remedy of appeal and revision in respect of liability fastened under the 1985 Act. The High Court, in paragraph 18 of the impugned judgment, observed that sufficient safeguard has been provided under the relevant enactment to file appeal or revision by remitting fifty percent of the amount demanded. A circular issued on 16 June 2007 clarified that an aggrieved person who prefers appeal on payment of fifty percent of the contribution under the Welfare Fund Act is entitled to a certificate to that effect, and on production of that certificate before the Taxing Authorities, the vehicle tax could be received without payment of the entire welfare fund contribution. The High Court also directed that similar benefit be extended where a review petition is filed within the prescribed time. No prejudice is caused to the permit‑holder who intends to pursue remedy under the 1985 Act against the demand relating to the contribution to the Welfare Fund., Reverting to the 1985 Act enacted by the State Legislature, it is a welfare legislation constituting a fund to promote the welfare of motor transport workers in the State of Kerala. This Act is ascribable to Entries 23 and 24 of List III (Concurrent List). Entry 23 deals with social security and social insurance, employment and unemployment; Entry 24 deals with welfare of labour including conditions of work, provident funds, employer’s liability, workmen’s compensation, invalidity and old‑age pensions and maternity benefits. Although the liability arising from the obligations under the 1985 Act appears unrelated to vehicle tax, the Act was enacted because a large number of employees were engaged in the motor transport industry in the private sector and were not covered by the Employees Provident Funds and Miscellaneous Provisions Act, 1952 and the Payment of Gratuity Act, 1972. The Act provides for the constitution of a fund to promote the welfare of such workers. It was later amended by Act 23 of 2005 to reduce arbitrariness in fixing the contribution. The activities of motor transport workers are directly linked to the use and operation of motor transport vehicles having permits issued under the 1988 Act. Under the 1985 Act, the permit holder is obliged to ensure that vehicle tax is paid regularly. The law provides for action against the motor transport vehicle for failure to pay vehicle tax, including rejection of renewal of the permit. Non‑payment of vehicle tax may lead to stopping of the motor vehicle by officers of Police or the Motor Vehicles Department under Section 10 of the 1976 Act, seizure and detention pending production of proof of tax remittance as prescribed in Section 11, and penalty under Section 16 and prosecution under Section 17. Offences by companies are dealt with in Section 54, providing that where an offence is committed by a company, every person who was in charge of the conduct of the business at the time of the offence shall be liable, unless he proves lack of knowledge or that he exercised due diligence to prevent the offence., Considering the scheme of the State legislations, it is incomprehensible to countenance the argument that the provisions of the 1988 Act and those of the 1976 Act and 1985 Act are inconsistent in any manner whatsoever. The State enactments are complementary and can be given effect without any disobedience to the Central legislation. As aforementioned, the 1988 Act does not cover the field of manner of levy of vehicle tax and collection thereof; that field is covered by the State legislations., The appellants have not disputed their liability to pay the vehicle tax levied under the 1976 Act as well as to pay contribution towards the workers welfare fund under the 1985 Act. The real grievance in these appeals by the motor transport vehicle owners or permit‑holders is about compelling them to pay the welfare contribution dues as a precondition for collection of vehicle tax. Such dispensation cannot be construed as unconstitutional. It is beyond comprehension that a vehicle owner or permit‑holder would argue that he would not pay the dues under the 1985 Act yet continue the motor transport business by exploiting the workers on the plea that the validity of the permit cannot be interdicted by State legislation. Section 15 of the 1976 Act restates the consequences flowing from Sections 10 and 11 of the same Act to stop a motor vehicle and to seize and detain the same if used without payment of vehicle tax. When action is taken by the competent authority under Sections 10 and 11, the transport vehicle for which the permit has been taken is rendered unusable due to non‑payment of vehicle tax. The liability of the vehicle owner or permit‑holder to pay welfare fund contribution as well as vehicle tax arises under the legislation enacted by the State Legislature. Therefore, there is nothing wrong in the State Legislature making it compulsory to pay outstanding welfare fund contribution before accepting the vehicle tax which had become due and payable. It would be unnecessary to elaborate on the argument regarding the validity of Section 15 of the 1976 Act because of lack of Presidential assent after the coming into effect of the 1988 Act., We have thus held that the appeals lack merit and the decision of the Division Bench of the High Court of Kerala is affirmed.
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We cannot be oblivious about the legislative intent for enacting the 1985 Act and the amendment effected thereto in 2005. The same is a beneficial legislation with avowed objective to ensure strict compliance of payment of welfare fund contribution to protect the workers of the commercial operations undertaken by the vehicle owners/permit holders pursuant to a permit issued under the 1988 Act, and is to reach out to such workers who are typically unorganised and a part of informal workforce. Neither the provisions of the 1985 Act or the 1976 Act have the effect of interdicting the permit issued under the 1988 Act. The real intent and purpose behind these provisions is to restate the mandate stated in the 1988 Act that the vehicle cannot be used on road without a valid permit and payment of vehicle tax up to date., A priori, we have no hesitation in concluding that the provisions of the 1976 Act and the 1985 Act, enacted by the State Legislature, are only intended to ensure that the vehicle owner/permit holder does not remain in arrears of either the welfare fund contribution or the vehicle tax both payable under the State enactments. These provisions are in no way in conflict with the law made by the Parliament (1988 Act). The State enactments do not create any new liability or obligation in relation to the permit issued under the 1988 Act (Central legislation), but it provides for dispensation to ensure timely collection of the welfare fund contribution as well as vehicle tax payable by the same vehicle owner/permit holder., While parting, we must note that the writ petitioners through their counsel had fairly accepted during oral argument that after the 2005 amendment, for all these years they have been following the dispensation provided under the State legislations without exception. In that sense, the challenge has become academic. Be that as it may, we have negated the stand taken by the writ petitioners regarding the validity of the amended provisions being repugnant to the law made by the Parliament. In view of the above, these appeals must fail and the same are dismissed with costs.
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Full text of the Speech by Honorable the Chief Justice of India Shri Justice N V Ramana at the Curtain Raiser and Stakeholders Conclave of International Arbitration and Mediation Centre, Hyderabad, 04 December 2021. Namaskar. It is my pleasure to be speaking at the Curtain Raiser for the International Arbitration and Mediation Centre at Hyderabad. I am happy to address this gathering of highly successful personalities. You are all wise and have great foresight. With your innovative outlook and hard work, you have become leaders in your respective fields. You have generated employment and wealth. You have dealt with your businesses successfully. I hope you deal with conflicts with the same success as well., Here, I want to retell a story. The great Indian epic, the Mahabharata, provides an example of an early attempt at mediation as a conflict resolution tool, where Lord Krishna attempted to mediate the dispute between the Pandavas and Kauravas. It may be worthwhile to recall that the failure of mediation led to disastrous consequences., You may not be law graduates, but with your experience of dealing with complex commercial transactions and practical knowledge, you already know about the legal system. Many of you may already prefer alternative dispute resolution mechanisms before approaching courts. The reasons for conflicts are many. Misunderstandings, ego issues, trust and greed can lead to conflicts. Ultimately, small differences of opinion can lead to a big conflict. And even big conflicts can be resolved with some effort in understanding one another. If conflicts arise in your personal life, they can be resolved by avoiding the people you do not like, or you can choose to personally sacrifice some property or money to get mental peace by satisfying the other person's ego. Sometimes, you may choose the path of silence or even develop a philosophical attitude to such issues. Every day, in our lives, we face conflicts – be it between family members or in our business or professional life. Can anyone even imagine a world without conflicts? A prudent person tries to find ways to resolve the same amicably. Conflicts have a human face and it helps to be humane in our approach to resolve them., But in a business, you cannot lose money, honour or your reputation. You cannot sacrifice the interests of business or industry. In such a situation also, you can think of an easy way of settling disputes without wasting much time or money, or losing your peace of mind. You can find a better way for further growth and improvement. Now to come back to the reality, in business you might have differences of opinion and disagreements. One would usually start by initiating a dialogue to clarify issues. If it does not happen, you will start to look for people who can help you resolve such issues by negotiating. If this also does not work, then the only option people consider is to go to the courts of India. My advice, after participating in the legal profession for over 40 years in different capacities, is that you must keep the option of going to the courts of India as a last resort. Use this last resort only after exploring the option of alternative dispute resolution – arbitration, mediation and conciliation., Arbitration and mediation are efforts at restoring a relationship. I think that the most important factor behind the resolution of any dispute is having the right attitude. By right attitude, I mean we should leave aside our ego, emotions, impatience and embrace practicality. But, once these conflicts enter a court, much gets lost in the practice and procedure. I do not need to elaborate the benefits of mediation and arbitration to this gathering of domain experts and businesspeople. Dispute resolution mechanisms like arbitration and mediation are nowadays the preferred modes of dispute resolution. The reasons for opting for mediation or arbitration over traditional litigation are manifold: fewer delays, less expensive, more involvement of the parties in the process, greater party choice, more control, more comfortable and amicable environment for the parties., Similarly, mediation has immense potential for dispute resolution in India, for both domestic and international disputes. In addition to the above advantages, mediation also has the following benefits: allows for settlements and compromises between parties, ensuring there is no winner or loser in the process; parties have far more control over the outcome; possibility of a continued relationship between parties after the dispute resolution process; greater options for choice of mediator with varied expertise, as there is no requirement for a legally trained mediator., The exact steps in arbitration would depend on the complexity and type of issue being considered. International arbitration centres are present in most commercial hubs – Paris, Singapore, Hong Kong, London, New York, and Stockholm. Despite the presence of some arbitration centres in India, Indian parties that enter into an international arbitration agreement often opt for an arbitration centre outside India, incurring huge expenses. The setting up of this International Arbitration and Mediation Centre in Hyderabad will change this trend in India. This centre is being established with the best infrastructure and the empaneling of internationally acclaimed arbitrators and mediators. Best practices from across the world are being taken into consideration to ensure efficient functioning of the centre and for drafting of the rules. With a global perspective and an emphasis on quality, I can assure you that it would soon be comparable to Arbitral Institutions like the Singapore International Arbitration Centre., The Honorable Chief Minister has already explained at length about the benefits of having this centre in Hyderabad and the steps being taken by the Government to make it a robust hub for international arbitration and mediation. One advantage this centre has is its location. Hyderabad has several companies relating to pharma, biotech, aerospace, information technology, real estate, etc. Hyderabad is one of the fastest growing cities in India, economically. All the statistics indicate that Hyderabad is a top destination for business and commerce in the country. Year‑round connectivity with all major cities of the world. World‑class international airport, rail and road connectivity. Accommodation in world‑class hotels. It has pleasant weather throughout. The people are welcoming, warm and cooperative., As everyone knows, arbitration can be run in two different manners, either through an ad hoc process or through an institutional set‑up. Both forms of arbitration provide a different set of benefits, and these must be considered before a party decides which form of arbitration they wish to pursue. For instance, institutional arbitration has the following benefits: rules and procedures which ensure uniformity and certainty with respect to what to expect; list of internationally renowned arbitrators with specified fields of expertise; administrative assistance by an experienced secretariat; physical facilities and other support services such as video‑conferencing facilities. The above reason is why most commercial entities, particularly international companies with bigger claims, are choosing institutional arbitration., I do not want to discuss the above in detail. There are already sessions which have been organised today where many of these issues will be tackled in detail. If you spend half a day here, then many of the issues and doubts that you have in mind will be clarified. This could be of immense help to your business., Now, nobody can say that there is no need to know law or to understand the legal system. The legal system pervades every part of our lives – be it personal or professional. If you attend these sessions which are being chaired by my eminent brother and sister judges, I am sure your learnings will be immense. The participants in the two sessions are committed individuals who are renowned globally for their knowledge in the subject. This is a great opportunity for all of you., Even though I am the Chief Justice of India and I belong to the country, taking into consideration several factors, I wanted to contribute in a small way to initiate and establish an arbitration centre. I am happy that after my initial suggestion and thoughts, Brother Justice Nageswara Rao suggested that instead of a small arbitration centre, a full‑scale international institutional arbitration and mediation centre would help the arbitration and mediation landscape in India a lot., When I expressed my thoughts for the first time in Hyderabad in June this year, the Chief Minister reacted in a positive manner and has provided all support without any delay. Our thoughts became a reality only with the help of the Chief Minister and the Government. Justice Raveendran is renowned in this field. He spent a lot of time and effort in making this vision of ours a reality. He is the main person who has framed and structured this institution's rules and functioning. He is a great person, eminently knowledgeable and an extremely humble person., I am happy to see my illustrious senior from the Supreme Court, Justice Kurian Joseph, here. I request him to guide this centre with his erudition and experience. My brother Justice Subash Reddy is a son of the soil. He is actively taking interest in the development of this project. His encouragement and support are invaluable, and I thank him for the same., Sister Justice Hima Kohli, while she was the Chief Justice of the Telangana High Court, contributed immensely by providing support for the establishment of this centre. I am glad that she continues to be the trustee of this centre., I would also like to thank the Chief Justice of the Telangana High Court, Shri Justice Satish Chandra Sharma. Since he has taken over, he has infused new energy and has taken an active interest in the project. I thank him for his support., The efforts put in by the Registrar General Dr. D. Nagarjun deserve special mention. From the day this idea was conceived, he has been actively coordinating between all the stakeholders to take the project forward. He is on this job round the clock. His hard work and sincerity are highly appreciated., I would like to sincerely thank the Law Minister, the Minister for Information Technology, the Chief Secretary, the Information Technology Secretary and the Law Secretary of the Government of Telangana for their invaluable support., Finally, I would like to thank everyone who has been a part of organizing today's symposium. The two panel discussions that will be taking place later today, chaired by my brother and sister judges of the Supreme Court with other distinguished experts participating, will illuminate certain nuances surrounding arbitration and mediation in the country. I am sure this centre will be a boon to the landscape of arbitration and mediation in the country. The outcome of the process will command respect as there will be sanctity of the process. I hope that such conferences continue to be organized under this centre, and that the centre will lead the way forward in India.
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The Special Judge for trial of the cases under the Protection of Children from Sexual Offences Act, 2012, Bhanupratappur, Uttar Bastar Kanker, vide judgment dated 30 October 2018 passed in Special Criminal Case (Protection of Children from Sexual Offences Act, 2012) No. 17 of 2017 convicted and sentenced the accused/Appellant as follows: Conviction under Section 363 of the Indian Penal Code – rigorous imprisonment for seven years and fine of Rs. 500, with an additional rigorous imprisonment for three months in default of payment; Conviction under Section 376(2)(i) of the Indian Penal Code – imprisonment for life and fine of Rs. 1,000, with an additional rigorous imprisonment for six months in default of payment; Conviction under Section 302 of the Indian Penal Code – death sentence and fine of Rs. 1,000, with an additional rigorous imprisonment for six months in default of payment; Conviction under Section 6 of the Protection of Children from Sexual Offences Act – in view of the provisions contained in Section 42 of the Act, alternatively a greater sentence is awarded under Section 376(2)(i) of the Indian Penal Code. All the jail sentences are directed to run concurrently., The Special Judge, in exercise of the powers conferred under Section 366(1) of the Code of Criminal Procedure, after passing the sentence of death, has submitted the proceedings to the High Court of Chhattisgarh for confirmation. This reference is before us for consideration along with Criminal Appeal No. 1889 of 2018 moved by the Appellant, whereby he has challenged the conviction and sentence imposed upon him by the Special Judge., According to the prosecution, at the time of the incident the victim girl child (deceased) was aged about four years. On 4 March 2015, PW4 Jaitaram, the grandfather of the victim, reported that the accused/Appellant kidnapped the victim at about 7 p.m. A missing report of the victim under Section 363 of the Indian Penal Code was registered at Police Station Durgkondal, District Uttar Bastar Kanker. Search was made and during investigation the Appellant was taken into custody on 7 March 2015. His disclosure statement (Ex. P1) was recorded under Section 27 of the Indian Evidence Act and, at his instance, the body of the victim was recovered vide Ex. P2. The body was duly identified by complainant PW4 Jaitaram vide identification panchnama (Ex. P3). The inquest panchnama (Ex. P10) was prepared. From the spot, a green‑coloured legging, blood‑stained soil and plain soil were seized. The dead body of the victim was sent for post‑mortem examination, which was conducted by PW9 Dr. Bhagyalaxmi Kosma. The post‑mortem report is Ex. P17. The doctor opined that death of the victim was homicidal in nature, that the victim was subjected to sexual offence and that the cause of death was asphyxia due to upper airway obstruction. Vaginal slide, swab and blood‑stained frock were also seized. Statements of witnesses were recorded under Section 161 of the Code of Criminal Procedure. The under‑garment stained with semen and blood, which was worn by the Appellant at the time of the incident, was also seized. The Appellant was examined by PW10 Dr. A. K. Dhruw, and semen slides were prepared and seized. The seized articles were sent to the Forensic Science Laboratory for chemical examination; the FSL report is Ex. P37. On completion of the investigation, a charge‑sheet was filed., The Trial Court framed charges. The prosecution examined eleven witnesses and exhibited thirty‑seven documents. In examination under Section 313 of the Code of Criminal Procedure, the Appellant denied guilt and pleaded innocence. No defence witness was examined. After conclusion of the trial, the Special Judge convicted and sentenced the Appellant as mentioned earlier in this judgment., Being aggrieved by the judgment of conviction and sentence, the Appellant preferred an appeal, being Criminal Appeal No. 1889 of 2018 under Section 374(2) of the Code of Criminal Procedure, challenging his conviction and sentence for the aforesaid offences, particularly the capital punishment. In accordance with the provisions contained in Section 366(1) of the Code of Criminal Procedure, the Special Judge submitted the sentence of death to the High Court of Chhattisgarh for confirmation, and both the cases have been clubbed and heard together and are being disposed of by this common judgment., Learned counsel appearing on behalf of the accused/Appellant submitted that the Trial Court convicted the Appellant without sufficient and clinching evidence on record. The conviction is based upon circumstantial evidence and, apart from the last‑seen theory, no other circumstantial evidence is available. On the basis of the last‑seen theory alone, the conviction is not sustainable. It was further argued that the dead body of the victim was recovered after three days of the incident from an open place and that nobody saw the body for three days, making the recovery at the instance of the Appellant suspicious. Alternatively, it was submitted that if the Court finds that the offence punishable under Section 302 of the Indian Penal Code is established against the Appellant, the offence would be covered by Section 300 fourthly of the Indian Penal Code and, therefore, the death sentence can be commuted to life imprisonment. Reliance was placed on (2022) 10 Supreme Court Cases 321 (Pappu v. State of Uttar Pradesh) and 2022 Criminal Law Journal 4177 (Harendra v. State of Uttar Pradesh)., Learned Additional Advocate General appearing for the State submitted that the Trial Court, on due appreciation of the evidence on record, has rightly convicted the accused/Appellant for the aforesaid offences. The theory of last‑seen together is fully established. The dead body of the victim girl was recovered at the instance of the Appellant. The Appellant has not offered any explanation regarding the injuries on his body that would have occurred while attempting forcible sexual intercourse, nor has he explained where he took the victim after abducting her. The entire chain of circumstances clearly shows that the Appellant is the person responsible for the offence. Regarding the death sentence, the State highlighted several aggravating circumstances: (1) the Appellant was a guest in the house, enjoying the utmost trust of the family; (2) he took the victim girl child with him to fetch a biscuit; (3) the victim trusted the Appellant; (4) the Appellant had a well‑planned, cool‑headed scheme for the commission of the offence; (5) the victim’s tender age could not have aroused the Appellant to provoke him; (6) the victim was helpless to resist the Appellant’s savage design, who physically dominated her; (7) the Appellant committed rape and, to conceal his identity, killed the child by throttling; (8) the Appellant showed no remorse and attempted to deviate the investigation; (9) he gave false information to police, demonstrating his ill plan; and (10) he committed the offence with a cool mind and planning without any act of instigation. Accordingly, the act falls within the category of the rarest of the rare cases and deserves the death penalty., We have heard the rival contentions put forth on behalf of the parties as well as the contentions raised by the learned Amicus Curiae. We have also perused the entire evidence available on record, both oral and documentary, with utmost circumspection., We have also perused the conduct reports of the accused/Appellant received from the Superintendent, Central Jail, Raipur dated 13 November 2020 and the report dated 12 November 2020 received from the Superintendent, Central Jail, Jagdalpur, submitted by the learned State counsel, in which the conduct of the Appellant has been reported to be good and normal during the present incarceration., First, we shall examine the evidence with regard to the age of the victim. Relying upon the statement of the investigating officer PW11 I. Tirkey, the statement of PW9 Dr. Bhagyalaxmi Kosma and the birth certificate of the victim marked as A, the Trial Court concluded that at the time of the incident the victim was aged about four years, a finding not disputed by the learned counsel for the Appellant. Accordingly, the Trial Court rightly held that on the date of the incident the victim was four years, nine months and seventeen days old. We affirm this finding., The next question for consideration is whether the death of the victim was homicidal in nature and whether, prior to her homicidal death, any penetrative sexual assault was committed on her., According to the prosecution, after recovery of the dead body, an inquest proceeding was conducted and the body was sent for post‑mortem examination by PW9 Dr. Bhagyalaxmi Kosma (report Ex. P17). The post‑mortem revealed contused abrasions over the left mastoid prominence (1.3 cm x 2 cm), over the right mastoid prominence (2.5 cm x 1.5 cm) produced by the index, middle and ring fingers, and two crescentric nail marks of the index and middle fingers on the right mastoid. Additional contused abrasions were found over the anteromedial aspect of the left arm (5 cm x 5 cm and 2.5 cm x 2.5 cm), over the medial aspect of the right thigh (2.5 cm x 1.5 cm), and multiple small abrasions on both buttocks. The doctor also noted small abrasions on both medial aspects of the thighs, profuse swelling of the lateral and posterior vaginal wall, an irregular ruptured hymen, and a torn hymen extending through the perineal body, posterior vaginal wall up to the anterior wall of the anorectal canal. These injuries were ante‑mortem, indicating commission of a sexual offence, and were of duration three to five days prior to the post‑mortem. The cause of death was asphyxia due to upper airway obstruction, with the mode of death being both throttling and sexual offence; the nature of death was homicidal. There is nothing in the cross‑examination of PW9 that would disbelieve her statement. Accordingly, we affirm the finding that the death was homicidal and that penetrative sexual assault was committed before the homicidal death., Now, the further question for consideration is whether the Appellant is the person who committed the alleged offences of kidnapping, penetrative sexual assault and homicidal death of the victim., The entire case of the prosecution is based upon circumstantial evidence. The law on circumstantial evidence is well settled. When the prosecution relies upon circumstantial evidence, it must not only prove the circumstances but also link them to form an unending chain establishing the guilt of the accused. If there is any chance that the accused is innocent or that the crime was committed by another person, the accused must be given the benefit of doubt and cannot be convicted on circumstantial evidence alone. In Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 Supreme Court Cases 116, the Supreme Court held that (1) the circumstances from which the conclusion of guilt is to be drawn must be fully established; (2) the facts so established should be consistent only with the hypothesis of the accused’s guilt and not explainable on any other hypothesis; (3) the circumstances should be of a conclusive nature; (4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused., In Sharad Birdhichand (supra), the Supreme Court further held that suspicion, however strong, cannot replace legal proof. The well‑established rule of criminal justice is that the fouler the crime, the higher the proof required, and in cases involving capital punishment a very careful, cautious and meticulous approach is necessary. This was observed in paragraph 180 of the report: “It must be recalled that the well‑established rule of criminal justice is that the fouler the crime, the higher the proof. In the instant case, the life and liberty of a subject was at stake. As the accused was given a capital sentence, a very careful, cautious and meticulous approach was necessary.”, The first circumstance relied upon by the prosecution and found proved by the Trial Court is that the Appellant was lastly seen together with the victim (deceased) on 4 March 2015 at about 7 p.m., and thereafter she was found dead on 7 March 2015 when her dead body was recovered., The prosecution relied upon the statements of PW1 Anil Kumar Gawde, PW2 Kumbhkaran, PW4 Jaitaram, PW5 Mesram and PW7 Aayto Bai. PW1, the father of the victim, deposed that on 4 March 2015 the Appellant, along with Rajesh Kureti and PW5 Mesram, came to their village to take their motorcycle, stayed in his house and consumed liquor with PW4 Jaitaram. Afterwards, PW4 Jaitaram, PW5 Mesram, Rajesh Kureti and the Appellant went to a local shop to consume gutkha, during which the Appellant kept the victim in his lap. After consuming gutkha, the group returned, and PW4 Jaitaram told that the Appellant would bring the victim back after giving her a biscuit. PW4 Jaitaram further deposed that the Appellant stopped at Atal Chowk with the victim, kept her in his lap, and was not seen 10‑15 minutes later. PW5 Mesram corroborated that the Appellant, while holding the victim in his lap, said he would take her to the shop for a biscuit but did not return. PW7 Aayto Bai, wife of Jaitaram, also deposed that the Appellant had taken the victim in his lap and she saw him taking the victim with him., A careful perusal of the above statements shows that on the date of the incident the Appellant, along with PW5 Mesram and Rajesh Kureti, came to Village Dhanpatari (the victim’s village), stayed in PW1’s house, consumed liquor with PW4 Jaitaram, and went to a gutkha shop where the Appellant kept the victim in his lap. After the others returned from the shop, the Appellant took the victim away, telling them he would fetch a biscuit, but he did not return. PW2 Kumbhkaran also deposed that on the date of the incident at about 7 p.m., PW4 Jaitaram and his three guest boys came to his shop and one of the guests kept the victim in his lap., The next circumstance relied upon by the prosecution and found proved by the Trial Court is that on 7 March 2015, based on the Appellant’s disclosure statement (Ex. P1), the dead body of the victim was recovered vide Ex. P2 and duly identified by PW4 Jaitaram vide Ex. P3. Investigating Officer PW11 I. Tirkey deposed that during the investigation he took the Appellant into custody, recorded the disclosure statement (Ex. P1), and at the Appellant’s instance the dead body was recovered vide Ex. P2 and identified by PW4 Jaitaram. PW3 Siyaram Gawde, a witness to the disclosure statement and recovery, stated that on 7 March 2015 the Appellant narrated that the dead body was lying in the field of Banshilal, after which the Appellant was taken to the spot and the body was recovered and identified. PW1 Anil Kumar Gawde and PW7 Aayto Bai also deposed that the dead body was recovered at the Appellant’s instance. Although the field of Banshilal was an open place, there is no record showing that it was accessible to the public or easily visible; the field was out of the village and away from the common path. Hence, we find no substance in the argument that the recovery was not done at the Appellant’s instance., The next circumstance relied upon by the prosecution and found proved by the Court is that the Appellant has not offered any explanation for the injuries found on his body. After arrest, the Appellant underwent medical examination by PW10 Dr. A. K. Dhruw, which revealed an abrasion of 2 cm x 1 cm on the left side of his face and abrasions on both knees. The doctor opined that these injuries could have occurred during the commission of sexual intercourse. The Appellant, in his statement under Section 313 of the Code of Criminal Procedure, did not explain how these injuries occurred. The Trial Court rightly found this circumstance proved against the Appellant., During the investigation, one underwear of the Appellant was seized vide Ex. P7, and the seizure was proved by witnesses. The recovered underwear, swab of the victim and semen of the Appellant were sent for chemical examination; the Forensic Science Laboratory report (Ex. P37) found sperm and blood on the Appellant’s underwear. The Appellant, in his statement recorded under Section 313 of the Code of Criminal Procedure, offered no explanation for this finding., Considering the entire evidence on record, the circumstances duly proved against the Appellant are: (1) the theory of last‑seen together is established; (2) at the Appellant’s instance the dead body of the victim was recovered on 7 March 2015; (3) the post‑mortem report states that death was homicidal in nature and caused by asphyxia due to upper airway obstruction; (4) penetrative sexual assault was committed before the victim’s death; (5) human sperm and blood were found on the Appellant’s underwear, with no explanation offered; and (6) injuries were found on the Appellant’s face and both knees, with no explanation offered., Considering the above and after appreciating the entire evidence on record, we find that the chain of circumstances has been duly established against the Appellant. We do not find any illegality in the appreciation of oral, medical and circumstantial evidence or in the Trial Court’s conclusion of guilt. Accordingly, we affirm the conviction of the Appellant for the offences mentioned in the first paragraph of this judgment., The next question is the death sentence awarded to the Appellant by the Special Judge, directing that he should be hanged till death, which has been sent to us for confirmation in accordance with the provision contained in Section 366(1) of the Code of Criminal Procedure., It must now be examined whether this case falls within the category of the rarest of the rare cases justifying capital punishment. The Supreme Court, in a series of judgments, has laid down principles for awarding capital punishment, requiring a balance between aggravating and mitigating circumstances. While convicting an accused for an offence punishable under Section 302 of the Indian Penal Code, or for any offence punishable with death or, alternatively, for imprisonment for life, the Court must assign a special reason for awarding such penalty and a special reason for awarding the death sentence in accordance with sub‑section (3) of Section 354 of the Code of Criminal Procedure., The Supreme Court in Manoj v. State of Madhya Pradesh, (2023) 2 Supreme Court Cases 353, reviewing case law from Bachan Singh v. State of Punjab, (1980) 2 Supreme Court Cases 684, held in paragraph 237 that mitigating factors, rather than excuse or justify the crime, seek to explain the surrounding circumstances of the accused to enable the Judge to decide between death penalty or life imprisonment. An illustrative list of indicators first recognised in Bachan Singh includes: (1) the offence was committed under extreme mental or emotional disturbance; (2) the age of the accused – a young or old accused should not be sentenced to death; (3) the probability that the accused would not commit further violent acts constituting a continuing threat to society; (4) the probability that the accused can be reformed and rehabilitated, which the State must prove the accused does not satisfy; (5) that the accused believed he was morally justified in committing the offence; (6) that the accused acted under duress or domination of another person; and (7) that the accused was mentally defective, impairing his capacity to appreciate the criminality of his conduct.
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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., It is pertinent to point out that the Supreme Court of India in Anil v. State of Maharashtra, (2014) 4 Supreme Court Cases 69 has directed criminal courts to call for additional material (Supreme Court Cases page 86, paragraph 33). Many times, while determining the sentence, courts assume that the accused would be a menace to society and that there is no possibility of reformation and rehabilitation, whereas it is the duty of the court to ascertain those factors and the State is obliged to furnish material for and against the possibility of reformation and rehabilitation of the accused. The facts which the courts deal with in a given case cannot be the foundation for reaching such a conclusion, which calls for additional materials. Accordingly, the criminal courts, while dealing with offences such as Section 302 of the Indian Penal Code, after conviction, may, in appropriate cases, call for a report to determine whether the accused could be reformed or rehabilitated, depending on the facts and circumstances of each case. The Supreme Court of India fully endorses and directs that this should be implemented uniformly for convictions of offences that carry the possibility of the death sentence., Reverting to the facts of the present case, in light of the aforesaid guidelines issued by the Supreme Court of India in Manoj (supra), it is evident that the Trial Court convicted the appellant and sentenced him to death on 30 October 2018. The Trial Court did not consider the probability of the appellant being reformed and rehabilitated and only considered the crime and the manner in which it was committed. The Trial Court also did not give an effective opportunity of hearing to the appellant on the question of sentence, nor was any evidence produced to show that the appellant cannot be reformed and rehabilitated. Reports from the concerned jails have been produced before this Court, indicating that the appellant’s behaviour has been good and normal, with no offence committed in jail. There is no evidence on record that the appellant cannot be reformed and rehabilitated; at the time of the offence he was about 20 years old and he belongs to the Scheduled Castes/Scheduled Tribes, and his chances of reformation and rehabilitation cannot be ruled out., Considering the jail reports, the absence of criminal antecedents, and the young age of the appellant, we are of the view that the extreme sentence of death is not warranted in this case. In the facts and circumstances, this is not a rarest‑of‑the‑rare case in which the death penalty must be confirmed. Imprisonment for life would be adequate and would meet the ends of justice. Accordingly, we direct commutation of the death sentence into imprisonment for life, which must extend to the remainder of the natural life of the appellant., Consequently, Criminal Reference No. 3 of 2018 made by the learned Special Judge, to the extent of confirmation of the imposition of the death sentence on the appellant, is rejected., Criminal Appeal No. 1889 of 2018 preferred on behalf of the accused/appellant is partly allowed. The conviction of the appellant under Sections 363, 376(2)(i) and 302 of the Indian Penal Code and Section 6 of the Protection of Children from Sexual Offences Act is confirmed, but his sentence of death is commuted to imprisonment for life while maintaining the fine amount., The Registrar (Judicial) is directed to send a duly attested copy of this judgment to the concerned Special Judge as mandated in Section 371 of the Code of Criminal Procedure for needful action.
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Appointment of Judges in High Courts\n\nThe Minister of Law and Justice is requested to state:\n\n(a) the number of judges appointed in each High Court since 2014, broken down by category;\n\n(b) the details of vacant positions of judges in each High Court, together with the reasons for such vacancies;\n\n(c) the details of the new seats created for judges in each High Court since 2014;\n\n(d) whether the Government has undertaken steps to fill the large number of vacancies of judges in High Courts, and if so, the details thereof;\n\n(e) whether the Government has undertaken steps to ensure that the composition of the higher judiciary reflects the socio‑economic diversity of the country, and if so, the details thereof., A statement showing the details of appointment of judges to the High Courts since 2014 is enclosed as Annexure‑A. As on 14 March 2022, against the sanctioned strength of 1,104 judges in the High Courts, 699 judges are in position, leaving 405 vacancies to be filled. Of the 405 vacancies, 175 proposals are at various stages of processing between the Government and the Supreme Court Collegium. Further recommendations from High Court Collegiums are yet to be received for 230 vacancies. The current strength of judges in the High Courts and details of vacant positions are enclosed as Annexure‑B., Filling up vacancies in the High Courts is a continuous, integrated and collaborative process between the Executive and the Judiciary. It requires consultation and approval from various constitutional authorities at both the State and Centre level. While every effort is made to fill existing vacancies expeditiously, vacancies arise on account of retirement, resignation, elevation of judges and also due to increase in the strength of judges., Since 2014, a total of 198 seats of judges have been created in various High Courts; the details are provided in Annexure‑C., Appointment of judges of the High Courts is made under Articles 217 and 224 of the Constitution of India, which do not provide for reservation for any caste or class of persons. However, the Government is committed to social diversity in the appointment of judges in the higher judiciary and has been requesting the Chief Justices of High Courts that while sending proposals for appointment of judges, due consideration be given to suitable candidates belonging to Scheduled Castes, Scheduled Tribes, Other Backward Classes, Minorities and Women to ensure social diversity., High Court – Years – Total appointments (since 2014)\n\nAllahabad – 13 – 05 – 20 – 31 – 28 – 10 – 04 – 17 – 128\nAndhra Pradesh – – – 01 – 10 – – 02 – 07 – 02 – 07 – 29\nBombay – 14 – 04 – 06 – 14 – 04 – 11 – 04 – 06 – 63\nCalcutta – 01 – – 01 – 06 – 11 – 06 – 01 – 08 – 34\nChhattisgarh – 02 – – 03 – 03 – 04 – – – 03 – 15\nDelhi – 04 – 08 – 05 – 04 – 05 – 04 – – 02 – 04 – 36\nGauhati – – – 05 – 02 – 02 – 04 – – 06 – 19\nGujarat – 01 – 02 – 05 – – 04 – 03 – 07 – 07 – 29\nHimachal Pradesh – 03 – – 04 – – – 02 – – 01 – 10\nJ & K and Ladakh – – 01 – – 03 – 02 – – 05 – 02 – 13\nJharkhand – 03 – – 04 – 02 – 03 – 02 – – 04 – 18\nKarnataka – 05 – – 05 – 02 – 12 – 10 – 10 – 06 – 50\nKerala – 06 – – 05 – 03 – 04 – 01 – 06 – 12 – 37\nMadhya Pradesh – 07 – 01 – 18 – – 08 – 02 – – 08 – 06 – 50\nMadras – – 08 – 25 – 12 – 08 – 01 – 10 – 05 – 69\nManipur – 01 – – 01 – – – – 01 – – – 03\nMeghalaya – – – – – 01 – 01 – – – – 02\nOrissa – 03 – – – – 01 – 01 – 02 – 04 – 14\nPatna – 04 – – 06 – 06 – – 04 – – 06 – 26\nPunjab & Haryana – 14 – – 01 – 08 – 07 – 10 – 01 – 06 – 47\nRajasthan – 01 – 09 – 11 – 05 – – 03 – 06 – 08 – 43\nSikkim – – – – 01 – – – – – 01\nTelangana – – – – – – 03 – 01 – 07 – 11\nTripura – – – – 01 – – 01 – – – 02\nUttarakhand – – – 03 – 03 – 01 – – – – 07\nTotal – 82 – 38 – 126 – 115 – 108 – 81 – 66 – 120 – 756 (as on 14 March 2022)., Sanctioned strength, working strength and vacancies across various High Courts (as on 14 March 2022)\n\nSupreme Court – Sanctioned strength: 34 – Working strength: 32 – Vacancies: 2\n\nAllahabad – Sanctioned: Permanent 120, Additional 40, Total 160; Working: Permanent 74, Additional 19, Total 93; Vacancies: Permanent 46, Additional 21, Total 67\nAndhra Pradesh – Sanctioned: Permanent 28, Additional 9, Total 37; Working: Permanent 26, Additional 0, Total 26; Vacancies: Permanent 2, Additional 9, Total 11\nBombay – Sanctioned: Permanent 71, Additional 23, Total 94; Working: Permanent 51, Additional 7, Total 58; Vacancies: Permanent 20, Additional 16, Total 36\nCalcutta – Sanctioned: Permanent 54, Additional 18, Total 72; Working: Permanent 31, Additional 8, Total 39; Vacancies: Permanent 23, Additional 10, Total 33\nChhattisgarh – Sanctioned: Permanent 17, Additional 5, Total 22; Working: Permanent 10, Additional 3, Total 13; Vacancies: Permanent 7, Additional 2, Total 9\nDelhi – Sanctioned: Permanent 45, Additional 15, Total 60; Working: Permanent 33, Additional 0, Total 33; Vacancies: Permanent 12, Additional 15, Total 27\nGauhati – Sanctioned: Permanent 18, Additional 6, Total 24; Working: Permanent 17, Additional 6, Total 23; Vacancies: Permanent 1, Additional 0, Total 1\nGujarat – Sanctioned: Permanent 39, Additional 13, Total 52; Working: Permanent 32, Additional 0, Total 32; Vacancies: Permanent 7, Additional 13, Total 20\nHimachal Pradesh – Sanctioned: Permanent 10, Additional 3, Total 13; Working: Permanent 8, Additional 1, Total 9; Vacancies: Permanent 2, Additional 2, Total 4\nJ & K and Ladakh – Sanctioned: Permanent 13, Additional 4, Total 17; Working: Permanent 13, Additional 0, Total 13; Vacancies: Permanent 0, Additional 4, Total 4\nJharkhand – Sanctioned: Permanent 19, Additional 6, Total 25; Working: Permanent 19, Additional 1, Total 20; Vacancies: Permanent 0, Additional 5, Total 5\nKarnataka – Sanctioned: Permanent 47, Additional 15, Total 62; Working: Permanent 39, Additional 6, Total 45; Vacancies: Permanent 8, Additional 9, Total 17\nKerala – Sanctioned: Permanent 35, Additional 12, Total 47; Working: Permanent 27, Additional 12, Total 39; Vacancies: Permanent 8, Additional 0, Total 8\nMadhya Pradesh – Sanctioned: Permanent 40, Additional 13, Total 53; Working: Permanent 35, Additional 0, Total 35; Vacancies: Permanent 5, Additional 13, Total 18\nMadras – Sanctioned: Permanent 56, Additional 19, Total 75; Working: Permanent 44, Additional 15, Total 59; Vacancies: Permanent 12, Additional 4, Total 16\nManipur – Sanctioned: Permanent 4, Additional 1, Total 5; Working: Permanent 3, Additional 1, Total 4; Vacancies: Permanent 1, Additional 0, Total 1\nMeghalaya – Sanctioned: Permanent 3, Additional 1, Total 4; Working: Permanent 3, Additional 0, Total 3; Vacancies: Permanent 0, Additional 1, Total 1\nOrissa – Sanctioned: Permanent 24, Additional 9, Total 33; Working: Permanent 21, Additional 0, Total 21; Vacancies: Permanent 3, Additional 9, Total 12\nPatna – Sanctioned: Permanent 40, Additional 13, Total 53; Working: Permanent 25, Additional 0, Total 25; Vacancies: Permanent 15, Additional 13, Total 28\nPunjab & Haryana – Sanctioned: Permanent 64, Additional 21, Total 85; Working: Permanent 43, Additional 6, Total 49; Vacancies: Permanent 21, Additional 15, Total 36\nRajasthan – Sanctioned: Permanent 38, Additional 12, Total 50; Working: Permanent 26, Additional 0, Total 26; Vacancies: Permanent 12, Additional 12, Total 24\nSikkim – Sanctioned: Permanent 3, Additional 0, Total 3; Working: Permanent 3, Additional 0, Total 3; Vacancies: Permanent 0, Additional 0, Total 0\nTelangana – Sanctioned: Permanent 32, Additional 10, Total 42; Working: Permanent 19, Additional 0, Total 19; Vacancies: Permanent 13, Additional 10, Total 23\nTripura – Sanctioned: Permanent 4, Additional 1, Total 5; Working: Permanent 5, Additional 0, Total 5; Vacancies: Permanent -1, Additional 1, Total 0\nUttarakhand – Sanctioned: Permanent 9, Additional 2, Total 11; Working: Permanent 7, Additional 0, Total 7; Vacancies: Permanent 2, Additional 2, Total 4\n\nTotal – Sanctioned: 833 permanent, 271 additional, 1,104 total; Working: 614 permanent, 85 additional, 699 total; Vacancies: 219 permanent, 186 additional, 405 total.
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The National Investigation Agency, Ministry of Home Affairs, Government of India, Cumballa Hill Telephone Exchange, 7th Floor, Peddar Road, Mumbai. Appellant: National Investigation Agency (NIA). Respondent: Areeb Ejaz Majeed, residing at C Wing, Flat No. 206, Sarvodaya Residency, Patri Pool, Kalyan (West), District Thane and also at 46/17, Majeed House, Annasaheb Vartak Road, Kalyan. Respondent appeared in person and was produced in the National Investigation Agency Court by Arthur Road Central Prison, Mumbai. Counsel for the appellant NIA were Mr. Anil C. Singh, Additional Solicitor General, with Mr. Sandesh Patil, Mr. Aditya Thakkar and Mr. D. P. Singh on behalf of Mr. Vishal Goutam., The National Investigation Agency has filed the present appeal challenging the order dated 17/03/2020 passed by the Additional Sessions Judge and Special Judge under the National Investigation Agency Court, Greater Mumbai, whereby the bail application filed by the respondent was allowed and the respondent was directed to be released on bail subject to specific conditions. The National Investigation Agency Court granted a stay of its own order till 27/03/2020. The NIA immediately approached the Supreme Court of India by filing the present appeal. On 26/03/2020, the Supreme Court of India continued the stay of the aforesaid impugned order, as a consequence of which the respondent has continued in custody., The facts leading to filing of the present appeal are that on 28/01/2014 a First Information Report was registered at the behest of the NIA against the respondent for offences punishable under Section 125 of the Indian Penal Code and Sections 16, 18 and 20 of the Unlawful Activities (Prevention) Act, 1967. The NIA alleged that the respondent, along with three absconding accused persons, had visited Iraq ostensibly for pilgrimage but never visited the sites of pilgrimage and instead escaped into Iraq and Syria with the intention of indulging in jihadi activities by joining the Islamic State for Iraq and Levant (ISIL). According to the NIA, the accused persons, including the respondent, formed an unlawful association with an intention to promote terrorism in Iraq, Syria and India, participated in terrorist activities in Syria and Iraq and were likely to commit such acts in India. The respondent allegedly returned to India with the intention of carrying out terrorist acts, including blowing up the Police Headquarters at Mumbai., On 29/01/2014 the NIA arrested the respondent and produced him before the jurisdictional National Investigation Agency Court at Mumbai, where he was remanded to police custody. Investigation was undertaken and a detailed charge‑sheet running into thousands of pages was filed in the National Investigation Agency Court against the respondent. There is no dispute that the respondent has remained in custody since the date of his arrest, amounting to more than six years., The respondent initially applied for grant of default bail, which was rejected. He thereafter filed two applications for grant of bail on merits, both of which were dismissed, and the appeals against those orders were rejected by the Supreme Court of India. He then moved another bail application before the National Investigation Agency Court, which was also rejected on merits. In the appeal filed against that order, a Division Bench of the Supreme Court of India recorded that certain materials, including depositions of witnesses examined by the prosecution that allegedly deviated from their statements in the charge‑sheet, were not looked into by the National Investigation Agency Court. Consequently, the matter was sent back to the National Investigation Agency Court for fresh consideration of the bail application. By order dated 04/02/2020, the Supreme Court of India quashed the order of the National Investigation Agency Court in Criminal Appeal No. 1341 of 2019, directing that the bail application (Ex‑445) filed by the respondent be restored to the file of the National Investigation Agency Court for fresh consideration. The National Investigation Agency Court thereafter heard arguments afresh and passed the impugned order dated 17/03/2020, conditionally allowing the bail application of the respondent., While passing the impugned judgment and order, the National Investigation Agency Court proceeded on two aspects. Firstly, it observed that the pace of the trial was slow and there was a likelihood of a long time required for examining the remaining witnesses. Relying on the law laid down by the Honourable Supreme Court in Shaheen Welfare Association v. Union of India & Ors., the Court held that bail could be granted on this aspect. Secondly, the Court considered the material on record, particularly the depositions of witnesses already examined by the prosecution, and found that at that stage, with about 49 witnesses examined, the prosecution had not succeeded in proving a prima facie case. Referring to Section 43D(5) of the Unlawful Activities (Prevention) Act, the Court held in favour of the respondent on this aspect as well and granted relief., Mr. Anil Singh, the Additional Solicitor General, appeared on behalf of the appellant NIA and submitted that the two aspects on which the National Investigation Agency Court had held in favour of the respondent were erroneously applied to the facts and circumstances of the present case. He argued that when the two earlier bail applications had been rejected on merits after filing of the charge‑sheet, there was no propriety for the National Investigation Agency Court to now hold that the case of the NIA did not appear prima facie true. He contended that examination of some witnesses could not be said to constitute a change in circumstances for entertaining the latest bail application. The Additional Solicitor General further submitted that the Court’s error was compounded by its perusal of depositions of prosecution witnesses already examined to reach a finding that the prosecution had not succeeded in proving a prima facie case, and by its observation that it could not conclude that the prosecution would certainly develop a chain of evidence to establish the respondent’s guilt. He described this as a glaring error., According to the Additional Solicitor General, the approach adopted by the National Investigation Agency Court was fraught with risk because bail applications are likely to be moved by accused persons during the trial when witnesses are being examined, on the ground that the evidence examined so far does not support the prosecution’s case. He submitted that such a course could never be adopted and that once bail applications had been dismissed on merits, particularly in a matter under the Unlawful Activities (Prevention) Act, the Court was expected to allow the examination of witnesses and the trial to be completed without permitting the accused to approach the Court for bail in the interregnum. He urged that the National Investigation Agency Court should have referred to the reasoning given in the earlier two orders rejecting bail applications on merits. He relied on the judgment of the Honourable Supreme Court in Kalyan Chandr Sarkar v. Rajesh Ranjan & Anr., The Additional Solicitor General also submitted that although the considerations for grant of bail and for cancellation of bail are independent, the National Investigation Agency Court completely misdirected itself by considering irrelevant material and ignoring relevant material, including earlier orders rejecting bail. He argued that the impugned judgment and order failed to appreciate settled law and placed reliance on the judgment of the Honourable Supreme Court in Ram Govind Upadhyay v. Sudarshan Singh & Ors., The Additional Solicitor General further submitted that as many as 107 witnesses were yet to be examined by the National Investigation Agency Court, and therefore it was not a stage where the Court could conclude that the prosecution would certainly develop a chain of evidence to prove the respondent’s guilt. He described the approach of the National Investigation Agency Court as absolutely perverse while granting bail. He invited the attention of the Supreme Court of India to serious allegations against the respondent and the absconding co‑accused, noting that the respondent had admittedly left for Iraq with three absconding co‑accused ostensibly for pilgrimage, but they escaped into Iraq and Syria to participate in terrorist activities, a grave crime given the friendly relations between those countries and India., The Additional Solicitor General invited the Court’s attention to various documents and material on record indicating that the absconding co‑accused had posted on social media statements clearly indicating the active participation of the respondent in terrorist activities in Iraq and Syria and the ill intention with which he entered India to commit such acts, including the plan to blow up the Police Headquarters at Mumbai. He also referred to photographs showing the respondent taking training in Iraq and Syria, a travel pass issued by ISIL to the respondent, and a 25‑minute video shown in the Court’s chambers in the presence of the respondent, which he said buttressed the NIA’s claims that the respondent was actively involved in dangerous terrorist activities, justifying the charges under Sections 16 and 18 of the Unlawful Activities (Prevention) Act as well as Section 125 of the Indian Penal Code. He stated that the absconding co‑accused were seen in the video making statements against the sovereignty and integrity of India and planning dreadful terrorist activities in India., The Additional Solicitor General submitted that when the detailed charge‑sheet demonstrated voluminous material against the respondent and two bail applications had already been dismissed on merits after filing of the charge‑sheet, there was absolutely no reason for the National Investigation Agency Court to have allowed bail by the impugned judgment and order. He relied on the judgment of the Honourable Supreme Court in NIA v. Zahoor Ahmad Shah Watali, which pertains to the question of grant of bail to an accused person charged with offences under the Unlawful Activities (Prevention) Act. He argued that releasing the respondent on bail would put witnesses at risk of pressure and prejudice the trial proceedings., Regarding the second aspect that the National Investigation Agency Court considered – that the respondent had been in custody for six years and the trial was proceeding at a slow pace – the Additional Solicitor General submitted that the Court erred. He noted that during the pendency of the present appeal, the Court had examined a few more witnesses and now 107 witnesses remained to be examined. He urged the Supreme Court of India to direct day‑to‑day proceedings before the National Investigation Agency Court so that the trial could be expedited. He further submitted that the Court committed a grave error in applying the ratio of the Shaheen Welfare Association judgment, as no reason was given to categorize the respondent in category (b) as laid down in that judgment. He pointed out that the Shaheen Welfare Association judgment was given as a one‑time measure in the backdrop of accused languishing in jail during trial under the Terrorist and Disruptive Activities (Prevention) Act, 1987, and therefore the National Investigation Agency Court was not justified in holding that the respondent deserved a favourable order merely because the trial was pending for some time. Relying upon Sections 16 and 18 of the Unlawful Activities (Prevention) Act, he noted that if convicted the respondent could be sentenced to life imprisonment, and the pendency of the trial did not justify bail., The Additional Solicitor General referred to the recent judgment of the Honourable Supreme Court in Union of India v. K. A. Najeeb, stating that in that case, the facts were peculiar: the co‑accused were convicted and sentenced to eight years, and having already undergone more than five years of custody, the Supreme Court allowed bail. He argued that such facts were not present in the present case and therefore the impugned judgment and order deserved to be set aside., The respondent, appearing in person, submitted that the National Investigation Agency Court had correctly granted bail by passing the impugned judgment and order. He stated that he had been appearing in person before both the National Investigation Agency Court and the Supreme Court of India, and although he was asked whether he wanted to engage counsel or have an advocate from the legal aid panel appointed, he chose to represent himself. He maintained that he had observed decorum throughout the hearing and sought to demonstrate why the contentions raised on behalf of the NIA were unsustainable., On the aspect of whether the National Investigation Agency Court could consider depositions of witnesses already examined and whether this could constitute a change in circumstances for consideration of a third bail application on merits, the respondent submitted that 12 of the 49 witnesses examined had turned hostile and had to be cross‑examined by the prosecutor. He argued that when key witnesses on whom the NIA relied could not support the case against him, he was entitled to approach the Court for consideration of his bail application on merits, and nothing prevented the National Investigation Agency Court from taking this vital aspect into account while allowing bail., The respondent asserted that the entire case against him was fabricated by the NIA and that there was no material to support the allegations. He admitted that he had left India in 2014 as a 21‑year‑old to Iraq and Syria, but claimed that his father had contacted the NIA and other governmental agencies to bring him back, and that the Indian Consulate at Turkey facilitated his return. He contended that all charges relating to alleged terrorist activities in Iraq and Syria were imaginary and that there was nothing to show his association with the absconding co‑accused for any terrorist act or violence. He further argued that the theory of his returning to India with the intention to commit terrorist acts, including blowing up the Police Headquarters at Mumbai, was also imaginary and that no connection existed to any offence under the Indian Penal Code or the Unlawful Activities (Prevention) Act. He emphasized that although he was charged under Section 20 of the Unlawful Activities (Prevention) Act for being a member of a terrorist organization, the charge was not framed against him, and the Supreme Court of India had confirmed the approach adopted by the National Investigation Agency Court. He noted that the appeal filed by the NIA (Criminal Appeal No. 369 of 2017) challenging the non‑framing of the charge under Section 20 was dismissed by the Supreme Court on 09/08/2017., The respondent submitted that there was an absence of any material to show that even prima facie the accusations against him could be said to be true. Regarding the documents relied upon by the Additional Solicitor General – mainly social media posts allegedly by the absconding co‑accused indicating the respondent’s involvement in terrorist acts – he argued that a detailed perusal demonstrated no connection with him. Concerning the photographs, he stated that merely posing with a gun did not ipso facto prove the accusations. Regarding the alleged ISIL travel pass, he pointed out that the purported transit date was December 2014, whereas he had already been arrested on 29/01/2014. Regarding the video clipping shown to the Court, he asserted that none of the persons in the video ever mentioned his name and no prima facie connection could be established between the video content and himself. He concluded that the National Investigation Agency Court was justified in finding that the prosecution was unable to bring material to show a prima facie case against him and could not conclude that the prosecution could develop a chain of evidence to prove his guilt., The Additional Solicitor General submitted that the ratio of the Shaheen Welfare Association judgment was correctly applied by the National Investigation Agency Court concerning the delay in trial proceedings and the respondent’s six‑year incarceration. He emphasized that the prosecution had taken almost five years to examine 51 witnesses, with 107 witnesses still to be examined, indicating that the trial would take at least six to seven years. He noted that the punishment under Sections 16 and 18 of the Unlawful Activities (Prevention) Act ranged from five years to life imprisonment, indicating that the respondent had already undergone a substantial part of the sentence. He further observed that the National Investigation Agency Court was dealing not only with cases under the NIA Act but also as a special court under the Unlawful Activities (Prevention) Act, the Maharashtra Control of Organized Crime Act, the Terrorist and Disruptive Activities (Prevention) Act, 1987, and the Prevention of Terrorism Act, and that only one day a week was allotted to his case, resulting in extremely slow progress with no prospect of near‑future completion., The respondent placed much emphasis on the recent Supreme Court judgment in K. A. Najeeb, wherein the Court held that when a trial takes a long time and the accused is languishing in jail, the Court may, despite findings against the accused, grant bail under the proviso to Section 43D(5) of the Unlawful Activities (Prevention) Act, as the rigours of that provision would melt down where there is no likelihood of the trial being completed within a reasonable time. He noted that the Supreme Court had also taken note of the Shaheen Welfare Association judgment. On this basis, he submitted that the appeal deserved to be dismissed and categorically stated that he was ready to abide by any condition that the Supreme Court of India may additionally impose for upholding the impugned judgment and order passed by the National Investigation Agency Court., On the basis of the contentions raised by the rival parties, it is clear that two aspects need to be considered while deciding the present appeal. The first question pertains to the approach adopted by the National Investigation Agency Court in entertaining and rendering findings in favour of the respondent when two of his earlier bail applications had been rejected on merits after perusing the detailed material in the charge‑sheet and findings rendered against him, on the touchstone of the proviso to Section 43D(5) of the Unlawful Activities (Prevention) Act. The second question concerns the specific contention raised on behalf of the appellant NIA that the bail application ought not to be permitted to be moved by the accused in the midst of the trial after some prosecution witnesses had been examined, on the basis that the material on record did not support the prosecution’s case. It was submitted that examination of some prosecution witnesses could not be said to constitute a change in circumstance for the accused to move such bail application and that the trial proceedings ought to be permitted to continue uninterrupted., The Supreme Court of India heard the Additional Solicitor General and the respondent‑accused in person. With their assistance, copies of the charge‑sheet and documents placed on record by the appellant were perused. In the present case, there is no dispute that the bail application allowed by the impugned judgment and order was the third bail application on merits moved by the respondent, apart from the first bail application claiming default bail. In other words, two earlier bail applications were rejected on merits with findings that the material on record demonstrated that the accusations against the respondent were prima facie true. These findings had been approved by this Court. In such a situation, the respondent moved the last bail application again on merits on the premise that the 49 witnesses examined so far did not appear to bring home the prosecution’s case, particularly when 12 of those witnesses had turned hostile and had to be cross‑examined by the prosecution. It is on the basis of such material that the respondent claimed that no prima facie case was made out by the prosecution and that, even in future, there was a slim possibility of the prosecution bringing material on record to prove his guilt., We are of the opinion that when two earlier bail applications were rejected on merits, the reasoning given in those orders was required to be adverted to before taking a departure and holding in favour of the respondent. A perusal of the impugned judgment and order clearly shows that no such exercise was undertaken by the National Investigation Agency Court and there was no reference to the reasoning given in the earlier orders whereby the bail applications were rejected. Merely because some prosecution witnesses had been examined, some of whom had turned hostile, could not be a ground to revisit findings on merits rendered twice over when earlier bail applications of the respondent were rejected. If such a procedure were permitted, there would be no end to successive bail applications being moved by the accused, thereby derailing trial proceedings and forcing courts to revisit findings on half‑baked evidence. Conversely, the prosecution could move applications for cancellation of bail already granted, relying on evidence brought on record during the examination of witnesses. This cannot be permitted. This aspect was completely ignored by the National Investigation Agency Court while passing the impugned order., Apart from the lack of reference to the reasoning adopted by the National Investigation Agency Court and this Court while rejecting the earlier two bail applications on merits, the findings rendered in favour of the respondent in the impugned judgment and order on merits also appear to be flawed. This is evident from the following extract from the impugned judgment and order: \The prosecution has relied upon many social website accounts allegedly opened and operated by the applicant. The screenshots of activities of those accounts including chatting and other relevant material are flooded in the prosecution case. The prosecution has also examined the cyber technicians to bring on record that those activities were conducted through the applicant’s social media accounts. However, at this stage, the prosecution is unable to bring any such material covering Section 16 of the Unlawful Activities (Prevention) Act for the terrorist act. The submission of SPP Gonsalvis, on the other hand, is acceptable that the present prosecution case is based entirely upon circumstantial evidence and bit by bit the chain of incidents will be proved in the light of the evidence of the prosecution witnesses to be examined one by one. But the examination of all 49 witnesses in this situation does not give even specific direction at this stage to proceed further. At the examination of all cited witnesses the prosecution would be able to bring on record material to be considered; however, at this stage the prosecution has not succeeded in proving the prima facie case.\, \No doubt, the prosecution discloses grave suspicion against the applicant about his probable involvement in the alleged offence. But this will not itself take the place of a prima facie case as defined by the various decisions of the Higher Courts as discussed (supra).\
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The prosecution is not much categorical to reveal the line of examination of the forthcoming witnesses and their relevance to bring on record material about terrorist acts of the applicant. Thus, at this stage, it cannot be concluded that the prosecution would certainly develop a chain of evidence to reach to desired destination of the guilt of the applicant. No prima facie case can be opined in favour of prosecution in the light of witnesses examined., It is strange that the National Investigation Agency Court had held that at this stage the prosecution had not succeeded to prove prima facie case on the basis of examination of 49 witnesses and that the prosecution had failed to give a specific direction. It is further held that although the prosecution disclosed grave suspicion against the respondent regarding his involvement in the alleged offences but at this stage it cannot be concluded that the prosecution would certainly develop a chain of evidence to reach the desired destination of guilt of the respondent. It is on the basis of such flawed logic that the National Investigation Agency Court then opined that no prima facie case could be said to be made out by the prosecution in the light of the witnesses examined., We are of the opinion that such approach cannot be countenanced particularly in the backdrop of the fact that the finding regarding prima facie truth about the accusations had been rendered twice over against the respondent when the earlier two bail applications were rejected on merits. Learned Additional Solicitor General is, therefore, justified in relying upon the judgment of the Hon'ble Supreme Court of India in Kalyan Chandra Sarkar (supra) wherein it was held in paragraph 20 as follows: Before concluding, we must note though an accused has a right to make successive applications for grant of bail the court entertaining such subsequent bail applications has a duty to consider the reasons and grounds on which the earlier bail applications were rejected. In such cases, the court also has a duty to record what are the fresh grounds which persuade it to take a view different from the one taken in the earlier applications. In the impugned order we do not see any such fresh ground recorded by the High Court while granting bail. It also failed to take into consideration that at least on four occasions order refusing bail has been affirmed by this Court and subsequently when the High Court did grant bail, this Court by its order dated 26th July, 2000 cancelled the said bail by a reasoned order. From the impugned order, we do not notice any indication of the fact that the High Court took note of the grounds which persuaded this Court to cancel the bail. Such approach of the High Court, in our opinion, is violative of the principle of binding nature of judgments of superior court rendered in a lis between the same parties, and in effect tends to ignore and thereby render ineffective the principles enunciated therein which have a binding character., We are of the opinion that the fresh grounds on which the National Investigation Agency Court proceeded in the present case in favour of the respondent cannot be said to be fresh grounds at all and merely because some of the prosecution witnesses stood already examined, it could not be a ground for revisiting the findings already rendered against the respondent. Learned Additional Solicitor General was also justified in relying upon the judgment of the Hon'ble Supreme Court of India in Ram Govind Upadhyay (supra), wherein the Hon'ble Supreme Court referred to the consideration pertaining to grant of bail and cancellation of an order granting bail. It was laid down that non‑consideration of relevant material and aspects while grant of bail and ignoring relevant material could be a ground for interfering with an order granting bail in the present case. We are of the opinion that the National Investigation Agency Court certainly ignored relevant considerations, including the reasoning given in earlier orders rejecting the applications for bail on merits. We are of the opinion that considering evidence of 49 witnesses already examined, when 107 witnesses remained to be examined, was an irrelevant consideration taken into account by the National Investigation Agency Court while holding in favour of the respondent by the impugned judgment and order., In view of the aforesaid, we do not propose to go in detail into the interpretation of the various documents referred to by Learned Additional Solicitor General on the merits of the matter, particularly those on record of the National Investigation Agency Court indicating the connection of the respondent with the absconding co‑accused, as also the proposed activities that the accused were planning to undertake in India. We do not wish to give any opinion on the merits of such documents as also the video clipping, particularly because the detailed charge‑sheet running into thousands of pages is the substratum on the basis of which two bail applications stood rejected on merits. We are of the opinion that such findings rendered on the touchstone of proviso to Section 43D(5) of the Unlawful Activities (Prevention) Act do not deserve to be revisited by detailed consideration of the charge‑sheet again, merely because some prosecution witnesses have been examined, which according to the respondent, do not seem to support the case of the prosecution. It would not be appropriate to comment upon the merits of the rival contentions. Suffice it to say that we believe that the findings rendered in the orders rejecting the earlier two bail applications of the respondent were justified. Therefore, insofar as the aforesaid aspect of the matter is concerned, the impugned judgment and order passed by the National Investigation Agency Court cannot be sustained., But the case of the respondent on the second aspect of the matter appears to be on firm footing. There is no dispute about the fact that right to fair and speedy trial is a right recognized under Article 21 of the Constitution of India. The Hon'ble Supreme Court and various High Courts, including this Court, have consistently held that the under‑trials cannot be allowed to languish for years together in jail, while the trials proceed at a snail's pace. If ultimately, the accused are found to be not guilty, the number of years, months and days spent by such accused as under‑trials in jail can never be given back to them and this is certainly a violation of their valuable right under Article 21 of the Constitution of India. Therefore, right to speedy trial has been recognized and reaffirmed consistently by the judgments of the superior courts., In cases where the accused are facing charges under Special Acts like the Unlawful Activities (Prevention) Act, parameters for grant of bail are more stringent, as a consequence of which, the under‑trials in such cases remain in custody while the trials are pending. This is because they are accused of serious and heinous offences and their rights are required to be balanced with the rights of the society and citizens at large. The courts are required to perform a balancing act, so as to ensure that a golden mean is reached between the rights of the individual and those of the society at large., It is in the context of Special Acts that the Hon'ble Supreme Court in the case of Shaheen Welfare Association (supra) held that the long time taken by courts in disposal of the cases would justify invoking Article 21 of the Constitution of India to issue directions to release the under‑trials on bail. The said judgment was rendered in the context of the Terrorist and Disruptive Activities (Prevention) Act, which also had stringent provisions with regard to grant of bail. Although it was stated in the said judgment itself that the directions given therein were in the form of a one‑time measure, the judgment has been recognized as having laid down principles for grant of bail to under‑trials, who could be classified in different categories., It has been held in the said judgment that the under‑trials could be categorized into three categories, depending upon the role with which they were charged in the context of special provisions of TADA. It was held that those categorized in category (a) were hardcore criminals, whose release would prejudice the prosecution case, apart from being a menace to the society and they could not be given liberal treatment. But it was held that the other under‑trials who could be categorized in categories (b), (c) and (d) could be dealt with differently and depending upon the duration that they had spent in custody, they could be released on bail subject to specific conditions., In the present case, the National Investigation Agency Court has categorized the respondent in category (b) and, by applying the ratio of Shaheen Welfare Association (supra), it has been held that since the respondent has spent more than five years in jail as an under‑trial, he deserved to be granted bail, subject to two stipulations being satisfied. It was found that these two stipulations were firstly that there was no likelihood of the trial being completed in the next six months, and secondly that the respondent did not have any antecedents or that, if released, he would not be harmful to the complainant and witnesses or their family members., It needs to be examined whether the National Investigation Agency Court was justified in holding that the respondent could be categorized in category (b) as indicated in the judgment of Shaheen Welfare Association (supra) and further as to whether he satisfied the aforesaid two stipulations., In the present case, the respondent has been charged with offences under Sections 16 and 18 of the Unlawful Activities (Prevention) Act apart from Section 125 of the Indian Penal Code. There is no dispute about the fact that the charge under Section 20 of the Unlawful Activities (Prevention) Act was not framed by the National Investigation Agency Court itself against the respondent despite the fact that offence under the said section was registered against him. Section 16 of the Unlawful Activities (Prevention) Act pertains to punishment for a terrorist act and specifies that if death has resulted as a consequence of such terrorist act, the accused could be punished with death or imprisonment for life. It further specifies that in any other case, the sentence could be imprisonment for life or for a term not less than five years. Section 18 of the Unlawful Activities (Prevention) Act pertains to punishment for conspiracy and provides that the sentence could range between five years and imprisonment for life. In the present case, the respondent has been charged on the basis that he, along with the absconding co‑accused, committed terrorist acts in Iraq and Syria and further that he actively took part in such acts with the intention to strike terror in the minds of the people. He also stood charged under Section 125 of the Indian Penal Code for waging war against the Governments of Iraq and Syria, who happen to be friendly nations with India. There is also reference made by the National Investigation Agency to the fact that the respondent had allegedly returned to India with an intention to carry out terrorist activities in India, including blowing up of Police Headquarters at Mumbai. In any case, no death was caused by the alleged plans hatched by the respondent, since he was arrested the moment he landed in India., In this backdrop, it cannot be said that the National Investigation Agency Court committed an error in categorizing the respondent in category (b) above and thereby applying stipulations laid down in the judgment of the Hon'ble Supreme Court in Shaheen Welfare Association (supra). There is no dispute about the fact that the respondent has remained in custody as an under‑trial for more than six years now. The process of examining 51 witnesses has taken more than five years and admittedly there are 107 more witnesses to be examined by the prosecution. Therefore, there is no likelihood of the trial being completed within the next six months. It is an admitted position that the proceedings under the National Investigation Agency Act are undertaken by the National Investigation Agency Court once in every week and that the said court is also dealing with cases pertaining to other Special Acts like the Maharashtra Control of Organised Crime Act, Terrorist and Disruptive Activities (Prevention) Act, Prevention of Terrorism Act, etc. Therefore, there is every likelihood of the trial continuing for the next few years. There is also no dispute about the fact that even if convicted for the offence with which the respondent is charged, he could be sentenced for imprisonment for a period ranging between five years and life imprisonment. It is crucial that the respondent has undergone more than six years as an under‑trial., Considering the aforesaid facts, it needs to be examined as to whether the law laid down by the Hon'ble Supreme Court in the context of granting bail to under‑trials, who have already undergone incarceration for number of years, needs to be applied in the case of the respondent. In this context, it is necessary to keep in mind that the respondent is accused of offences under the Special Acts., It is in this context of the aforesaid Special Act like the Unlawful Activities (Prevention) Act that the Hon'ble Supreme Court has rendered the latest pronouncement in the case of K.A. Najeeb (supra). While considering the stringent provisions of the Special Acts i.e. the Unlawful Activities (Prevention) Act pertaining to bail, the Hon'ble Supreme Court has held as follows: It is thus clear to us that the presence of statutory restrictions like Section 43‑D (5) of the Unlawful Activities (Prevention) Act per se does not oust the ability of Constitutional Courts to grant bail on grounds of violation of Part III of the Constitution. Indeed, both the restrictions under a statute as well as the powers exercisable under Constitutional Jurisdiction can be well harmonised. Whereas at commencement of proceedings, courts are expected to appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. Such an approach would safeguard against the possibility of provisions like Section 43‑D (5) of the Unlawful Activities (Prevention) Act being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial., Apart from the fact that the Constitutional Courts can certainly take note of violation of fundamental rights guaranteed under Part III of the Constitution of India, particularly the right to life under Article 21 of the Constitution in the context of right to speedy trial, it is specifically held that the rigours of stringent provisions of bail as found in Section 43D(5) of the Unlawful Activities (Prevention) Act would melt down where there is no likelihood of the trial being completed in a reasonable time and the period of incarceration already undergone exceeds a substantial part of the prescribed sentence. This is an aspect which becomes significant in the facts of the present case. We are conscious of the fact that even a sentence of life imprisonment can be imposed for the offence with which the respondent has been charged under the Unlawful Activities (Prevention) Act and the Indian Penal Code but we cannot ignore the fact that the sentence could range between five years to imprisonment for life. This is particularly significant in the backdrop of the fact that the respondent has admittedly already undergone incarceration for more than six years while the trial is underway before the National Investigation Agency Court. Looking to the pace at which about 51 witnesses have been examined, which took more than five years for the National Investigation Agency Court, there is clearly no likelihood of the trial being completed within a reasonable time in the near future. Therefore, we are of the opinion that on this aspect, no error can be attributed to the impugned judgment and order passed by the National Investigation Agency Court, while holding in favour of the respondent., The other aspect of the matter is, as to whether it can be said that releasing the respondent would amount to prejudicially affecting the trial and whether there would be possibility of influencing the witnesses and tampering with the evidence. We have observed that the respondent is an educated person, who was completing his graduation in Civil Engineering when he left for Iraq at the age of 21 years. He categorically stated before us that as a 21‑year‑old, he was carried away and that he had committed a serious mistake, for which he had already spent more than six years behind bars. In the past more than six years of his incarceration, the respondent has argued his case on his own before the National Investigation Agency Court. He represented his own case before this Court as well as the National Investigation Agency Court and we could find that he was presenting his case by maintaining decorum and in a proper manner. During the course of hearing, it transpired that his father is a doctor of Unani medicine and his sisters are also doctors. His brother is an engineer. This shows that he comes from an educated family and that if stringent conditions are imposed upon him, with an undertaking to cooperate with the trial proceedings before the National Investigation Agency Court, his release on bail may not be harmful to the society at large and it would not adversely affect the trial proceedings before the National Investigation Agency Court., Therefore, we are of the opinion that on the second aspect of the matter, the findings rendered by the National Investigation Agency Court need to be upheld. In view of the above, although we have held that the findings rendered by the National Investigation Agency Court on the merits of the matter in the impugned judgment and order are unsustainable and consequently they are set aside, on the second aspect of the matter pertaining to the long pendency of the trial and the respondent having already undergone incarceration for more than six years, we are inclined to uphold the impugned order on the said ground. Yet, we intend to impose further stringent conditions on the respondent while upholding his release on bail. Consequently, part of the impugned order deserves to be modified by imposition of further conditions. Hence, the following order: (a) The impugned order dated 17/03/2020 passed by the National Investigation Agency Court granting bail to the respondent‑accused is sustained on the ground of the respondent‑accused having already undergone incarceration for more than six years and likelihood of the trial being delayed for a considerable period. The impugned order is accordingly partly modified as under: (b) The respondent‑accused Areeb Ejaz Majeed is released on bail upon furnishing a personal bond of Rs.1,00,000/- with solvent surety bond of two solvent sureties in the like amount on the following terms: (i) The respondent‑accused shall stay with his family at Kalyan and shall submit a list of at least three blood relatives, having permanent abode in Mumbai or its suburbs or Kalyan, District Thane with their detailed residential and working place addresses with documentary proof. (ii) The respondent‑accused and sureties must immediately inform the case in‑charge National Investigation Agency officer in case of change of residential addresses. (iii) The accused shall produce residential address verification certificates of him and surety issued by case in‑charge National Investigation Agency officer after physical verification. (iv) The respondent‑accused shall report to in‑charge National Investigation Agency officer once a week and produce the proof before court on relevant fixed dates. (v) The respondent‑accused shall report to the Kalyan (West) Police Station, Kalyan, Thane twice a day i.e. in the morning between 8.00 a.m. and 10.00 a.m. and in the evening between 6.00 p.m. and 8.00 p.m. on every day for the first two months from the date of his release. Thereafter, he shall report to the said police station once a day in the morning between 8.00 a.m. and 10.00 a.m. on every day for the next two months. Thereafter, he shall report to the said police station on every Monday, Wednesday and Friday in the morning between 8.00 a.m. and 10.00 a.m. for the next two months and thereafter, he shall report to the said police station on every Sunday and Wednesday in the morning between 8.00 a.m. and 10.00 a.m., till conclusion of the trial. (vi) In case he remains absent and arrest warrant is issued against him, then he would not be again released on bail unless special reasons are shown. (vii) The respondent‑accused shall surrender his passport, if any, immediately with case in‑charge National Investigation Agency officer. (viii) The respondent‑accused shall not make any statement regarding the aforesaid proceedings pending before the National Investigation Agency Court in any form of media i.e. print media, electronic media, etc., including social media. (ix) The respondent‑accused shall not indulge in any activity similar to the activities on the basis of which the said FIR stood registered against him for offences under the Indian Penal Code and (x) The respondent‑accused shall not try to establish communication with co‑accused or any other person involved directly or indirectly in similar activities or make any international call to any person indulging in similar activities as alleged against him, through any mode of communication. (c) The respondent‑accused shall co‑operate for expeditious disposal of the trial and, in case the delay is caused by him, then his bail would be liable to be cancelled. (d) The respondent‑accused shall not influence any witnesses or tamper with the evidence either himself or through anyone else. (e) In the event the respondent‑accused violates any of the aforesaid conditions, the relief of bail granted by this Court will be liable to be cancelled., The appeal stands disposed of in above terms., After pronouncement of the judgment and order, Learned Additional Solicitor General orally prayed that this Court may grant stay of the order pronounced today, in view of the fact that the interim order of stay was already operating since 26/03/2020. The respondent‑accused appearing in person opposed the said prayer, submitting that the interim stay was granted by this Court to the order of the National Investigation Agency Court in the backdrop of the fact that the Covid‑19 pandemic had just started, at the relevant time., We have heard Learned Additional Solicitor General as well as the respondent‑accused on this aspect of the matter. We are of the view that since we have partly upheld the order of the National Investigation Agency Court and granted bail to the respondent‑accused, albeit with further stringent conditions, we do not accede to the prayer made by Learned Additional Solicitor General. Accordingly, the oral prayer is rejected., The Registry to immediately forward a copy of this judgment and order to the Superintendent of Bombay Central Prison as well as by e‑mail or any other fastest mode of communication and report compliance of this direction by 3.00 p.m. today.
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Ms. Nandita Saha, Applicant, versus State of Maharashtra, Respondent; Ms. Raadhika Nanda, Applicant, versus State of Maharashtra, Respondent; Mr. Abhishek Yende as well as Surbhi Agrawal as well as Vishal Dhasade for Applicants in both applications; Ms. Mahalakshmi Ganapathy, Applicant for State/Respondent in both; Mr. Pratik Deore in behalf of Dinesh Kadam as well as Amar Thakur for Intervenor in both applications., In both these applications, today a common order is passed because the Applicants seek protection from arrest in connection with the same First Information Report., The Applicants are seeking anticipatory bail in connection with Criminal Reference Number 434 of 2023, registered at Maharashtra Industrial Development Corporation Police Station, Mumbai, under Sections 406, 409 and 420 read with Section 34 of the Indian Penal Code., Heard Mr. Abhishek Yende, learned counsel for the Applicants; Ms. Mahalakshmi Ganapathy, learned Applicant for State/Respondent; and Mr. Pratik Deore, learned counsel for the Intervenor., Mr. Pratik Deore, learned counsel, states that he has instructions to appear for the first informant. He seeks time to file an intervention application. At his instance, today I am adjourning the matter. Since the matter is being adjourned, I have heard the parties for consideration of ad interim relief., The First Information Report is lodged by one Deven Bafna, a Chartered Accountant. He has lodged the First Information Report on behalf of Shri Vivek Oberoi. It is mentioned in the First Information Report that Shri Vivek Oberoi and Smt Priyanka Oberoi had formed a firm which was a Limited Liability Partnership by the name Oberoi Organic LLP. It was established on 24 February 2017. The main business of the firm was production of organic products and to market it throughout India. However, since there was not much demand, they decided to diversify into the film business because they had experience in that field., Shri Vivek Oberoi got acquainted with one Sanjay Saha. The First Information Report mentions that they met in a hotel in February 2020 and decided to establish a firm. Both of them agreed on certain clauses. Accordingly, Shri Oberoi invested Rupees 27 lakhs. He was to get 33.33 percent of shares. The applicant Nandita Saha is mother of Sanjay Saha. Both of them were to get 33.34 percent shares and the balance 33.33 percent shares were to be given to the applicant Raadhika Nanda. Accordingly, a separate firm by the name Anandita Entertainment LLP was formed. The First Information Report goes on to mention various instances where, according to the first informant, Shri Oberoi was cheated of his money. According to the First Information Report, the misappropriation was to the tune of Rupees 1,55,72,814., Learned counsel for the Applicants submitted that the First Information Report itself shows that all the decisions were taken by Shri Sanjay Saha. The main allegations against the present Applicants are that Rupees 5 lakhs were invested in the Tata AIG Life Insurance in the name of applicant Nandita Saha and Rupees 10 lakhs were taken by the applicant Raadhika Nanda by way of her salary. Learned counsel submitted that the clauses in the agreement make provision for such payment. The agreement is dated 01 December 2020. Clause No. 21 mentions that all the partners were to have rights, title and interest in all the assets and properties in proportion to their profit sharing ratio. The partners could draw remuneration subject to profit of the Limited Liability Partnership and approval of all the partners. The agreement also provided for welfare of the partners as mentioned in Clause 38(m). Thus, the allegations attributed against the present Applicants are covered under these clauses. In any case, at the highest, this dispute is between the partners' interests and for that criminal offence is not made out., Considering these submissions, learned counsel for the Applicants has made out a case for grant of ad interim relief., Hence, the following order: (i) In the event of their arrest in connection with Criminal Reference Number 434 of 2023, registered at Maharashtra Industrial Development Corporation Police Station, Mumbai, till the next date, the Applicants be released on bail on executing Personal Recognizance bonds in the sum of Rupees 30,000 each (Rupees Thirty Thousand each only) with one or two sureties each in the like amount. (ii) This order shall operate till 22 February 2024. (iii) The Applicants shall attend the concerned Police Station from 29 January 2024 to 31 January 2024 between 1.00 p.m. to 4.00 p.m. and thereafter as and when called. The Applicants shall cooperate with the investigation. (iv) Stand over to 22 February 2024.
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A petition under Section 439 of the Criminal Procedure Code has been preferred on behalf of the petitioner in FIR No. 226/2019, under Sections 363, 366 and 376 of the Indian Penal Code and Sections 4 and 6 of the Protection of Children from Sexual Offences Act, registered at Police Station Mayur Vihar, Delhi., According to the prosecution, the FIR was registered at Police Station Mayur Vihar on the statement of Mrs. R, mother of the victim, alleging that an unknown person had kidnapped her daughter N, aged about 15 years. The victim was reported missing since 09/07/2019. A habeas corpus application was filed vide Writ Petition No. 3453/2019 on behalf of the complainant after the registration of the FIR. The investigation was transferred to the Anti‑Human Trafficking Unit/Crime Branch. During the investigation the petitioner/accused misled the investigating agency by suppressing the whereabouts of the victim. Polygraph tests of all seven suspects were conducted in view of orders of the Honourable High Court of Delhi in Writ Petition No. 3453/2019., Based on mobile technical surveillance and call data record location, the victim was eventually recovered on 05/10/2021 along with her eight‑month‑old female child from the house of the petitioner/accused. The urine pregnancy test of the victim was positive and she was about one month pregnant., The prosecution alleges that the victim was persuaded and kidnapped by the petitioner/accused Jagbir, aged about 27 years, when the victim was waiting for her boyfriend Shahid (also known as Rahul) at Chilla Village, Mayur Vihar, Delhi. Shahid (Rahul) resided on rent in a house at Chilla Village, where Jagbir worked as caretaker. The petitioner further lured the victim and allegedly married her in a temple in Delhi., Counsel for the petitioner submits that the petitioner has been in custody since 06/10/2021 and that the relationship between the parties was voluntary. It is urged that the age of the victim has not been verified in accordance with law and that the victim, who is the wife of the petitioner, is suffering because of the incarceration of the petitioner. It is further urged that the petitioner is required to look after the victim as well as the minor children. Reliance is placed upon the following authorities: Chaman v. State of NCT of Delhi (BAIL APPLICATION 404/2022, decided 03/03/2022); Roshan v. State Government of NCT of Delhi & Ors. (BAIL APPLICATION 2108/2020, decided 27/11/2020); Sanjeev Kumar Mehra v. State & Ors. (W.P. (CrL) 2441/2019, decided 05/11/2019); Monu v. State (BAIL APPLICATION 2146/2014, decided 03/11/2014); Vishal (also known as Ravi) v. State Government NCT of Delhi (BAIL APPLICATION 2735/2021, decided 12/10/2021); Kundan & Anr. v. State & Ors. (CRL.M.C. 27/2022, decided 21/02/2022); Sunil Mahadev Patil v. State of Maharashtra, 283 (2021) Delhi Law Times 321; Praduman v. State (Govt. of NCT of Delhi) & Anr., 283 (2021) Delhi Law Times 329; ABP Network Private Limited v. Malika Malhotra, 275 (2020) Delhi Law Times 49; Dharmander Singh (also known as Saheb) v. State (Govt. of NCT, Delhi) and 2022 LawSuit (All) 117; Atul Mishra v. State of Uttar Pradesh and 3 Others., It may also be noticed that the victim does not oppose the application for grant of bail., On the other hand, the Additional Public Prosecutor for the State vehemently opposes the bail application and submits that the victim was merely 14 years and six months of age at the time she was lured and kidnapped by the petitioner. It is urged that the entire machinery was kept in the dark by the petitioner who deliberately concealed the particulars of the victim and misled the investigating agency despite the filing of the habeas corpus petition by the mother of the victim., The victim was studying in the ninth class at the time of disappearance and, as per her last attended school documents, her date of birth is 05/01/2005, making her 14 years and six months old at the time of the alleged kidnapping. The petitioner, aged about 27 years, is more than ten years older than the victim and the consent of a minor cannot be recognized in law. The alleged marriage with a minor, as claimed by the petitioner, is in violation of the provisions of the Prohibition of Child Marriage Act, 2006. During the investigation, a DNA profile was generated to determine the biological parents of the baby. It is further submitted that sexual intercourse or sexual act by a man, even with his own wife under fifteen years of age, is classified as rape. Reliance is placed upon Independent Thought v. Union of India & Anr. (2017) 10 SCC 800., The Court has considered the contentions raised and refers to the observations in Satish Kumar Jayanti Lal Dabgar v. State of Gujarat, Criminal Appeal No. 230 of 2013, decided by the Honourable Supreme Court on 10 March 2015, wherein it was observed: (i) The prosecutrix was less than sixteen years of age; therefore clause sixthly of Section 375 of the Indian Penal Code is attracted, making her consent immaterial and inconsequential. (ii) The Legislature introduced this provision with the rationale that a minor is incapable of giving informed consent. Consequently, even if a girl below sixteen years gives consent, the other partner is treated as having committed rape and cannot plead that the act was consensual. (iii) The consent of a girl below sixteen years cannot be treated as a mitigating circumstance., In view of settled law, sexual relationship with a minor is prohibited and the law treats it as an offence even if alleged consent of the minor is claimed. A girl child married below eighteen years faces several adverse challenges, and child marriage is prohibited under the Prohibition of Child Marriage Act, 2006. Section 375 of the Indian Penal Code defines rape and makes it clear that if the woman is under the age of eighteen years, sexual intercourse with her, with or without consent, constitutes rape. This principle was affirmed in Independent Thought v. Union of India (2017) 10 SCC 800, giving a meaningful reading to Exception 2 to Section 375., According to the principles enunciated by the Honourable Supreme Court, any consent, if any, given by a minor girl for the alleged physical relationship cannot be treated as consent in the eyes of law. Sexual exploitation and sexual abuse of children are heinous crimes that must be effectively addressed. The fact that such abuse results in a marital bond or the birth of a child does not mitigate the act of the petitioner, since the consent of a minor is immaterial and inconsequential in law., The sexual exploitation by the petitioner in the present facts clearly falls within aggravated penetrative assault as defined in Section 5 of the Protection of Children from Sexual Offences Act and is punishable under Section 6 of that Act, even if the act is claimed to be consensual. Incidents of luring a minor and entering into a physical relationship, followed by the accused claiming consent, cannot be treated routinely, as rape is a crime against the minor victim and against society. The claim of marriage performed in a temple cannot sanctify the offence, as the victim was a minor and under fifteen years of age at the time of the incident, and the claim of marriage is yet to be proved on record. Statutes concerning the rights of children are special laws and must prevail., There is no evidence suggesting that the victim consented to be taken from her parents’ lawful custody. Rather, the petitioner/accused misled the prosecuting agency, including the victim’s parents, in committing the offence. Since the victim was a minor at the time of occurrence, any claim of consent to sexual intercourse is immaterial. The minor’s alleged infatuation with the alleged kidnapper cannot be permitted as a valid defence, as it would undermine the legislative intent of Section 361 of the Indian Penal Code. Reliance may also be placed upon Anversinh v. State of Gujarat, AIR 2021 SC 477., The contention raised by counsel for the petitioner that the age of the victim has not been correctly assessed by the investigating agency can be duly considered at the stage of trial., The authorities cited by counsel for the petitioner are distinguishable on facts, as in most of the cited cases the age difference between the victim and the petitioner was less and the victims were largely just below the age of majority (i.e., eighteen years). In view of the principles of law laid down in Independent Thought v. Union of India and Jayanti Lal Dabgar v. State of Gujarat, the petitioner does not deserve the discretion of bail. Considering the facts and circumstances of the case, the conduct of the accused/petitioner, and the fact that the victim was about fourteen years and six months old at the time of the incident, the petition is dismissed., Nothing herein shall be construed as an expression of opinion on the merits of the case. A copy of this order shall be forwarded to the Jail Superintendent and the learned Trial Court for information.
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07 December 2021 General Diary / Special Summary Docket WPA(P) 27 of 2021 (Through Video Conference) Supreme Court of India, on its own motion, Dipak Joshi, lodged in Dum Dum Central Correctional Home. Jayanta Narayan Chatterjee, Jayashree Patra, Anirban Ray, Debasish Ghosh for the State. Saikat Banerjee, Juin Dutta Chakraborty for High Court Administration., This suo motu petition was registered by this Court taking note of the factual situation that Dipak Joshi, a person of Nepali origin, was arrested on 12 May 1980 and had remained in detention for almost 41 years without conclusion of trial, awaiting the report of the appropriate authority as regards his mental status because an issue was raised as to whether the said person was fit to withstand trial on a charge of having committed an offence. With the intervention of this Court, Dipak Joshi has been released from Dum Dum Central Correctional Home and handed over to his relatives., The fact remains that Dipak Joshi remained in detention without trial for almost 41 years. Hence, in view of previous proceedings in this Court, the issue of awarding compensation to the said person who has suffered such a long detention arises. Learned counsel for the High Court referred to the West Bengal Correctional Services Prisoners (Unnatural Death Compensation) Scheme, 2019 and submitted that the maximum compensation payable under the scheme is Rs.5 lakh and, taking a clue from the scheme, the maximum compensation should be paid to Dipak Joshi. Learned counsel for the State did not dispute the fact and submitted that the amount can be credited to the account of Dipak Joshi, who is presently in Nepal with his family members, through the Consulate of Nepal., Therefore, we direct the respondent State to pay a sum of Rs.5 lakh by transferring the amount to the account of Dipak Joshi, following the due process of law, within a period of six weeks from today. We make it clear that this payment of compensation will not affect the other rights of Dipak Joshi. The compliance report shall be filed by the State before the next date of hearing.
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CNR No. DLCT 12-0000-38-2024 Complaint Case No. 02/2024 Directorate of Enforcement vs. Arvind Kejriwal 07.02.2024 This is a complaint filed under Section 200 of the Code of Criminal Procedure, 1973. By way of this order, I shall decide whether there is sufficient material for taking cognizance of the offence under Section 174 of the Indian Penal Code, 1860 and grounds for proceeding against the proposed accused Mr. Arvind Kejriwal., Briefly stated, complainant Directorate of Enforcement (in short ED) is an investigating agency under the Department of Revenue, Ministry of Finance, Government of India. The present complaint has been filed through Mr. Sandeep Kumar Sharma, Assistant Director in his official capacity. He is the Investigating Officer investigating the offence of money laundering under the Prevention of Money Laundering Act, 2002 (in short the PMLA or the Act) initiated by the ED vide ECIR/HIU-II/14/2022 dated 22.08.2022 on the basis of CBI FIR No. RC0032022A0053 dated 17.08.2022., The pivot of the investigation is the Delhi Excise Policy, 2021-2022 floated by the Delhi Government. As per the complaint, the investigation so far has revealed that the said policy was formulated as part of a criminal conspiracy by the leaders of Aam Aadmi Party (hereinafter referred to as AAP) with deliberate loopholes to generate and channelise illegal funds unto themselves as well as to AAP. A prosecution complaint was filed by the agency for the offence of money laundering before the concerned Learned Special Court which, it is stated, took cognizance of the offence and summoned the accused persons. During the course of investigation, some arrests including several leaders of AAP were also made., Now, to unearth the role of others, including that of the proposed accused, and to trace further proceeds of the crime, the Investigating Officer sought to examine the proposed accused for the purposes of investigation and summoned him in exercise of his powers under Section 50(2) of the Prevention of Money Laundering Act. The proposed accused is the National Convenor as well as Member of the National Executive Committee of AAP. It is the non‑compliance of these summonses which forms the basis of the present complaint., The Investigating Officer issued four summonses to the proposed accused to appear in person. The first summons dated 30 October 2023 was sent by mail to the official e‑mail ID <cmdelhi@nic.in> and required appearance on 2 November 2023, which was not complied with. The second summons dated 18 December 2023 required appearance on 21 December 2023, also not complied with. The third summons dated 22 December 2023 required appearance on 3 January 2024, again not complied with. The fourth summons dated 12 January 2024 required appearance on 18 or 19 January 2024, which likewise remained un‑complied., All the summonses were duly served despite which the respondent/proposed accused did not appear. The summonses remained un‑complied. Instead, replies were sent by the respondent/proposed accused to each of them wherein certain objections were raised and excuses were made for non‑appearance. The summonses were termed unsustainable in law interalia for their failure to disclose the capacity in which the respondent was being called – as a witness or as a suspect. The complainant has filed the copies of such replies along with the complaint and terms such objections as frivolous. It is submitted that under the scheme of the Prevention of Money Laundering Act, the investigating officer is not required to disclose the capacity under which a person is being summoned and that at the stage of investigation it would be premature to label the summoned person either as a witness or as an accused., Aggrieved by repeated omissions and failure to appear in compliance of the summonses, the complainant has filed the present complaint. It is stated that the proposed accused has intentionally omitted to obey the summons and to attend at the place and time mentioned in the summons, which intention is manifest from the objections and queries raised by him in his replies. It is said that the proposed accused has failed to join the investigation since 2 November 2023, which was the first date fixed for his appearance. Reliance is placed upon Bhambhia Noghanji and Others v State of Kutch, 1954 SCC OnLine Kutch 12 to bring home the point that if attendance of a person summoned was made subject to queries, investigation would be indefinitely postponed and every person would avoid attendance by writing letters and at the same time maintain that the non‑attendance was not willful. Reliance is also placed upon Vijay Madanlal Choudhary & Ors. v Union of India & Ors., 2022 SCC Online SC 929 in support of the case., Thus, it is prayed that the proposed accused be summoned for the offence under Section 174 of the Indian Penal Code. Although details of a total of four un‑complied summonses have been mentioned, with each non‑compliance termed as a separate offence, the subject complaint has been filed only with respect to the first three summonses dated 30 October 2023, 18 December 2023 and 22 December 2023, in terms of Section 219 of the Code of Criminal Procedure. Further, the complaint being filed by a public servant in writing, exemption from examination of the complainant and his witnesses is requested to be dispensed with. Heard. Perused., The grievance of the complainant in the present complaint is the non‑compliance of the summonses issued by the Investigating Officer in exercise of his powers under Section 50(2) of the Prevention of Money Laundering Act. The complainant is investigating the matter registered vide ECIR/HIU-II/14/2022 dated 22 August 2022 revolving around the Delhi Excise Policy 2021-2022. In pursuance of such investigation, a total of four summonses were issued, the details of which have already been mentioned above. However, we are only concerned with the first three summons dated 30 October 2023, 18 December 2023 and 22 December 2023, which form the subject matter of the present complaint., The summonses in question have been issued in respect of an ongoing investigation under the Prevention of Money Laundering Act and to carry out the purposes of the Act, certain authorities have been created therein, Assistant Director being one of them. Under Section 50 of the Act, these authorities interalia have power to summon any person during investigation whose attendance may be considered necessary for giving evidence or to produce record. For ready reference, Section 50(2) and (3) of the Act are reproduced herein below: \n\n(2) The Director, Additional Director, Joint Director, Deputy Director or Assistant Director shall have power to summon any person whose attendance he considers necessary whether to give evidence or to produce any records during the course of any investigation or proceeding under this Act.\n\n(3) All the persons so summoned shall be bound to attend in person or through authorised agents, as such officer may direct, and shall be bound to state the truth upon any subject respecting which they are examined or make statements, and produce such documents as may be required., Further, Section 174 of the Indian Penal Code makes non‑attendance in obedience to an order from a public servant a punishable offence. It states: \n\n174. Non‑attendance in obedience to an order from public servant – Whoever, being legally bound to attend in person or by an agent at a certain place and time in obedience to a summons, notice, order, or proclamation proceeding from any public servant legally competent, as such public servant, to issue the same, intentionally omits to attend at that place or time, or departs from the place where he is bound to attend before the time at which it is lawful for him to depart, shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both; or, if the summons, notice, order or proclamation is to attend in person or by agent in a Court of Justice, with simple imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both., The copies of the summonses in question dated 30 October 2023, 18 December 2023 and 22 December 2023 requiring attendance of the respondent on 2 November 2023, 21 December 2023 and 3 January 2024 respectively have been filed along with the complaint. Their authority to issue such summonses flows from Section 50(2) of the Prevention of Money Laundering Act. The summonses were addressed to the respondent at his official e‑mail address. Delivery is prima facie evidenced from the fact that the proposed accused sent replies dated 2 November 2023, 20 December 2023 and 3 January 2024 wherein reasons for non‑appearance were set out. By virtue of Section 50(3) of the Act, the respondent was legally bound to attend in person but purportedly failed to do so., It is trite that at the stage of cognizance and in determining whether process needs to be issued, a Magistrate has to be satisfied only if the ingredients of the alleged offence are made out and if there are sufficient grounds for proceeding and not if there are sufficient grounds for conviction. In view of the discussion held above, the complaint filed by the complainant accompanied by the supporting documents discloses all the necessary ingredients constituting the offence punishable under Section 174 of the Indian Penal Code. Section 63(4) of the Prevention of Money Laundering Act enables prosecution under Section 174 of the Indian Penal Code for disobedience of any direction under Section 50 of the Act. The complaint has been filed by the Assistant Director in discharge of his official duties and has been filed within limitation. The Assistant Director is a public servant within the meaning of Section 21 of the Indian Penal Code by virtue of Section 40 of the Act. Thus, in view of proviso (a) of Section 200 of the Code of Criminal Procedure and as the complaint has been made in writing, the examination of the complainant and his witnesses stands dispensed with., Conclusion: To sum up, from the contents of the complaint and the material placed on record, prima facie offence under Section 174 of the Indian Penal Code, 1860 is made out and there are sufficient grounds for proceeding under Section 204 of the Code of Criminal Procedure, 1973 against accused Mr. Arvind Kejriwal. Copy of the complaint is already on record. Accordingly, issue summons to accused Mr. Arvind Kejriwal for the offence under Section 174 of the Indian Penal Code, 1860 for 17 February 2024. Announced in the open Court today on 7 February 2024. (Divya Malhotra) 07.02.2024
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From: Sir, The Registrar General The Chairman High Law Bar Council of Kerala, Ernakulam -682031. AGH COUR Sub: Constitution of Grievance Redressal Committee for redressal of grievances of Advocates headed by the Honourable Chief Justice. Reference: Orders of Honourable Supreme Court of India dated 20-04-2023 in MA-859/2020 and SLP(C)-5440/2020. The Honourable Chief Justice, Ernakulam-682031, Email: hckeralaanic.in, Phone: 0484-2393901, Fax: 0484-2391720, may inform that the Honourable Chief Justice is pleased to constitute a Grievance Redressal Committee for redressal of grievances of Advocates headed by the Honourable Chief Justice at the High Court level with the following members: Advocate General, Kerala; Honourable Justice A. Muhamed Mustaque; Honourable Justice Somarajan P; Chairman of the Bar Council of Kerala; President of the High Court Bar Association. The Committee is constituted on the basis of the Orders of Honourable Supreme Court of India dated 20-04-2023 in MA-859/2020 and SLP(C)-5440/2020 for the redressal of grievances of members of the Bar, with a view to avert instances of Advocates resorting to strike or abstaining from work. The Grievance Redressal Committee may consider genuine grievances related to difference of opinion or dissatisfaction because of procedural changes in filing or listing of matters and any genuine grievance pertaining to misbehaviour of any member of the lower judiciary, provided such grievance is genuine and not intended to exert pressure on any judicial officer. It may be noted that the Chairman, Bar Council of Kerala has been inducted as a member of the Committee as per the constitution suggested in the Orders of Honourable Supreme Court of India., Enclosure: As above. Yours faithfully, P. Krishna Kumar, Registrar General., Ishwar Shandilya and others versus Assistant, District Bar Association, Dehradun. The present application has been preferred by the Bar Council of India for appropriate direction for constitution of Grievance Redressal Committees for redressal of grievances of Advocates and Bar Associations at different levels, as submitted in affidavit dated 15 September 2021, including directions to all the High Courts to constitute the suggested Grievance Redressal Committees for the States as well as District and Taluka courts within their respective territorial jurisdictions., Shri Manan Kumar Mishra, learned Senior Advocate and Chairman of the Bar Council of India, submitted that in order to check and control frequent strikes and boycotts, the Bar Council of India has already filed an affidavit in MA No. 859/2020 arising out of SLP (C) No. 5440/2020 on 15 September 2021. The Council has suggested various measures for controlling strikes and abstention and has proposed the mechanism of redressal of grievances of Advocates and Bar Associations at all levels. He stated that the Bar Council is of the firm view that illegal and unreasonable strikes and boycotts are always detrimental and the Bar Councils can never approve or encourage such practices. In a meeting of Chairmen and Office Bearers of all the State Bar Councils, the Bar Council of India and representatives of lawyers unanimously agreed that a grievance redressal mechanism should be available to Advocates at all levels, starting from the High Courts, where members of the Bar could vent their grievances. It was observed that many times members of the Bar have very genuine grievances, and failure to resolve such grievances leads to strikes. Therefore, genuine grievances such as dissatisfaction because of procedural changes in filing or listing of matters in High Courts or District Courts, or grievances pertaining to misbehaviour of any member of the lower judiciary, or any other serious grievance against judicial officers, can be ventilated before the Grievance Redressal Committees so that members of the Bar, who are also part of the justice delivery system, feel that their grievances are heard., The Supreme Court of India reiterates that no member of the Bar can go on strike or abstain from court work. The Supreme Court of India has repeatedly emphasized and criticized advocates going on strike and abstaining from work. If a member of the Bar has any genuine grievance arising from procedural changes in filing or listing of matters or any grievance pertaining to misbehaviour of any member of the lower judiciary, they may make a representation, and it is appropriate that their genuine grievances be considered by a forum so that such strikes can be avoided. Accordingly, all High Courts are requested to constitute a Grievance Redressal Committee in their respective High Courts, headed by the Chief Justice and consisting of two other senior Judges, one each from the service and the Bar nominated by the Chief Justice, as well as the Advocate General, Chairman of the State Bar Council, and President of the High Court Bar Association. The High Court may also consider constituting a similar Grievance Redressal Committee at the District Court level. The Committee may consider genuine grievances related to difference of opinion or dissatisfaction because of procedural changes in filing or listing of matters in the respective High Courts or District Courts, and any genuine grievance pertaining to misbehaviour of any member of the lower judiciary, provided such grievance is genuine and not intended to exert pressure on any judicial officer. The present application stands disposed of in terms of the above. I.A. No. 51257/2023 shall also stand disposed of. The Registry is directed to send copies of this order to the Registrar General of all the High Courts for further steps.
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For the Petitioner: Ms. Pooja Agarwal, petitioner in person. For the Respondents: Mr. U.K. Nair, Senior Standing Counsel, Gauhati High Court. Date of Hearing & Judgment & Order: 4th April, 2022., Heard Ms. Pooja Agarwal, petitioner-in-person. Also heard Mr. U.K. Nair, learned senior standing counsel, Gauhati High Court, who appears for the respondents., By means of the present petition, the petitioner has challenged the constitutional validity of the Assam Judicial Service Rules, 2003 (hereinafter referred to as Assam Rules), more particularly Rule 7, by which a minimum age of 35 years and a maximum age of 45 years has been prescribed as an essential qualification for appointment to Higher Judicial Service in Assam., The main argument of the petitioner before the Gauhati High Court is that Article 233 of the Constitution of India prescribes the qualification for appointment of District Judges, where there is no mention of a minimum age of 35 years as a qualification for appointment as a District Judge. Consequently, the State cannot bring the age as a qualification in its Rules, as that would be against the constitutional provision. It has also been argued before us that in any case, prescribing a minimum age for Higher Judicial Service is violative of Article 14 of the Constitution of India. The judgment of the Honorable Supreme Court in Madras Bar Association v. Union of India & Anr., reported in 2021 SCC Online Supreme Court 463 is relied upon by the petitioner for this purpose., Mr. U.K. Nair, learned senior counsel representing the Gauhati High Court, submits that the question before the Gauhati High Court is no longer res integra as a decision on the said subject has recently been given by the Supreme Court of India in the case of High Court of Delhi v. Devina Sharma, reported in 2022 SCC Online Supreme Court 316 and he would thus urge that this petition be decided in the light of the decision of the Supreme Court of India in Devina Sharma., In Devina Sharma, inter alia, the validity of a similar provision in Delhi Judicial Service Rules, 1970 was under challenge before the Supreme Court of India in which the Supreme Court upheld the validity of the Rules (Delhi Rules), which prescribed a minimum age of 35 years for direct recruitment to Delhi Higher Judicial Service. It is an admitted position that the present Rules under challenge are exactly the same as were under challenge before the Supreme Court., The Supreme Court of India, while upholding the validity of the minimum age in the Delhi Rules in Devina Sharma, discussed the provisions of Article 233 as well as Article 235 of the Constitution of India. Whereas Article 233(2) of the Constitution stipulates that a person will be eligible to be appointed as a District Judge if he has been, for not less than seven years, an advocate or a pleader and is recommended by the High Court for appointment, Article 233(1) prescribes that appointment, posting and promotion of District Judges shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to that State. This provision has to be read with Article 235, which also mandates that the control over District Courts and courts subordinate thereto, including the posting, promotion, grant of leave of persons belonging to the Judicial Service of the State, vests in the High Court. Merely because the Constitution is silent on the minimum age would not mean that those entrusted with the rule‑making power cannot make such provision., The Constitution has prescribed the requirement to the effect that a person shall be eligible for appointment as a District Judge only if he has been an advocate or a pleader for at least seven years. What this means is that a person who has not fulfilled the seven‑year norm is not eligible. The Constitution does not preclude the exercise of the rule‑making power by the High Courts to regulate the conditions of service or appointment. The silences of the Constitution have to be and are supplemented by those entrusted with the duty to apply its provisions. The Constitution being silent in regard to the prescription of a minimum age, the High Courts in the exercise of their rule‑making authority are entitled to prescribe such a requirement. Direct recruitment to the Higher Judicial Service is intended to be from members of the Bar who have sufficient experience., In the same paragraph, after having read the two provisions together, i.e., Article 233 and Article 235 of the Constitution, the Supreme Court of India then gave the reasons as to why a minimum age of 35 years has been prescribed. The underlying reason is to ensure that the senior most level of post in the cadre is occupied by a person of sufficient maturity and experience. This is what has been said: The post of a District Judge is at a senior level in the cadre. Age is not extraneous to the acquisition of maturity and experience, especially in judicial institutions which handle real problems and confront challenges to liberty and justice. The High Courts are well within their domain in prescribing a requirement which ensures that candidates with sufficient maturity enter the fold of the higher judiciary. The requirement that a candidate should be at least 35 years of age is intended to sub‑serve this., The petitioner would, however, submit that in the present case she had not merely relied upon Article 233 of the Constitution of India but had also challenged the present Rules on grounds of its violation of Article 14 of the Constitution of India and, since Article 14 has not been discussed in Devina Sharma, the petition should be heard on its merit. The petitioner has relied upon another judgment of the Supreme Court, i.e., Madras Bar Association, already referred to above., Let us examine the implication of the Madras Bar Association case to the facts of the present case. In Madras Bar Association, certain provisions of the Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance, 2021 and Sections 184 and 186(2) of the Finance Act, 2017 were challenged and a declaration was sought from the Supreme Court of India that these provisions be declared as ultra vires to Articles 14, 21 and 50 of the Constitution of India. For our purpose, what is relevant is that indeed what was, inter alia, under challenge before the Supreme Court was the prescription of a minimum age of 50 years for appointment of Presiding Officer/Member of the Tribunal. It is true that the Supreme Court by a majority decision held that the prescription of a minimum age of 50 years was bad, but it was held to be bad as it was in violation of the earlier direction of the Supreme Court in the case of Union of India v. R. Gandhi, President of Madras Bar Association (MBA‑I) reported in 2010 11 SCC 1 as well as in Madras Bar Association v. Union of India, reported in 2020 SCC Online Supreme Court 962, referred to as MBA‑III. This was so as in these two cases, the Supreme Court had held that the only requirement for the Presiding Officer/Member of the Tribunal is ten years of experience as an advocate and, therefore, adding a minimum age of 50 years to the said qualification in the statute was done in order to circumvent the judgment of the Supreme Court. It was for that reason that the minimum age of 50 years in the case of Madras Bar Association was held to be bad., Moreover, provisions of the Assam Judicial Service Rules, 2003, which relate to Higher Judicial Service in Assam cannot in any case be compared with another set of Rules governing a different service condition on the basis of arbitrariness and discrimination. In Hirandra Kumar v. High Court of Judicature at Allahabad & Anr., reported in 2020 17 SCC 401, a judgment which has also been relied upon by the Supreme Court of India while deciding the case of Devina Sharma, it was held as follows: For the same reason, no case of discrimination or arbitrariness can be made out on the basis of a facial comparison of the Higher Judicial Service Rules with the Rules governing Nyayik Sewa. Both sets of rules cater to different cadres. A case of discrimination cannot be made out on the basis of a comparison of two sets of rules which govern different cadres., In Hirandra Kumar, inter alia, the prescription of age, i.e., minimum age of 35 years and maximum age of 45 years for Higher Judicial Service, was under challenge. It was held that the prescription of a minimum age or maximum age for entry into service is essentially a matter of policy and it is not arbitrary or discriminatory. Therefore, in any case the challenge to the Assam Judicial Service Rules, 2003 on grounds of violation of Article 14 is not sustainable., The ratio of the decision in Devina Sharma is that the requirement of a minimum age of 35 years for a candidate for Higher Judicial Service is a valid requirement and it is in conformity with the recommendations of the Shetty Commission. This is the law declared by the Supreme Court of India under Article 141 of the Constitution of India, which is binding on all courts. This would be irrespective of the fact whether certain provisions of the Constitution of India were not considered by the Supreme Court. Although we must say that this is also factually not correct inasmuch as while deciding the case of Devina Sharma, the Supreme Court also relied upon its earlier judgment given in Hirandra Kumar case where it was held that prescription of a minimum age of 35 years is not arbitrary or discriminatory and hence by implication it is not violative of Article 14 of the Constitution of India., Be that as it may, Article 141 of the Constitution of India states that a law declared by the Supreme Court shall be binding on all courts within the territory of India. Undoubtedly what is binding is the ratio laid down in the said case. This is irrespective of the fact whether while doing so the Supreme Court may or may not have considered all aspects of the matter., In Director of Settlements, A.P. & Ors. v. M.R. Apparao & Anr., reported in 2002 Supreme Court 381, it was held as follows: The decision in a judgment of the Supreme Court cannot be assailed on the ground that certain aspects were not considered or the relevant provisions were not brought to the notice of the Court (see AIR 1970 Supreme Court 1002 and AIR 1973 Supreme Court 794). When the Supreme Court decides a principle it would be the duty of the High Court or a subordinate court to follow the decision of the Supreme Court., More specifically in Suganthi Suresh Kumar v. Jagdeeshan, reported in 2002 2 SCC 420, it was held in paragraph 9 as follows: It is impermissible for the High Court to overrule the decision of the Supreme Court on the ground that the Supreme Court laid down the legal position without considering any other point. It is not only a matter of discipline for the High Courts in India, it is the mandate of the Constitution as provided in Article 141 that the law declared by the Supreme Court shall be binding on all courts within the territory of India. It was pointed out by this Court in Anil Kumar Neotia v. Union of India (1988) 2 SCC 587 that the High Court cannot question the correctness of the decision of the Supreme Court even though the point sought before the High Court was not considered by the Supreme Court., The challenge to the Assam Rules hence fails. The validity of the Assam Rules is upheld, in the light of the law laid down by the Supreme Court of India in Devina Sharma., The writ petition therefore has no force, and is hereby dismissed.
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Dated this the 26th day of November, 2021. This writ petition has been filed by the petitioner who is the husband of the fourth respondent. The impugned order has been passed by the third respondent, Dowry Prohibition Officer., According to the learned counsel for the petitioner, the petitioner married the fourth respondent on 06 September 2020 at Mangalathukavu Devi Temple, Ashtamudi, Kollam, as per the customs and practices prevailing among the Hindu community. After the marriage they are living together as husband and wife at the residence of the petitioner. Their relationship was strained and the fourth respondent initiated legal proceedings against the petitioner and ultimately she filed a petition before the nodal officer (Dowry cases), which is produced as Exhibit P1., According to the learned counsel for the petitioner, the fourth respondent's parents and her brother deposited all her ornaments in the bank locker, except daily use jewellery, in the name of the fourth respondent and the petitioner at Thodiyoor Service Co-operative Bank, Edakulangara Branch. Even the key is also in the possession of the fourth respondent alone., Notice was issued to the fourth respondent. He appeared through counsel. Respondents No.1 to 3 appeared through the Public Prosecutor. The Public Prosecutor produced Government Order No. G.O. (P) No.13/2021/SJD dated 13 July 2021 published as Statutory Regulatory Order No. 520/2021 in Kerala Gazette Extraordinary No.2060 dated 15 July 2021., The Kerala High Court heard both sides., According to the learned counsel for the petitioner, the fourth respondent, District Dowry Prohibition Officer, will not have jurisdiction to entertain the petition, since even as per the averments in Exhibit P1, the allegation of the fourth respondent is that the ornaments which have been given to her for her well‑being have been kept in the bank locker and have not yet been returned., Vadhiboyana Venkata Krishna Reddy v. C. Venkata Rumania Reddy and Another 2019 Kerala High Court 2305 was relied upon wherein it has been held that Section 6 of the Dowry Prohibition Act, 1961, enables the wife to file a suit for recovery of the dowry paid, if the person who received the dowry has failed to transfer the property for the benefit of the woman within the prescribed period. But the Act, read with Kerala Dowry Prohibition (Amendment) Rules 2021 (hereinafter ‘Rules’) provides jurisdiction to the fourth respondent in dealing with matters if it is proved that dowry has been received by any person other than the woman., As per Rule 2 of the amended rules, the words ‘Regional Dowry Prohibition Officer’ in the Kerala Dowry Prohibition Rules, 2004, wherever they occur, are substituted by ‘District Dowry Prohibition Officer’., It is relevant in this context to quote Section 3 of the Dowry Prohibition Act, 1961, as amended by Act 63 of 1984 (hereinafter ‘the Act’) which reads as follows: Penalty for giving or taking dowry: (1) If any person, after the commencement of this Act, gives or takes or abets the giving or taking of dowry, he shall be punishable with imprisonment for a term which shall not be less than five years, and with fine which shall not be less than fifteen thousand rupees or the amount of the value of such dowry, whichever is more. Provided that the Court may, for adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a term of less than five years. (2) Nothing in sub‑section (1) shall apply to, or in relation to, (a) presents which are given at the time of a marriage to the bride (without any demand having been made in that behalf), provided that such presents are entered in a list maintained in accordance with the rules made under this Act; (b) presents which are given at the time of a marriage to the bridegroom (without any demand having been made in that behalf), provided that such presents are entered in a list maintained in accordance with the rules made under this Act; provided further that where such presents are made by or on behalf of the bride or any person related to the bride, such presents are of a customary nature and the value thereof is not excessive having regard to the financial status of the person by whom, or on whose behalf, such presents are given., So the presents given at the time of marriage to the bride without any demand having been made in that behalf and which have been entered in a list maintained in accordance with the rules made under this Act will not come within the purview of Section 3(1) which prohibits giving or taking of dowry. The very averments in Exhibit P1 complaint are that the ornaments given to her for well‑being have been kept in the locker in the bank under the control of respondents., Rule 6 of the Dowry Prohibition Rules, 1992, prescribes the functions to be performed by the Regional Dowry Prohibition Officers. Relevant sub‑rules are: (viii) The Regional Dowry Prohibition Officer shall scrutinize the complaint and if it is found that the nature and the contents of the complaint are such that it apparently comes within the purview of Section 3 or 4 or 4A or 5 or 6 of the Act, he will immediately conduct an enquiry to collect such evidence from the parties and to ascertain the genuineness of the complaint; (ix) The Regional Dowry Prohibition Officers shall send quarterly reports to the Chief Dowry Prohibition Officer as to the number of complaints received under the Act and the action taken or the nature of settlement of the issue in Form No. II annexed to these rules. The Regional Dowry Prohibition Officer shall send such details or reports as may be required by the Chief Dowry Prohibition Officer or the Government from time to time; (xi) Every petition shall be enquired into and heard and a finding recorded within a month from the date of its receipt; (xiii) The Regional Dowry Prohibition Officers may utilize the services of District Prohibition Officers or Additional District Prohibition Officers or City Probation Officers of the area for collecting information or conducting enquiries or assisting in any stage of enquiries or proceedings relating to a complaint, petition or application under the Dowry Prohibition Act; (xiv) On receipt of requisition from the Regional Dowry Prohibition Officer the Probation Officers shall conduct necessary enquiries, collect information and furnish such detailed report promptly as requested by him; (xv) Where any dowry is received by any persons other than the woman and a complaint is received in respect of non‑transfer of such dowry to the woman who is entitled to it in accordance with Section 6 of the Act, the Regional Dowry Prohibition Officers shall issue directions to the parties to transfer the same within the stipulated time., Going through the above rules, it is clear that on receiving a complaint, the District Dowry Prohibition Officer is bound to scrutinize the complaint and find whether it would come within the purview of Sections 2, 3, 6 etc. of the Act and conduct an enquiry to collect evidence from the parties about the genuineness of the complaint and, upon such enquiry, if it is found that dowry is received by a person other than the woman, then only powers under the Act can be exercised by the District Dowry Prohibition Officer. If the complaint is received with respect to the non‑transfer of such dowry to the woman, who is entitled to it as per Section 6 of the Act, the District Dowry Prohibition Officer can issue directions to the parties to transfer the same. Here, from the records produced from the side of the petitioner as well as from the impugned order, what could be gathered is that a statement of the petitioner has been obtained. The impugned order further shows that the fourth respondent stated at the time of hearing that fifty‑five sovereigns of gold ornaments were given at the time of marriage and a chain was given to the petitioner by the parents of the fourth respondent and that has been agreed by both parties. It is further stated that out of which five chains and nine bangles have been kept in the Thodiyoor Service Co-operative Bank, Edakulangara Branch in the joint locker. Thereafter, direction was given to return the five chains, nine bangles and also the chain given to the petitioner at the time of marriage. No enquiry was conducted as to whether those articles are dowry given to the fourth respondent and no finding that the articles ordered to be released are dowry given to the fourth respondent at the time of marriage is entered into in the impugned order. What is revealed from the impugned order is only that the fourth respondent stated that fifty‑five sovereigns of gold ornaments were given at the time of marriage to her and one gold chain was given to the petitioner at the time of marriage and the petitioner admitted that during hearing. The order does not reveal that the fourth respondent stated that gold was given as dowry by her parents as agreed or that there was any such demand from the petitioner for dowry. The fourth respondent will get jurisdiction to pass direction under Rule 6(xv) of the Rules only if it is found that the ornaments directed to be returned to the fourth respondent are dowry received by the petitioner. In the absence of such finding, the Dowry Prohibition Officer will not have any jurisdiction to give direction under Rule 6(xv). Hence the impugned order passed is not sustainable in law and is hereby quashed., However, at the time of hearing, the learned counsel for the petitioner fairly conceded that his party will cooperate to take and hand over the gold ornaments, i.e., five chains, nine bangles as well as one chain gifted to the petitioner at the time of marriage, to the fourth respondent. The learned counsel for the fourth respondent also agrees to take the gold ornaments above stated from the locker in the presence of the Branch Manager of the Thodiyoor Service Co-operative Bank, Edakulangara Branch. Both parties suggested the date as 10 December 2021 at 11 a.m. The writ petition was allowed accordingly.
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Through: Mr. Yogesh Kaushik, Advocate, versus Through: Ms. Raghuinder Verma, Assistant Public Prosecutor for the State with Inspector Sanjay Sharma, Assistant Technical Officer, Crime Police and Sub-Inspector Vishal, Police Station Saket. Respondent No. 2 in person., This is a petition under Section 482 of the Criminal Procedure Code for quashing of FIR No. 521/2013, under Sections 143, 149, 341, 427 of the Indian Penal Code and Section 3 of the Delhi Prevention of Defacement of Property Act, 2007, registered at Police Station Saket, Delhi, and all proceedings emanating therefrom., On the complaint of respondent No. 2, the aforesaid FIR was registered against the petitioners., Learned counsel for the petitioners submits that petitioners and respondent No. 2 have settled all their disputes by a Memorandum of Understanding dated 24.07.2023. He further submits that petitioners were discharged for the offence under Section 3 of the Delhi Prevention of Defacement of Property Act, 2007 by order dated 09.01.2023., Respondent No. 2 is present in the Delhi High Court and she has been identified by the Investigating Officer. I have interacted with respondent No. 2 and she admits that she has settled the matter amicably with the petitioners. She further submits that the settlement/compromise has taken place voluntarily, without any force, pressure or coercion. Respondent No. 2 submits that nothing remains to be adjudicated further between them and she has no objection if the FIR in question is quashed., Learned Assistant Public Prosecutor for the State submits that in view of the settlement, the State has no objection if the FIR in question is quashed., Keeping in view the above facts and circumstances, having gone through the order on charge dated 09.01.2023 and since the matter has been amicably settled between the parties, no useful purpose will be served by keeping the case pending. It will be nothing but abuse of the process of law. Consequently, this petition is allowed and FIR No. 521/2013, under Sections 143, 149, 341, 427 of the Indian Penal Code and Section 3 of the Delhi Prevention of Defacement of Property Act, 2007, registered at Police Station Saket, Delhi, and all proceedings emanating therefrom shall stand quashed., The present petition stands disposed of accordingly.
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Dated this the 6th day of May, 2022. The intra‑Court appeals are filed by the respondents 2 to 4 in Writ Petition (Civil) 9414/2022, the Public Sector Oil Marketing Companies, aggrieved by the interim order passed in the writ petition, directing them to sell high‑speed diesel to the writ petitioner the Kerala State Road Transport Corporation at the market price available for retail outlets. The parties are referred to as per their status in the writ petition., The petitioner is a State Transport undertaking established under the Road Transport Corporation Act, 1950. The petitioner is aggrieved by the decision of the respondents 2 to 4 (hereinafter collectively referred to as Oil Marketing Companies) to increase the price of high‑speed diesel, sold in bulk to the petitioner, higher than the market price of diesel, approximately more than Rs.21 per litre, which is violative of Articles 14 and 19(i)(g) of the Constitution of India., The petitioner is the largest establishment in the State, with 26,578 employees and 41,000 pensioners. Before the pandemic, the petitioner used to transport nearly 3,500,000 passengers every day using 6,241 buses on 6,389 routes. The petitioner operates the schedules and pays the salaries and other emoluments to its employees. It is the State Government that fixes the fare tariff considering various aspects like fuel prices, tax, and revision of minimum wages to the workers. The petitioner cannot demand the Government to effect changes in the fare tariff due to its commitment to the society., The respondents 2 and 3 are Petroleum Corporations owned by the first respondent, the Union of India. The fourth respondent is a subsidiary of the Oil and Natural Gas Corporation. The fifth respondent is the Board constituted under the Petroleum and Natural Gas Regulatory Board Act, 2006., The petitioner requires 300 to 400 kilolitres of diesel per day. The petitioner has 72 consumer pumps across the State. Being a bulk consumer of petroleum products, the petitioner has entered into separate agreements with the respondents 2 to 4., Fuel prices were fixed by the first respondent, and the rules were revised from time to time by imposing restrictions on pricing. The pricing of petroleum products was brought under the Administered Pricing Mechanism (APM) effective July 1975. The APM was dismantled from 1 April 2002, starting with aviation turbine fuel, followed by petrol and diesel. As an aftermath of the dismantling of the APM, there is an unprecedented hike in the price of petroleum products as per the whims and fancies of the respondents 2 to 4., The petitioner was enjoying the price concession granted by the first respondent to all the bulk consumers of the Oil Marketing Companies. However, the benefit was withdrawn in 2013, and a non‑subsidized market‑determined price was fixed. Although the petitioner and other State Transport Corporations challenged the withdrawal of subsidy before the High Courts and the Supreme Court of India, the challenge was rejected by the Supreme Court of India in the case reported in Indian Oil Corporation Ltd v. Kerala State Road Transport Corporation [(2018) 12 SCC 518] finding that the concession granted by the Government to its beneficiaries cannot confer upon them a legally enforceable right., Initially, the price of diesel supplied to consumer pumps was less than the price supplied to retail outlets. By the end of January 2022, the price difference between the two classes of outlets got gradually reduced. By the first week of February 2022, the price of diesel supplied to consumer pumps skyrocketed to Rs.121.35 per litre from Rs.88. Due to the unforeseen price hike, as of 17 March 2022, the petitioner is paying Rs.21 per litre more than the retail consumers for diesel., The private bus operators, who are competitors of the petitioner, are operating on the same fare tariff fixed by the Government but are getting diesel at a lesser price. The supply of diesel to the petitioner alone at a higher price is violative of Article 14 of the Constitution of India. The Oil Marketing Companies have no reason to supply diesel at a higher price to the petitioner. The petitioner is facing a severe financial crunch and has a liability of Rs.10,000 crore., After the dismantling of the APM, the Oil Marketing Companies are enjoying unbridled power to fix the prices of petroleum products. The Petroleum and Natural Gas Regulatory Board Act, 2006 has provided for the establishment of the Petroleum and Natural Gas Regulatory Board to monitor the price fixation of petroleum products and protect the interest of the consumers. Even though the Board has advised notifying petroleum, petroleum products and natural gas, the first respondent has not taken any action. Hence, the first respondent is to be directed to notify that petroleum, petroleum products and natural gas fall under Section 11(f) read with Section 2(zc) of the above Act., The petitioner seeks the following reliefs: (i) issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents 1 to 4 to sell diesel to the petitioner at the market rate available for retail outlets in the state; (ii) declare that the action of the respondents 2 to 4 to sell diesel to the petitioner at a higher rate than the retail market rates is inherently discriminatory, arbitrary, unreasonable and violative of Article 14 of the Constitution of India; (iii) direct the first respondent to notify petroleum, petroleum products and natural gas under Section 2(zc) of the Petroleum and Natural Gas Regulatory Board Act, 2006 enabling the fifth respondent to function under Section 11(f) of the Act., The petitioner also seeks interim relief: for the reasons stated in the writ petition and accompanying affidavit, it is humbly submitted that the High Court of Kerala at Ernakulam may be pleased to direct the respondents 2 to 4 to levy the price of diesel at par with the existing market rate available for the retail outlets, pending disposal of the writ petition., The second respondent has filed a counter‑affidavit objecting to the maintainability of the writ petition. It contends that there is no public law element or violation of rights of any person involved in the writ petition. The High Court of Kerala at Ernakulam may not invoke its extraordinary jurisdiction under Article 226 of the Constitution of India. Exhibit P1 agreement is contractual. It is settled law that this Court shall not exercise its jurisdiction under Article 226 of the Constitution of India for resolving contractual disputes. Clause 14 of Exhibit P1 expressly provides that in case of any dispute arising between the parties, relating to the terms and conditions outlined in the agreement, the same shall be resolved by mutual negotiation, failing which the dispute shall be adjudicated through arbitration. The pricing of products, which is the subject matter of the writ petition, squarely falls within Clause 14 of Exhibit P1. The writ petition is silent on the alternative remedy provided in the agreement. The price fixation of petroleum products is a policy consideration and is not the forte of the Court. Hence, the scope of judicial review is limited. In non‑statutory price fixation matters, as in the present case, the scope of judicial scrutiny is minimal. This Court may not judicially review the price fixation made by the respondent. The petitioner’s attempt is to persuade this Court to enter the intricacies of inter‑party commercial matters and the price fixation mechanisms. In a situation of contractual price fixation, a mere difference in price may not justify the prayer to judicially review the price fixation mechanism and arrive at a different price to be fixed by this Court under Article 226 of the Constitution of India. Moreover, the petitioner has failed to produce any material to show any demand made to the respondents, to issue a writ of mandamus. Hence the writ petition may be dismissed., The learned Single Judge admitted the writ petition and passed the impugned interim order on a finding that the price levied is exorbitant and is an unconscionable term of bargain. The operative portion of the order reads as follows: In the facts and circumstances of the case, there will be an interim order directing the respondents 2 to 4 to levy the price for high‑speed diesel from the petitioner at par with the existing market rate available for the retail outlets. This interim order is provisional and will be subject to the outcome of the writ petition., It is challenging the above finding and direction that the respondents 2 to 4 have independently preferred the three writ appeals., Heard: Sri Parag P. Tripathi, the learned Senior Counsel appearing for appellants/respondents 2 to 4, assisted by Sri Paulose C. Abraham and Sri Dushyant Dave, the learned Senior Counsel appearing for the first respondent/writ petitioner, assisted by Sri Deepu Thankan., Sri Parag P. Tripathi argued that the learned Single Judge erred in passing the impugned order, which is against the well‑settled principles of law laid down by the Honourable Supreme Court of India. He contended that the learned Single Judge ought to have adverted to the objection raised by the second respondent in the counter affidavit regarding the maintainability of the writ petition, in view of Clause 14 of Exhibit P1. The agreement mandates the parties to resort to the Alternative Dispute Resolution mechanism. Unfortunately, the same was overlooked by the learned Single Judge without assigning any reason. He placed reliance on the decisions of the Supreme Court of India in Gail (India) Ltd v. Gujarat State Petroleum Corporation Ltd [(2014) 1 SCC 329] and Kerala State Electricity Board and Anr v. Kurien E. Kalathil [(2000) 6 SCC 293] to support his submission. He contended that the learned Single Judge has failed to consider the implication of the inter‑party judgment in Indian Oil Corporation Ltd v. Kerala State Road Transport Corporation (supra), on substantially the same issue, which operates as res judicata against the petitioner. He further contended that, as the petitioner has entered independent contracts with the respondents 2 to 4 for the bulk purchase of petroleum products, the petitioner cannot compare itself to a retail customer. Only equals have to be treated equally. Therefore, there is no violation of Article 14 of the Constitution of India, as alleged in the writ petition. He relied on the decisions of the Supreme Court of India in K.T. Moopil Nair v. State of Kerala [AIR 1961 SC 552], Indira Sawhney v. Union of India [(1992) Supp (3) SCC 217] to fortify his contention. He also submitted that the petitioner is being offered interest‑free credit facilities for the first 15 days of supply, and petroleum products are being supplied at the doorsteps of the petitioner’s consumer pumps with all facilities and technical services. Approximately Rs.140 crore is outstanding from the petitioner to the respondents 2 to 4 towards arrears of petroleum charges. Without considering the above factual and legal aspects and the principles of balance of convenience, the learned Single Judge has passed the impugned order. Now, since the petitioner is not taking supplies from the respondents 2 to 4, no hardship is being caused to them. Hence the writ appeals may be allowed., Sri Dushyant Dave countered the above submissions and argued that the writ appeals are devoid of merit. He contended that the learned Single Judge passed the interim order in exercise of his discretionary powers under Article 226 of the Constitution of India, particularly on consideration of the peculiar facts and circumstances of the case. He drew the attention of the High Court of Kerala at Ernakulam to paragraphs 9 and 10 of the judgment in Indian Oil Corporation Ltd v. Kerala State Road Transport Corporation (supra) and argued that, at that point in time, the Government of India had given specific reasons for taking a policy decision in deregulating the prices of diesel, that too in a phased manner. Whereas now the respondents 2 to 4 are not giving any reason for fortnightly increasing the price of diesel being supplied to bulk purchasers. According to him, as per Clause 5 of Exhibit P1, the respondents 2 to 4 are contractually bound to supply petroleum products to the petitioner at the most competitive price available in the market. Instead, the respondents 2 to 4 are indiscriminately increasing the price day by day, which has now skyrocketed to Rs.121.35 per litre, i.e., Rs.21 above the current retail price. If the respondents 2 to 4 are given such leeway, the petitioner, who is reeling in debt, would have to stop their operations completely. He contended that as the petitioner requires approximately 300‑400 kilolitres of diesel per day, with the arbitrary escalation of the price of diesel, the petitioner is put to severe hardship and financial loss. He relied on the decision of the Supreme Court of India in Wander Ltd and Ors v. Antox India Private Ltd [(1990) Supp SCC 727] to canvass the position that the Appellate Court should not interfere with the discretionary orders passed by the Single Judge. He also placed emphasis on the decision in Unitech Ltd v. Telangana State Industrial Infrastructure Corporation (TSIIC) [2021 SCC Online SC 99] to drive home the point that merely because the parties had agreed to resort to arbitration, it does not oust the jurisdiction of this Court to exercise its discretion as enshrined under Article 226 of the Constitution of India. He further submitted that although the respondents 2 to 4 were directed to file a statement explaining the pricing mechanism, the same was not done. Hence the learned Single Judge exercised his discretion and passed the interim order. The appellants have not made out a case warranting interference by this Court to exercise its powers under Section 5 of the Kerala High Court Act. Hence the writ appeals may be dismissed., In the light of the rival contentions, the points that arise for consideration in these appeals are: (i) whether the learned Single Judge erred in proceeding with the writ petition without considering the objection raised by the second respondent and not stating any reason in not relegating the petitioner to the Alternative Dispute Resolution mechanism provided in the contract; and (ii) whether the direction in the impugned order that the respondents 2 to 4 have to supply diesel to the petitioner at par with the current market price available to retail outlets is sustainable in law?, The petitioner and the Oil Marketing Companies have entered into separate agreements for the supply of diesel, lubricants, greases, and other petroleum products at the petitioner’s various depots/consumer pumps. It is admitted that Exhibit P1 was subsequently renewed twice, i.e., on 25 June 2019 and 6 March 2020, and the contract is valid till 14 March 2023. Similarly, Exhibit P2 agreement entered between the petitioner and the third respondent is valid till 31 May 2022., Clause 14 of Exhibits P1 and P2 reads thus: In the event of any dispute arising between the two parties relating to the various terms and conditions set forth in the contract, the two parties undertake to resolve the difference by mutual negotiation. If such dispute or difference could not be resolved within one month from the date having arisen, the same shall be referred to a Sole Arbitrator to be appointed by the Managing Director of Buyer and by Director (Marketing) of Seller by mutual consent. If however, the parties failed to agree upon a sole arbitrator with mutual consent, the Seller and Buyer will each nominate an arbitrator of their choice, and the two arbitrators so nominated shall choose a third arbitrator. The award published by arbitrator(s) so appointed shall be final and conclusive and binding on both the parties to the Agreement. The award shall contain the reasons. The provisions of the Indian Arbitration and Conciliation Act, 1996 or any statutory modification or re‑enactment thereof and the rules made thereunder for the time being in force shall apply to the arbitration proceedings under this clause. The venue of arbitration shall be Ernakulam., It is alleged that the Oil Marketing Companies acted arbitrarily, unfairly, and irrationally in increasing the price of diesel sold to the petitioner above the retail price, and the petitioner has approached the High Court of Kerala at Ernakulam, inter alia, to direct the Oil Marketing Companies to sell diesel to the petitioner at the current rate being sold to the retail customers., The second respondent has, in its counter affidavit, objected to the maintainability of the writ petition in view of the inbuilt Alternative Dispute Resolution mechanism agreed in Exhibit P1., The Supreme Court of India in Whirlpool Corporation v. Registrar of Trade Marks [(1998) 8 SCC 1] has expressed as follows: The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution. This power can be exercised by the High Court not only for issuing writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of any of the Fundamental Rights contained in Part III of the Constitution but also for any other purpose., Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions, one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. However, the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged., The Supreme Court of India has reiterated the above legal position in a host of subsequent judicial pronouncements, namely Harbansal Sahinia and Another v. Indian Oil Corporation Ltd. and others [(2003) 2 SCC 107], Rajasthan State Electricity Board v. Union of India and others [(2008) 5 SCC 632], Pimpri Chinchwad Municipal Corporation v. Gayatri Construction Co. [(2008) 8 SCC 172], Balkrishna Ram v. Union of India [(2020) 2 SCC 442], Unitech Ltd v. Telangana State Industrial Infrastructure Corporation (TSIIC) [2021 SCC Online SC 99]., Recently, the Supreme Court of India in Radha Krishnan Industries v. State of Himachal Pradesh and others [(2021) 6 SCC 771] has carved out the exceptions to the rule of alternative remedy to invoke the jurisdiction of the High Court under Article 226 of the Constitution of India, which are enumerated hereunder:, The principles of law which emerge are that: (1) The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well. (2) The High Court has the discretion not to entertain a writ petition where an effective alternate remedy is available to the aggrieved person. (3) Exceptions to the rule of alternate remedy arise where: (a) the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution; (b) there has been a violation of the principles of natural justice; (c) the order or proceedings are wholly without jurisdiction; or (d) the vires of a legislation is challenged. (4) An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily a writ petition should not be entertained when an efficacious alternate remedy is provided by law. (5) When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion. (6) In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with., These principles have been consistently upheld by this Court in Chand Ratan v. Durga Prasad [(2003) 5 SCC 399], Babubhai Muljibhai Patel v. Nandlal Khodidas Barot [(1974) 2 SCC 706] and Rajasthan State Electricity Board v. Union of India [(2008) 5 SCC 632] among other decisions., The above‑cited precedents demonstrate that the discretionary power of this Court to entertain a writ petition filed under Article 226 of the Constitution of India, instead of relegating the parties to an alternative remedy, is separated by a narrow line. Currently, in the post‑amendment era of the Arbitration and Conciliation Act, 1996 (post Act 3 of 2016 and Act 33 of 2019) and the emergence of the doctrine of kompetenz‑kompetenz, and the exposition of the law in Vidya Drolia and others v. Durga Trading Corporation [(2021) 2 SCC 1] the line has got narrower., In addition, the Constitutional Bench of the Supreme Court of India in S.B.P. and Company vs Patel Engineering Ltd [(2005) 8 SCC 681] has held thus: We may at this stage notice the complementary nature of Sections 8 and 11. Where there is an arbitration agreement between the parties and one of the parties, ignoring it, files an action before a judicial authority and the other party raises the objection that there is an arbitration clause, the judicial authority has to consider that objection and if the objection is found sustainable to refer the parties to arbitration. The expression used in this section is 'shall' and this Court in P. Anand Gajapathi Raju v. P.V.G. Raju [(2000) 4 SCC 539] and in Hindustan Petroleum Corporation Ltd. v. Pinkcity Midway Petroleums [(2003) 6 SCC 503] has held that the judicial authority is bound to refer the matter to arbitration once the existence of a valid arbitration clause is established. Thus, the judicial authority is entitled to, has to and is bound to decide the jurisdictional issue raised before it, before making or declining to make a reference. Section 11 only covers another situation. Where one of the parties has refused to act in terms of the arbitration agreement, the other party moves the Chief Justice under Section 11 of the Act to have an arbitrator appointed and the first party objects, it would be incongruous to hold that the Chief Justice cannot decide the question of his own jurisdiction to appoint an arbitrator when in a parallel situation, the judicial authority can do so. Obviously, the highest judicial authority has to decide that question and his competence to decide cannot be questioned. If it is held that the Chief Justice has no right or duty to decide the question or cannot decide the question, it will lead to an anomalous situation in that a judicial authority under Section 8 can decide, but not a Chief Justice under Section 11, though the nature of the objection is the same and the consequence of accepting the objection in one case and rejecting it in the other, is also the same, namely, sending the parties to arbitration. The interpretation of Section 11 that we have adopted would not give room for such an anomaly., Thus, the law has crystalised that when a party invokes the plenary power of the High Court to issue a prerogative writ under Article 226 of the Constitution of India, notwithstanding the arbitration clause contained in an inter‑party contract, and the opposite party objects to the maintainability of the writ petition, the High Court is bound to consider the objection and be satisfied that it is a fit case to exercise its discretion instead of relegating the parties to the alternative remedy., In the case at hand, the learned Single Judge erred in not adverting to the objection raised by the second respondent and in not stating the reason for not relegating the parties to the alternative remedy, dehors the arbitration clause. Hence, we answer point (i) in favour of the appellants., Even though we have held that the impugned order is erroneous in the light of our findings on point (i), we proceed to decide on point (ii) due to the questions of law that were argued., The dispute in the writ petition is regarding the prohibitive price of diesel sold to the bulk consumers/consumer pumps compared to the price of retail customers/retail outlets., Exhibit P3 proves that till 31 January 2022, the price of diesel sold to bulk consumers was lower than the price of retail customers. As per Exhibit P‑11, the price of diesel sold to bulk consumers was fortnightly increased from Rs.82.75 per litre as of 31 December 2021 to Rs.121.35 per litre as of 30 March 2022, i.e., an increase by Rs.22.03 per litre., Clause 5 of Exhibit P1 deals with fixation of price, which reads as follows: The price of the petroleum products shall be ex‑Seller supply points as determined by the Seller’s policy and shall be charged as applicable on the date of supply. The Seller shall ensure that product supply is executed at the most competitive price applicable in the market. The Buyer will bear all the applicable taxes/duties or any other charges as imposed by the Government/Local Bodies on supply of products from time to time., Clause 5 gives absolute freedom to the Oil Marketing Companies to fix the price of petroleum products as per their policy and as on the date of supply., As can be gathered from the decision of the Supreme Court of India in Indian Oil Corporation Ltd. v. Kerala State Road Transport Corporation [(2018) 12 SCC 518], that is the earlier round of litigation between the parties, the petitioner had sought the following reliefs which are extracted in paragraph 2 of the said decision: (i) Issue an appropriate writ, order or direction declaring that the diesel price hike introduced as per Exhibit P‑1 to Kerala State Road Transport Corporation, compelling the petitioner to pay enhanced rate than while purchasing diesel from private or other diesel bunk, is wholly arbitrary, illegal, unjust, unconstitutional and violative of Articles 12 and 14 of the Constitution of India; (ii) Issue any appropriate order commanding the first respondent to withdraw the dual pricing policy of diesel introduced as per Exhibit P‑1 or in the alternative accord exemption to the petitioner, from the category of bulk consumer, and treat the petitioner as a retail customer for the purpose of diesel purchasing; (iii) Issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents to refund the excess diesel charge collection in pursuance of clause (b) of Exhibit P‑1, with interest at the treasury rate, with effect from 17 January 2013 to the petitioner, forthwith., On juxtaposition of the reliefs sought in the earlier round of litigation and the one at hand reveals that reliefs are identical., A learned Single Judge of this Court had by order dated 21 March 2013 in Writ Petition (Civil) No.7517/2013 restrained the respondents 2 and 3 from realising a higher price for diesel sold to the petitioner than the retail customers.
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The Honorable Supreme Court of India, by order dated 16.09.2013 in Special Leave Petition (Civil) No.19996/2013 filed by the respondents 2 and 3, stayed the operation of the impugned order after observing as under: In our opinion, having regard to the overall facts and circumstances of the case, particularly that 83% of diesel is imported and the current value of the rupee against the dollar has substantially gone down, we are satisfied that not only the Oil Company has balance of convenience in its favour but we are also of the view that irretrievable injustice shall be caused to the Oil Company if the interim injunction granted by the High Court is allowed to operate., Later, the Honorable Supreme Court of India, by its common order dated 07.11.2017 in Indian Oil Corporation Ltd. v. Kerala State Road Transport Corporation (supra), allowed the Civil Appeal filed by the respondents 2 and 3 and dismissed the writ petition. It is apposite to extract paragraphs 15 and 19 of the said judgment., Firstly, coming to the issue of the policy framed by the Government of India; the grant of subsidy is a matter of privilege, to be extended by the Government. It cannot be claimed as of right. No writ lies for extending or continuing the benefit of privilege in the form of concession. Subsidy is the matter of fiscal policy. Such privilege can be withdrawn at any time is the settled proposition of law. Thus, it was open to the Government of India to take a decision to withdraw the subsidy enjoyed by the bulk consumers; and, it was a decision based upon the aforesaid rationale to direct funds for social welfare scheme for the common man and that by grant of subsidy, Oil Marketing Companies had suffered heavy losses, and had borrowed excessive money to the extent indicated in the aforesaid paragraphs. Thus, it was decided by the Government of India, not to extend subsidy to bulk consumers; same could not be said to be an arbitrary decision, discriminatory or in violation of the principles contained in Article 14 of the Constitution of India., Thus, we find no merit in the submissions raised that subsidy should have been continued as an exception for the State Road Transport Corporations, though they may have been rendering public service. However, for the purpose of such public services the corporation cannot claim as of right that the Government of India or the State Government should continue or grant the subsidy. It cannot be claimed as a matter of right; no such right exists to claim the subsidy. The Supreme Court of India cannot interfere in such matters., The common order in Indian Oil Corporation Ltd. v. Kerala State Road Transport Corporation (supra) indicates that the Government of India had dismantled the Administered Pricing Mechanism and deregulated the price of diesel in a phased manner. Afterwards, the Oil Marketing Companies were given the complete autonomy to fix the price as per their respective policies., Notwithstanding the above common order, the petitioner continued to purchase petroleum products from the Oil Marketing Companies as a bulk purchaser at the prices fixed by the Oil Marketing Companies. The petitioner has on its free will and volition renewed Exhibit P-1 with the second respondent, not once but twice, on the same terms and conditions. Thus, it is beyond any semblance of doubt that the petitioner is fully conscious that the fixation of the price for petroleum products is exclusively within the domain of the Oil Marketing Companies, and the petitioner has no say in the matter. Moreover, after the passing of the common order in 2017, the petitioner has not complained about the price fixation, instead has enjoyed the benefits under the contract, especially the credit facility. It is only now that the petitioner cries foul when the price of diesel sold to bulk consumers has risen above the price of retail customers. The petitioner is estopped from approbating and reprobating on the contract terms., We accept the submission of Sri. Parag P. Tripathi that the petitioner cannot be treated at par with retail customers because the latter would have to go to a retail outlet and pay for the product then and there. On the contrary, petroleum products are supplied to the petitioner at their doorsteps, with credit facilities and other benefits as envisaged in the contract. Therefore, the petitioner, a bulk purchaser, falls within a separate class and cannot be treated at par with retail customers. Consequentially, following the principles laid down in K.T. Moopil Nair v. State of Kerala and Indira Sawhney v. Union of India (supra) and a whole line of decisions, we hold there is no infringement of the petitioner’s fundamental right as alleged in the writ petition., The Supreme Court of India in Union of India and another v. Cyanamide India Ltd. and others [(1987) 2 Supreme Court Cases 720] has held that price fixation is neither the function nor the forte of the court., The above view has been reiterated in Union of India and others v. Cipla Limited and another [(2017) 5 Supreme Court Cases 262]. Paragraph 96 of the judgment is relevant for the determination of the case at hand, which reads as follows: Fixing the price of any commodity is not only difficult but also tricky. There is material to be considered, a bundle of factors to be considered and appropriate weight is to be given to the material and the factors. This is not easy to decide and there will always be some criticism with regard to either the material utilised or the factors considered or the weight attached to the materials and factors. In matters pertaining to drug formulations, it is not only an issue of demand and supply but also the ability of a common person to afford the formulation. At the same time, the manufacturer must also make some profit and be in a position to invest in research and development. There simply cannot be any mathematical precision in fixing the price of a commodity. More than enough elbow room or a play in the joints is required to be given in such matters and even then the price fixing authority may commit an error. Once this is appreciated, it will be realised that the task before the Central Government in prescribing the norms was not easy., In the light of the categoric declaration of law in the afore‑cited decisions and the inter‑party common order in Indian Oil Corporation Ltd. v. Kerala State Road Transport Corporation (supra), we have no doubt in our mind that it is not the function or forte of the Supreme Court of India to decide the optimal or competitive price at which diesel should be sold to the petitioner., The Supreme Court of India finds that the petitioner has not represented their alleged grievance to the Oil Marketing Companies; instead has rushed to the Supreme Court of India. Therefore, no inaction can be alleged against the respondents 2 to 4, warranting the issuance of a writ of mandamus. Furthermore, the final relief sought in the writ petition has been granted as an interim measure, which again is impermissible in view of the law laid down by the Supreme Court of India in the State of Uttar Pradesh and others v. Ram Sukhi Devi [(2005) 9 Supreme Court Cases 733]., The Supreme Court of India finds that the present writ petition is nothing but the old case with a new docket. Hence the observations of the Supreme Court of India in its order dated 16.09.2013 in Special Leave Petition (Civil) No.19996/2013 squarely apply to the case at hand. The petitioner has not made out a prima facie case, and the balance of convenience is in favour of the Oil Marketing Companies. In the above legal and factual background, we hold that the impugned order directing the respondents 2 to 4 to sell diesel to the petitioner at par with the market price available to retail customers is unsustainable in law. Accordingly, we find point no. (ii) also in favour of the appellants. In the light of the findings of this Court on points (i) and (ii), we exercise the powers of the Supreme Court of India under Section 5 of the Kerala High Court Act, 1958, and allow the appeals. In the result, the writ appeals are allowed, and the impugned order dated 13.04.2022 in Writ Petition (Civil) No.9414/2022 is set aside. The parties shall bear their respective costs.
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Date of Decision: 27 September 2022. Through: Mr Pravin Anand, Ms Vaishali Mittal and Mr Shivang Sharma, Advocates for the Plaintiffs. Through: Defendants No 1 and 2 ex parte vide order dated 19 September 2022; Defendants No 3 and 4 ex part vide order dated 15 July 2019; Suit decreed against Defendants No 5 and 6 vide order dated 06 February 2019. I.A. 15936/2022 (under Order XIII-A of the Code of Civil Procedure rules 3 and 6(1)(a) read with Order VIII Rule 10 read with Section 151 of the Code of Civil Procedure, by Plaintiffs)., The present application has been filed under Order XIII-A of the Code of Civil Procedure, as amended by the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015. This suit is filed for permanent injunction restraining infringement and dilution of trademark, trade name, passing off, infringement of copyright, unfair competition, delivery‑up, rendition of accounts, damages and costs etc., It is respectfully prayed that the Delhi High Court may be pleased to grant the following reliefs in favour of the Plaintiffs and against the Defendants: (i) a decree of permanent injunction restraining the Defendants, their partners or proprietors, principal officers, servants, agents and distributors and all others acting on their behalf from manufacturing, selling, offering for sale, advertising, directly or indirectly dealing in any manner with products including but not limited to tobacco products, pan masala products, confectionery and any other goods or services using the mark; Plaintiffs including trade dress and any other mark deceptively similar thereto, leading to: a) infringement of Plaintiffs' trademarks RAJNI, overall colour scheme and unique trade dress in relation to their products; b) passing off of the Defendants' products (including but not limited to pan masala products, supari, chillum etc.) as emanating from the Plaintiffs; c) infringement of copyright vested in the original artistic works in the Plaintiffs' label, packaging, overall get‑up etc.; d) dilution of Plaintiffs' well‑known trademark, overall colour scheme and unique trade dress; e) unfair competition vis‑à‑vis Plaintiffs' well‑known RAJNI overall colour scheme and unique trade dress; (ii) an order for the delivery‑up of all impugned materials of the Defendants, including the Defendants' products, their packaging, container boxes, labels, wrappers, stickers and stationery or any other material of the Defendants containing the mark RAJNIPAAN trade (colour) marks including trade dress and the colour combination of the Plaintiff; (iv) an order for rendition of accounts of profits illegally earned by the Defendants on account of use of the trademark RAJNIPAAN, and a decree for the amount so found to be passed in favour of the Plaintiff; (v) an order for damages in the present proceedings; (vi) an order for costs in the present proceeding., When the suit was filed the Plaintiffs had arrayed six Defendants and vide order dated 29 November 2018 the Delhi High Court granted an ex parte ad interim injunction in favour of the Plaintiffs and against the Defendants. Consequently, till further orders, the Defendants, their partners, proprietors, directors, principals, agents, servants, masters, affiliates, associates, distributors, licensees and all others acting on their behalf directly or indirectly are restrained from manufacturing, selling, offering for sale, advertising or dealing in any manner with products and services including but not limited to pan masala products, confectionery and any other goods or services using marks/trade dress RAJNI PAAN, including trade dress, copyright vested in RAJNIGANDHA label or any other mark deceptively similar to the Plaintiffs., On receiving summons, Defendant No 5, Mr Lucky Gupta, proprietor of Defendant No 6, Hookah Zone, made a statement before the Delhi High Court on 06 February 2019 that Defendants No 5 and 6 did not wish to contest the proceedings and, upon recording the undertaking of counsel for Defendants No 5 and 6, a decree in favour of the Plaintiffs and against Defendants No 5 and 6 was passed by the Delhi High Court. Learned counsel for Defendant Nos 5 and 6 stated that the said defendants have neither infringed the Plaintiffs' trademark nor copyright and are willing to suffer a decree in terms of prayer clause 48(i)(a), (b) and (c) of the plaint. In view of the aforesaid statement, learned counsel for the Plaintiffs does not wish to press the present suit for any other or further relief against Defendant Nos 5 and 6. Consequently, the statement/undertaking given by counsel for Defendant Nos 5 and 6 is accepted by the Delhi High Court and the said defendants are held bound by the same., Order sheets indicate that there was no appearance on behalf of Defendants No 3 and 4 despite service through several modes, including dasti. Vide order dated 15 July 2019 Defendants No 3 and 4 were proceeded ex parte and the interim injunction was confirmed against them., Thereafter, as service on Defendant No 1, Mr Youssef Anis Mehio, Chairman and General Manager of Defendant No 2, Mya International / Mya Flavours could not be effected by ordinary modes except email, the Plaintiffs filed an application for substituted service, which was allowed on 21 January 2021. Despite publication, none appeared for Defendants No 1 and 2 and they were proceeded ex parte vide order dated 19 September 2022., The Plaintiffs are part of the Dharampal Satyapal Group (DS Group), a multi‑diversified conglomerate founded in 1929 with a strong presence in high growth sectors such as Food and Beverages, Confectionery, Hospitality, Mouth Fresheners, Pan Masala, Tobacco, Agro Forestry, Rubber Thread and Infrastructure., The Plaintiffs' predecessors adopted the trademark RAJNI in 1980 in respect of pan masalas, supari etc. Subsequently, the Plaintiffs extended their range of products and adopted the trademark RAJNIGANDHA in 1983 in respect of flavoured pan masalas. The trademarks are registered as follows: Application No. 1758488 – Rajnigandha; Application No. 1758487 – Rajnigandha; Application No. 1758486 – Rajnigandha., The RAJNIGANDHA product, the Plaintiffs' flagship product and the world’s largest selling premium flavoured pan masala, is sold in unique packaging having a distinct layout, get‑up and colour scheme. Consumers worldwide associate the trademark RAJNIGANDHA exclusively with the Plaintiffs. The distinctive characteristics of the trade dress are: (1) dark royal blue colour as the base for the packaging; (2) a world map across the face and back of the pouch; (3) the word Rajnigandha written in red in an artistic device with a ghost outline; (4) ‘Flavoured Pan Masala’ written in white in an oblong device; (5) the tagline at the bottom of the front face ‘Superb in Freshness and Taste’; (6) a small device with ‘RG’ written at the bottom of the pouch; (7) a silver box at the back of the packaging with the relevant packaging details., This Delhi High Court, vide judgment dated 13 February 2014 in the suit titled Dharampal Satyapal Limited versus Suneel Kumar Rajput & Anr. (CS(OS) 381/2012), declared the mark Rajnigandha as a well‑known trademark under Section 2(1)(zb) read with Section 2(1)(zg) of the Trade Marks Act, 1999., The Plaintiffs are owners of copyright in the unique artistic work under Section 2(c) of the Copyright Act, 1957 and are entitled to exclusive rights under Section 14 of that Act. For the financial year 2017‑2018, total sales revenue for the product under the trademark RAJNIGANDHA amounted to INR 2,757,72,35,867.68 and advertising expenditure of INR 32,62,65,949.00 was incurred for promotion of the mark through newspapers, magazines, internet, hoardings and television commercials., The Plaintiffs gained knowledge of the infringing activities of the Defendants in the third week of September 2018 when, during market surveillance in and around New Delhi, they came across the impugned product RAJNIPAAN being sold in a nearly identical trade dress, revealing wide availability of the impugned product across Delhi as well as on third‑party online marketplaces such as Amazon, Flipkart and inn.com., The Delhi High Court has heard learned counsel for the Plaintiffs and examined the contentions raised., The Plaintiffs are registered proprietors of the trademark RAJNIGANDHA and have filed the Certificate of Registration which is valid and subsisting. No evidence to the contrary has been produced by the Defendants who have chosen to abstain from the proceedings. By virtue of Section 28 of the Trade Marks Act, 1999, the Plaintiffs have the exclusive right to use the trademark in relation to the goods for which it is registered and to obtain relief in respect of infringement., Having analysed the competing marks and the impugned label/packaging, this Delhi High Court is of the opinion that there is deceptive similarity between them. The packaging of the impugned product has been designed in an identical colour scheme, font and labels to give an overall look and feel of the Plaintiffs' products under the RAJNIGANDHA marks, which, as rightly contended by the Plaintiffs, has been done intentionally to trade off the significant goodwill and reputation of the Plaintiffs in their RAJNIGANDHA marks. It is obvious that there is a dishonest adoption by the Defendants and the Plaintiffs have made out a case of infringement and passing off., The trademark RAJNIGANDHA has been declared as a well‑known mark by this Delhi High Court and is entitled to a high degree of protection. The impugned mark is visually and structurally deceptively similar to the Plaintiffs' trademark., The imitation, adoption and use of the nearly identical trademark, trade name, logo and colour scheme by the Defendants is with the intent to cause confusion and create an impression amongst consumers that the Defendants have a direct nexus or affiliation with the Plaintiffs, or have been granted a licence by the Plaintiffs, or are doing business endorsed by the Plaintiffs. It is a settled proposition of law that if the Court finds imitation, no further evidence is required to establish that Plaintiffs' rights are violated, as held by the Supreme Court in Kaviraj Pandit Durga Dutt Sharma versus Navratana Pharmaceutical Laboratories [(1965) 1 Supreme Court Reports 737]., The Delhi High Court finds that the Defendants mischievously and deliberately adopted a deceptively similar mark, replacing ‘GANDHA’ with ‘PAAN’ with the intent to ride upon the goodwill and reputation established by the Plaintiffs. The principle of initial interest confusion is attracted, which is based on the assumption that infringement can be based upon confusion that creates initial consumer interest even though no actual sale is finally created as a result of the confusion. Most courts now recognise the initial interest confusion theory as a form of likelihood of confusion which can trigger a finding of infringement (see McCarthy Vol 4, 23:6)., Given that the trademark RAJNIGANDHA is a well‑known mark as defined under Section 2(1)(zg) of the Trade Marks Act, 1999 and entitled to a high degree of protection, even in cases of dissimilar goods the owner of the mark is required to be shielded. In the present case the impugned goods of the Defendants are chillum flavours, registered in Class 34, and the product of the Plaintiffs is pan masala, also registered in Class 34. The goods are allied and cognate and the triple identity test is satisfied as the trademark is nearly identical, the goods are allied and cognate and the trade channels are identical with the same consumer base. In this context, the Delhi High Court relies on the judgment in Tata Sons Ltd. versus Manoj Dodia & Ors., 2011 SCC OnLine Del 1520, where the Court held that use of a well‑known mark by a defendant on products not originating from the mark’s owner constitutes infringement within the meaning of Section 29(4) of the Trade Marks Act, 1999., Having examined the averments made in the plaint along with the documents filed and the contentions of the Plaintiffs, and noting that Defendants No 1 to 4 are ex parte and a decree has been passed against Defendants No 5 and 6, it appears that Defendants No 1 to 4 have no real prospect of defending the claim, having chosen to stay away from the proceedings despite service. In these circumstances, the Plaintiffs are entitled to a decree under Order XII-A of the Code of Civil Procedure, as amended by the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015, which empowers this Delhi High Court to pass a summary judgment without recording evidence if it appears that Defendants have no real prospect of defending the claims., The Plaintiffs have sought damages; however, this Delhi High Court finds that no evidence has been led to substantiate the claim. No stocks have been recovered or seized from the premises by the Local Commissioner appointed by the Court at the time of grant of the interim injunction. On account of lack of evidence with respect to the quantum of damages, this Court is constrained to decline the said relief in light of the judgment of the Division Bench of this Court in Hindustan Unilever Limited versus Reckitt Benckiser India, 207 (2014) Delhi Law Times 713 (DB). In this context, reference is made to the judgment in Super Cassettes Industries Private Limited versus HRCN Cable Network (CS(COMM) 48/2015), which held that the Court is not satisfied on the evidence led that the compensation awarded is adequate in the circumstances having regard to the categories in Rookes v Barnard [1964] 1 All England Reports 367 and the principles in Cassell & Co Ltd v Broome, 1972 AC 1027. Therefore, punitive damages would be an ad‑hoc judge‑centric award, which the Division Bench specifically prohibited in Hindustan Unilever Limited., However, in view of the fact that Defendants Nos 1, 2, 3 and 4 are guilty of infringement by dishonestly adopting a nearly identical trademark and identical packaging, trade dress etc., and have deliberately stayed away from the proceedings despite service, this Delhi High Court is of the view that the Plaintiffs are entitled to notional damages in terms of the judgment in Indian Performing Right Society versus Debashis Patnaik (2007) 34 PTC 201. The Plaintiffs are also entitled to costs in view of the judgment of the Supreme Court in Uflex Ltd. versus Government of Tamil Nadu, Civil Appeal Nos 4862‑4863/2021, decided on 17 September 2021, as well as under the Commercial Courts Act, 2015 and Delhi High Court (Original Side) Rules, 2018 read with Delhi High Court Intellectual Property Division Rules, 2022., In the light of the aforesaid facts and circumstances, the suit is decreed in favour of the Plaintiffs and against Defendants No 1 to 4 in terms of paragraph 48(i)(a) and (c) of the prayer clause of the plaint. A decree of damages is passed for a sum of Rs 3,00,000. Further, the Plaintiffs will be entitled to actual costs, which will include Court fee, recoverable jointly from Defendants No 1 to 4. The Plaintiffs shall file their bill of costs in terms of Rule 5 of Chapter XXIII of the Delhi High Court (Original Side) Rules, 2018 on or before 30 October 2022. As and when the same is filed, the matter will be listed before the Taxing Officer for computation of costs., The decree sheet shall be drawn up accordingly against Defendants No 1 to 4. The suit is disposed of in the above terms. The present application stands disposed of accordingly. The date of 18 January 2023 stands cancelled.
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id_971
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In Chamber Applicant: State of Uttar Pradesh through Additional Chief Secretary, Department of Home, Civil Section, Lucknow. Opposite Party: Mohd. Rizwan alias Raziwan. Counsel for Applicant: Government Advocate. Counsel for Opposite Party: Parmanand Gupta. Honorable Dinesh Kumar Singh, Judge., The matter was taken up through video conferencing from Allahabad., Heard Sri Ashwani Kumar Singh, learned Additional Government Advocate for the State applicant, as well as Sri Manoj Kumar, holding brief for Sri Parmanand Gupta, learned counsel for the accused respondent, and perused the record., The present application under Section 439(2) of the Criminal Procedure Code has been filed seeking cancellation of the order dated 22 March 2022 granting bail to the accused applicant, passed in Criminal Miscellaneous Bail Application No. 2830 of 2022 in Case Crime No. 501 of 2020, under Sections 379, 411, 412, 413, 414, 419, 420, 467, 468, 471, 484 and 120‑B of the Indian Penal Code, Police Station Gomti Nagar, District Lucknow., Sri Parmanand Gupta, learned counsel for the accused respondent, deliberately styled Criminal Miscellaneous Bail Application No. 2830 of 2022 as the first bail application, and therefore it was listed before the Allahabad High Court which was dealing with the subject matter. Had the correct facts been mentioned that it was the second bail application, since the first bail application had been rejected by this Court by order dated 19 February 2021 in Criminal Miscellaneous Bail Application No. 10872 of 2022, the Criminal Miscellaneous Bail Application No. 2830 of 2022, in which the accused applicant was granted bail, would have been listed before this Bench and the alleged first bail application would have been rejected by this Bench., Having noticed that Sri Parmanand Gupta, learned counsel for the accused respondent, had played tricks to obtain a favourable order by styling the second bail application as the first bail application, the State has filed the present application for cancellation of bail granted to the accused respondent., This Court on 2 November 2022, taking note of the misleading facts mentioned in the bail application, passed the following order:, Heard Sri Rao Narendra Singh, learned Additional Government Advocate for the State., Notice on behalf of accused respondent, Mohd. Rizwan alias Raziwan, has been accepted by Sri Parmanand Gupta, the counsel who obtained bail from this Court by order dated 22 March 2022 in Criminal Miscellaneous Bail Application No. 2830 of 2022., Earlier this Court by a detailed order dated 19 February 2021 in Criminal Miscellaneous Bail Application No. 19872 of 2020 had rejected the bail application of the accused respondent., Sri Parmanand Gupta, learned counsel for the accused respondent, without disclosing that the High Court had earlier rejected the bail application, misled the Court and obtained bail for the accused respondent from another Bench. He has obtained several similar orders by concealing the material aspect that another Bench of this Court had rejected the bail applications of the accused persons. This is not the sole case in which Sri Parmanand Gupta has grossly misbehaved against the Bar Council Rules, professional ethics and is unbecoming of an officer of the Court. Prima facie, he is guilty of fraud on the Court and interfering with the course of justice by concealing the material fact of rejection of bail by another Bench to obtain favourable orders. He has made efforts to pollute the stream of justice by his highly unprofessional conduct., In view thereof, the Court is of the opinion that Sri Parmanand Gupta, Advocate, has, prima facie, committed contempt of this Court by concealing the material aspect of the matter and by misleading the Court obtained favourable order(s) of bail in respect of the accused respondent., Sri Parmanand Gupta, Advocate, is therefore issued a show‑cause notice as to why he should not be proceeded against for committing contempt of this Court and his entry to the High Court be barred in order to protect the dignity and integrity of the High Court. He is granted two weeks' time to file a reply to the show‑cause notice., Since the order dated 22 March 2022 passed in Criminal Miscellaneous Bail Application No. 2830 of 2022 was obtained by fraud, concealing the earlier order rejecting the bail application of the accused respondent and misleading the Court, the order dated 22 March 2022 is kept in abeyance till further orders., The State is directed to arrest the accused respondent forthwith, if he has been released on bail and put him behind bars., List this bail application on 17 November 2022., Considering the fact that the order dated 22 March 2022 was obtained on misrepresentation/false facts that this was the first bail application, the order dated 22 March 2022 passed in Criminal Miscellaneous Bail Application No. 2830 of 2022 enlarging the accused respondent, Mohd. Rizwan alias Raziwan, in the aforesaid case crime number, is hereby cancelled. He shall be taken into custody forthwith, if not already arrested., In view of the facts narrated above, Sri Parmanand Gupta, Advocate, has, prima facie, conducted himself against the Bar Council Rules, professional ethics, in a contemptuous manner and has played fraud with the Court and also interfered with the course of justice by misleading the Court as he concealed the material fact regarding rejection of the first bail application by this Bench. The Court has noted that this is not the solitary case where Sri Parmanand Gupta, Advocate, had adopted the said course of action of concealing and misleading the Court., In view thereof, the Court is of the opinion that Sri Parmanand Gupta, Advocate, has, prima facie, committed contempt of this Court., Let suo motu criminal contempt proceedings be drawn against Sri Parmanand Gupta, Advocate. Registry to take follow‑up action in the matter., Let all these orders form part of the contempt proceedings to be drawn against Sri Parmanand Gupta, Advocate., With the above noted terms, the bail cancellation application stands allowed.
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id_972
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Through: Mr. Hemant Daswani, Ms. Sauyma Bajpai, Advocate versus Respondent Through: Ms. Swati Sukumar, Mr. Essenese, Ms. Ashima Obhan, Mr. Ritik Raghuwanshi, Mr. Pratyush Rao, Ms. Ayesha Ghutha Kurtha, Ms. Seerat Bhutani, Mr. Naveen Nagarjuna, Advocate. Exemption allowed, subject to all just exceptions. Application shall stand disposed of., The plaintiff/appellant has instituted this appeal aggrieved by the order dated 23 May 2023 in terms of which a learned Single Judge has proceeded to allow an application moved by the defendant/respondent referable to Order XIIIA Rule 4 of the Code of Civil Procedure, 1908 as amended and adopted by the Commercial Courts Act, 2015., The defendant in terms of that application had sought the rendition of a summary judgment for dismissal of the suit on the ground that it was bereft of any cause of action. In terms of the order impugned, prayer a as made in the plaint came to be rejected., Prayer a of the plaint sought a permanent injunction restraining the defendant from making, selling, offering for sale, advertising, directly or indirectly any work including indulging in novelization of the film/script relating to the cinematograph work titled Nayak. The plaintiff essentially asserted that the novelization of the film/script amounted to an infringement of the copyright held by it., The learned Single Judge has noticed the case set forth in the plaint succinctly in the judgment impugned before us. For the sake of sketching a brief backdrop in the context of which the instant appeal arises, the following essential facts may be noticed. The legendary cinematographer and Bharat Ratna, the Late Mr. Satyajit Ray was commissioned by the karta of the plaintiff Hindu Undivided Family (HUF), to script a screenplay of and to direct the film Nayak. The plaintiff claims to be the producers of that film., On or about 2018, Mr. Bhaskar Chattopadhyay novelized the screenplay of Nayak which was published by the defendant and released on 05 May 2018. The plaintiff asserting itself to be the owner of the copyright in the screenplay of Nayak brought the suit for infringement., According to the defendant, the plaintiff's claim of copyright over the screenplay of Nayak is untenable since the same had been authored and scripted by the Late Mr. Satyajit Ray and consequently the copyright therein would vest in the said individual alone. It was further asserted that upon his death in 1992, the copyright in the said screenplay came to vest in his son Sandip Ray and the Society for Preservation of Satyajit Ray Archives. The defendant is stated to have obtained a license from Sandip Ray and SPSRA to novelize the same., While dealing with the application under Order XIIIA Rule 4 of the Code, the learned Single Judge has principally found that the plaintiff cannot claim any copyright in the screenplay since undisputedly the same had been authored by the Late Mr. Satyajit Ray. Finding that the screenplay would clearly fall within the ambit of a literary work for the purposes of Section 13(1)(a) of the Copyright Act, 1957, the Supreme Court of India has proceeded to observe as follows: 60.19 Given the ambit of the expression literary work, there can, in my view, be little doubt about the fact that the screenplay of a film Nayak is unquestionably a literary work for the purpose of Section 13(1)(a) of the Copyright Act. 60.20 Per sequitur, by operation of Section 13(4), the copyright in the screenplay, as a literary work, which stands vested by Section 13(1)(a), cannot be affected by the separate copyright in the cinematograph film itself, which, unquestionably, vests in the plaintiff as its producer., The learned Single Judge has in our opinion rightly rested the aforesaid conclusions on Section 13(4) of the Act which reads as under: 13. Works in which copyright subsists. (4) The copyright in a cinematograph film or a sound recording shall not affect the separate copyright in any work in respect of which or a substantial part of which, the film, or as the case may be, the sound recording is made., Proceeding then to deal with the principal issue of who could claim a copyright in the work in question, the learned Single Judge has returned the following findings: 62.3 As the first owner of the copyright in the screenplay of the film 'Nayak', therefore, the right to novelize the screenplay also vested in Satyajit Ray. That right could be assigned by him—and, consequent on his demise, by his son and others on whom the right devolved—on any other person, under Section 18(1) of the Copyright Act. The assignment of the right to novelize the screenplay of the film 'Nayak', by Sandip Ray and the SPSRA, in favour of the defendant is, therefore, wholly in order and in accordance with the provisions of the Act. On the other hand, the assertion, by the plaintiff, of the copyright in the screenplay of the film 'Nayak' is unsupported by any provision in the Act and is, in fact, in violation of the provisions which have been referred to hereinabove., 62.4 Copyright in the screenplay of the film 'Nayak' vested, therefore, consequent on the demise of Satyajit Ray, on his son Sandip Ray and the SPSRA. The conferment of the right to novelize the screenplay, by Sandip Ray and the SPSRA on the defendant, therefore, is wholly in order. I may note, here, that the plaintiff has not chosen to discredit the grant of the right to novelize the screenplay of the film to the defendant on any ground other than the contention that the copyright in the screenplay vested, not in Sandip Ray and the SPSRA, but in the plaintiff. That contention, I have already found, is completely without merit., The plaintiff/appellant did not at any point of time aver or assert that the screenplay had been drawn by anyone other than the Late Mr. Satyajit Ray. In view of the aforesaid, the provisions of Section 17 of the Act clearly applied and the copyright in the said screenplay would thus have to be recognised to vest in the author of the literary work who in this case was the Late Mr. Satyajit Ray., While the plaintiff/appellant may have been the producer of the film Nayak, it could not have possibly claimed a supervening right in the screenplay in light of the clear language and intent of Section 13(4) of the Act. Once it is recognised that the copyright existed in the author of the screenplay, any right which the plaintiff/appellant could claim in the cinematographic work would not have either impacted or diluted the right of the author of the screenplay., For all aforesaid reasons, we find no merit in the challenge raised to the impugned order. The appeal fails and shall stand dismissed.
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id_973
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Through: Mr. Sahil Mongia, Mr. Prateek Mehta, Mr. Vikas, Mr. Rahul Yadav, Mr. Sahil Rao, Ms. Megha Mehta, Advocates versus Respondent Through: Mr. Sanjeev Bhandari, Assistant Solicitor with Mr. Kunal Mittal, Advocate., This is a petition under the writ of habeas corpus seeking direction to the respondents numbered 3 and 4 to produce the petitioner before this Honorable Court and also to set aside the impugned order dated 15 June 2023 passed by the learned Duty Magistrate, South East District, Saket Court., It is stated by Mr. Mongia, learned counsel for the petitioner that in the present case, the Duty Magistrate should have seen the case diary and thereafter opined whether a case of transit remand has been made out. He further states that the Duty Magistrate could not have seen the case diary as it was in Marathi language and that the order of transit remand is illegal and hence the petition under habeas corpus., Mr. Bhandari, learned Assistant Solicitor states that the present petition is misconceived., The petitioner is in custody pursuant to the orders of the concerned Court dated 14 June 2023 and hence his custody is not illegal. He further states that the Duty Magistrate has duly applied his mind and thereafter held that the investigating officer will take the accused before the jurisdictional Magistrate, wherein his bail application would be adjudicated upon merits., Mr. Bhandari, learned Assistant Solicitor states that the petition in the present Court is not maintainable. He further states that the Duty Magistrate has applied his mind and thereafter passed the transit remand order., Mr. Mongia, learned counsel for the petitioner also relies upon the judgment of Gautam Navlakha versus National Investigation Agency., We have heard learned counsel for the parties., A perusal of the order dated 15 June 2023 shows that the application filed by the petitioner under Section 437 of the Criminal Procedure Code was not considered by the Duty Magistrate and the Duty Magistrate granted transit remand., We are of the view that the Duty Magistrate has the power to decide the application under Section 437 of the Criminal Procedure Code., We find support from the judgment of Gautam Navlakha versus National Investigation Agency (2021) SCC Online SC 382. Paragraphs 63, 64 and 65 read as follows:, Thus, an order under Section 167 is purely an interlocutory order. No revision is maintainable. A petition under Section 482 cannot be ruled out. When a person arrested in a non‑bailable offence is in custody, subject to the restrictions contained therein, a court other than the High Court or Court of Session, before whom he is brought, can release him on bail under Section 437 of the Criminal Procedure Code. Section 439 of the Criminal Procedure Code deals with special powers of the High Court and Court of Session to grant bail to a person in custody. The said courts may also set aside or modify any condition in an order by a Magistrate., In Central Bureau of Investigation, Special Investigation Cell v. Anupam J. Kulkarnis, the following statement is noted: \Now coming to the object and scope of Section 167 it is well‑settled that it is supplementary to Section 57. It is clear from Section 57 that the investigation should be completed in the first instance within 24 hours; if not the arrested person should be brought by the police before a Magistrate as provided under Section 167. The law does not authorise a police officer to detain an arrested person for more than 24 hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate court. Sub‑section (1) of Section 167 covers all this procedure and also lays down that the police officer while forwarding the accused to the nearest Magistrate should also transmit a copy of the entries in the diary relating to the case. The entries in the diary are meant to afford the Magistrate the necessary information upon which he can decide whether the accused should be detained in custody further or not. It may be noted even at this stage the Magistrate can release him on bail if an application is made and if he is satisfied that there are no grounds to remand him to custody but if he is satisfied that further remand is necessary then he should act as provided under Section 65. Thus, ordinarily, when the court considers a request for remand there would be an application for bail. It is for the court to grant bail failing which an order of remand would follow.\, Hence, we set aside the impugned order dated 15 June 2023 passed by the learned Duty Magistrate, South East District, Saket Court and direct that the application under Section 437 of the Criminal Procedure Code filed by the petitioner should be heard and decided on merits., As far as the maintainability of the writ of habeas corpus is concerned, we find support in paragraph 71 of the judgment Gautam Navlakha versus National Investigation Agency which reads as follows: \Thus, we would hold as follows: If the remand is absolutely illegal or the remand is afflicted with the void of lack of jurisdiction, a habeas corpus petition would indeed lie. Equally, if an order or remand is passed in an absolutely mechanical manner, the person affected can seek the remedy of habeas corpus. Barring such situation, a habeas corpus petition will not lie.\, Since the order of remand has been set aside, we are of the view that the habeas corpus petition lies before this Court. The order dated 15 June 2023 is hereby set aside with the direction to the Duty Magistrate to consider and decide the application moved by the petitioner under Section 437 of the Criminal Procedure Code within two days from receipt of the order., The petition is disposed of., The concerned investigating officer from the GK Police Station is present and has been apprised of the order to communicate this order to the Jail Superintendent.
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id_976
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The present appeals are directed against the impugned order and judgment dated 20.12.2019 in RFA No. 392 of 2012 (DEC) and the impugned judgment and order dated 15.07.2022 in Review Petition No. 365 of 2022 passed by the High Court of Karnataka at Bengaluru, whereby both the appeal and the review preferred by the appellants herein were dismissed., The relevant facts necessary for the adjudication of the present appeals, for the sake of convenience, are being mentioned herein., One Late Arosji Rao was the original owner of the suit property and had two daughters. The said Late Arosji Rao, before his death, executed a Will dated 17.07.1945, bequeathing the suit property to both of his daughters in equal share. In the said Will, among other things, it was stated that both the legatees were to enjoy the suit property during their entire lifetime, and thereafter, the same was to be transferred to their respective male heirs. The said Late Arosji Rao subsequently died on 30.09.1945, and the abovementioned Will was probated., The two daughters of the original owner Late Arosji Rao, Smt. Kamala Bai and Smt. Anusuya Bai, as joint owners of the bequeathed suit property, executed a lease deed in favour of M/s Rajatha Trust for a period of 45 years. During the tenure of the said lease, on 07.07.1988, Smt. Kamala Bai passed away, and as per the Will of the original suit owner, part of the suit property was to flow to the heirs of Smt. Kamala Bai., After the death of Smt. Kamala Bai, a dispute arose between her heirs and Smt. Anusuya Bai, on account of which Smt. Anusuya Bai filed a suit for partition and possession of her part of the bequeathed suit property. The matter was however settled by both the parties, and a compromise decree was passed. It was agreed upon by both the parties to divide the suit property in equal shares., Subsequent to the compromise decree, the sons of Smt. Anusuya Bai, who are respondent No.1 and respondent No.2 herein, filed a suit against their mother and the sons of Late Smt. Kamala Bai, seeking mandatory injunction., During the said suit, Smt. Anusuya Bai leased the suit property to the appellants herein for a period of 51 years. The appellants then started construction of a commercial complex on the suit property, however, the respondents, as against the said construction, obtained a stay order in their favour., In the aforesaid suit, the Trial Court, apart from framing other relevant issues, also framed five additional issues which are as under: (i) Whether the plaintiffs prove that the defendant no. 1 has only life interest in the suit property? (ii) Whether the plaintiffs prove that the defendant no. 1 has no right to deal with the suit property beyond her lifetime? (iii) Whether the plaintiffs further prove that any leases, etc., of the suit property by the defendant no. 1 for the period beyond her lifetime are void and not binding upon them? (iv) Whether the defendant no. 7 proves that he has lawfully entered into an agreement of sale with defendant no. 2 and 3 for their respective portion of property? (v) Whether the defendant no. 7 proves that there will be miscarriage of justice if this suit is decreed against the entire schedule property?, Vide order and judgment dated 11.04.2002, the Learned Trial Court dismissed the suit filed by the respondents herein, vacated the stay order, and held that the compromise decree entered into between the parties is binding on the respondents., Aggrieved by the same, the respondents preferred an appeal in the High Court of Karnataka at Bengaluru. During the pendency of the said appeal, Smt. Anusuya Bai passed away. Further, the respondents also filed an application under Order VI Rule 17 of the Code of Civil Procedure for amendment of plaint and sought relief of recovery of possession of property., Vide order and judgment dated 10.08.2007, the High Court of Karnataka at Bengaluru did not disturb the finding of the Trial Court regarding the compromise decree being binding on the respondents; however, in respect of the additional relief of possession of part of suit property, the matter was remanded to the Trial Court for proper adjudication., Aggrieved by the same, appellant No.1 herein filed a Special Leave Petition in the Supreme Court of India, and during the pendency of the said Special Leave Petition, the Trial Court proceeded with the matter remanded to its jurisdiction., Vide order and judgment dated 29.10.2011, the Trial Court on the limited ground of possession of part of the suit property, decreed the suit in favour of respondent No.1 and respondent No.2 herein., Aggrieved by the aforesaid judgment and decree of the Trial Court, the petitioner(s) therein filed another appeal in the High Court of Karnataka at Bengaluru. During the pendency of the said first appeal before the High Court, the Special Leave Petition filed in the Supreme Court of India by the petitioner(s)/appellant(s) was dismissed vide order dated 03.01.2013 on the ground that the relief prayed for in the Special Leave Petition had exhausted itself., However, while dismissing the said Special Leave Petition, this Court held that since the first appeal filed against the judgment dated 29.10.2011 was still pending before the High Court and that there were issues raised in the Special Leave Petition qua the remand order, this Court gave liberty to the petitioner(s) therein to raise all such questions before the High Court in the pending appeal without being influenced by the remand order. Subsequently, the said first appeal also came to be dismissed vide judgment dated 20.12.2019., Aggrieved by the dismissal of the first appeal, the petitioner(s)/appellant(s) filed another Special Leave Petition before the Supreme Court of India; however, the same was dismissed as withdrawn with liberty to approach the High Court by means of filing a review petition., For the sake of clarity, in such a case where a multiplicity of proceedings exists, we find it crucial to clarify that as far as the present appeals are concerned, challenge is confined to two orders dated 20.12.2019 and 15.07.2022 passed by the High Court of Karnataka at Bengaluru., At the first instance, by way of an earlier Special Leave Petition, the original impugned order of the High Court dated 20.12.2019 was challenged. This Court had dismissed the same; however, liberty was granted to the petitioner(s)/appellant(s) to approach the High Court by way of a review., The said liberty was utilized by the appellant(s), and a review was filed in the High Court of Karnataka at Bengaluru. The same however was dismissed by the High Court vide impugned order and judgment dated 15.07.2022., In the present appeals, both the original impugned order by the High Court in appeal, as well as the order in review by the High Court, are being challenged., The learned counsel appearing on behalf of both the parties were heard in great detail., At the first instance, the learned counsel appearing on behalf of the respondents has raised a preliminary objection as far as the maintainability of the present appeals are concerned., We are of the considered opinion that only after the issue of maintainability is decided upon, can this Court enter into the merits of the case. The issue of maintainability of Special Leave Petition is akin to a rite of passage, and only after it is deemed that Special Leave Petition is maintainable, can an entry be taken into the merits of a dispute., It is the contention of the respondents that as far as an appeal by way of Special leave against an order passed in review is concerned, the provisions of Order XLVII Rule 7 make it amply clear that the same is not permissible, that is to say, no appeal by way of Special Leave Petition against an order passed in review is maintainable., Further, it has also been contended by the respondents, that this Court, while dismissing the original Special Leave Petition filed by the petitioner(s) therein, while it granted liberty to the petitioners to approach the High Court in review, did not give the petitioners specific permission to file a subsequent Special Leave Petition before this Court. Such lack of explicit permission, as per the respondent, places a bar on the petitioners to approach this Court again. For this, the respondent has relied on the case of Sandhya Educational Society Vs. Union Of India., As far as the first contention of the respondent is concerned, we concur with the same. Order XLVII Rule 7 of the Code of Civil Procedure makes it amply clear that no Special Leave Petition can be filed against an order passed in review, and as such, does not require our further consideration. For a ready reference, the same is being reproduced herein: Order of rejection not appealable. Objections to order granting application. (1) An order of the Court rejecting the application shall not be appealable; but an order granting an application may be objected to at once by an appeal from the order granting the application or in an appeal from the decree or order finally passed or made in the suit. (2) Where the application has been rejected in consequence of the failure of the applicant to appear, he may apply for an order to have the rejected application restored to the file, and, where it is proved to the satisfaction of the Court that he was prevented by any sufficient cause from appearing when such application was called on for hearing, the Court shall order it to be restored to the file upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for hearing the same. (3) No order shall be made under sub‑rule (2) unless notice of the application has been served on the opposite party., The appellants however, to overcome such bar, in the present appeals, have not only impugned the order passed by the High Court in review, but have also impugned the original order passed by the High Court in appeal. The limited question, therefore, posed before us for our consideration, is whether liberty granted by this Court to approach the High Court in review automatically places the said matter in the escalation matrix, and makes the remedy of Special Leave Petition available again., In the case of Vinod Kapoor Vs. State Of Goa, the petitioner therein had filed a writ in the High Court and the same was dismissed. As against this, the petitioner filed a review in the High Court and also filed Special Leave Petition in the Supreme Court of India. When the Special Leave Petition came to be heard, the petitioner stated that he had already filed a review, and hence, sought liberty to withdraw the case, and on the same grounds, the Special Leave Petition was dismissed as withdrawn., After the withdrawal of the Special Leave Petition, the review petition was heard by the High Court; however, the same was dismissed. Aggrieved by the said dismissal of the review, the petitioner filed another Special Leave Petition in the Supreme Court of India., While dealing with a similar fact circumstance as in the present case, wherein a consecutive Special Leave Petition was filed and the order in the original Special Leave Petition only gave an explicit liberty to approach the High Court, this Court held that the subsequent Special Leave Petition was not maintainable. The relevant paragraphs of the said judgment are being produced herein: There is nothing in the decisions cited by the appellant to show that this Court has taken a view different from the view taken in Abhishek Malviya v. Additional Welfare Commissioner and Another with regard to maintainability of an appeal by way of Special Leave under Article 136 of the Constitution against an order of the High Court after an earlier Special Leave Petition against the same order had been withdrawn without any liberty to file a fresh Special Leave Petition. Similarly, there is nothing in the decisions cited by the appellant to show that this Court has taken a view that against the order of the High Court rejecting an application for review, an appeal by way of Special Leave under Article 136 of the Constitution is maintainable. In the result, we hold that the Civil Appeals are not maintainable and we accordingly dismiss the same., Further, in the case of Sandhya Education Society (Supra), a two‑Judge Bench of this Court, while accepting the principle laid down in the Vinod Kapoor Judgment (Supra), categorically held that once Special Leave Petition is dismissed as withdrawn, if no explicit liberty has been granted to approach the Supreme Court by way of a subsequent Special Leave Petition, the same cannot be allowed. For a ready reference, the relevant extract of the said judgment is being placed hereunder: This Court in Vinod Kapoor v. State of Goa, has categorically observed that once the special leave petition is dismissed as withdrawn without obtaining appropriate permission to file a special leave petition once over again after exhausting the remedy of review petition before the High Court, the same is not maintainable., Per contra, the learned counsel appearing on behalf of the appellants has relied upon the case of Khoday Distilleries Ltd. Vs. Sri Mahadeshwara Sahakara Sakkare Karkhane Ltd., wherein it has been observed that the doctrine of merger is not applicable in cases where the dismissal of Special Leave Petition is by way of a nonspeaking order. The relevant paragraphs of the said judgment, for the sake of convenience, are being reproduced herein: We reiterate the conclusions relevant for these cases as under: (Kunhayammed case | Kunhayammed v. State of Kerala, (2000) 6) (iv) An order refusing special leave to appeal may be a nonspeaking order or a speaking one. In either case it does not attract the doctrine of merger. An order refusing special leave to appeal does not stand substituted in place of the order under challenge. All that it means is that the Court was not inclined to exercise its discretion so as to allow the appeal being filed. (v) If the order refusing leave to appeal is a speaking order i.e. gives reasons for refusing the grant of leave, then the order has two implications. Firstly, the statement of law contained in the order is a declaration of law by the Supreme Court within the meaning of Article 141 of the Constitution. Secondly, other than the declaration of law, whatever is stated in the order are the findings recorded by the Supreme Court which would bind the parties thereto and also the Court, tribunal or authority in any proceedings subsequent thereto by way of judicial discipline, the Supreme Court being the Apex Court of the country. But, this does not amount to saying that the order of the Court, tribunal or authority below has stood merged in the order of the Supreme Court rejecting the special leave petition or that the order of the Supreme Court is the only order binding as res judicata in subsequent proceedings between the parties. (vi) Once leave to appeal has been granted and appellate jurisdiction of the Supreme Court has been invoked the order passed in appeal would attract the doctrine of merger; the order may be of reversal, modification or merely affirmation. (vii) On an appeal having been preferred or a petition seeking leave to appeal having been converted into an appeal before the Supreme Court the jurisdiction of the High Court to entertain a review petition is lost thereafter as provided by sub‑rule (1) of Order 47 Rule 1 of the Code of Civil Procedure., While the law laid down by the two judgments relied upon by the appellants, and other judgments in line with the said two judgments explicitly state that specific liberty is a requirement for filing a subsequent Special Leave Petition after the withdrawal of the first Special Leave Petition, however, a crack seems to appear in the foundation of the said judgments when the judgment of Khoday Distilleries (Supra) is read into in detail., In the case of Khoday Distilleries (Supra), the question that was raised before this Court was different from the present case, however, the underlying logic of the said judgment, in our opinion, has bearing on the issue raised before us in the present case. In the said case, a three‑judge bench of this Court was tasked with answering the question of whether a review petition in the High Court is maintainable, once Special Leave Petition raising the same issue has been dismissed. This Court, while relying upon the case of Kunhayammed Vs. State of Kerala, held that even after the dismissal of the Special Leave Petition, a review before the High Court is still maintainable., While the conclusion of the said judgment is not relevant to the present case at hand, however, the reasoning behind coming to the said conclusion, in our opinion, has bearing on the present case. This Court, in the abovementioned case, while holding that a review is maintainable even after the dismissal of Special Leave Petition, observed that the dismissal of Special Leave Petition by way of a nonspeaking order does not attract the doctrine of merger., In simpler terms, this would essentially mean that even in cases where the Special Leave Petition was dismissed as withdrawn, where no reason was assigned by the Court while dismissing the matter and where leave was not granted in the said Special Leave Petition, the dismissal would not be considered as laying down law within the ambit of Article 141 of the Constitution of India., If a dismissal of Special Leave Petition by way of a nonspeaking order is not considered law under Article 141 of the Constitution of India, the same also cannot be considered as res judicata, and therefore, in every such dismissal, even in cases where the dismissal is by way of a withdrawal, the remedy of filing a fresh Special Leave Petition would still persist. Further, if on the said reasoning, a remedy to file a review in the High Court is allowed, then the same reasoning cannot arbitrarily exclude the filing of a subsequent Special Leave Petition., We are painfully aware of the fact that such an interpretation, if expanded beyond the specific scope of filing a review in the High Court is allowed, it would open the floodgates of litigation, and would essentially mean that every dismissal of Special Leave Petition must be accompanied with reasons declaring the same., Therefore, in light of the abovementioned observations, we are of the opinion that to put a quietus to such an issue, it is necessary for the same to be adjudicated and deliberated upon by a larger bench of this Court. Further, since only after such a preliminary objection is decided, can the merits of the present case be entered into, the same is to be placed before an appropriate bench after the question of law is decided by the larger bench., Accordingly, let the papers of the case be placed before the Honorable Chief Justice of India for constituting a larger bench.
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Appellate Side Present: The Hon'ble Justice Joymalya Bagchi and The Hon'ble Justice Ajay Kumar Gupta. Criminal Revision Appeal 561 of 2015 Jiten Barman versus The State of West Bengal. For the appellant: Mr. Amitabha Karmakar, Advocate. For the State: Mr. Parthapratim Das, Advocate; Mrs. Manasi Roy, Advocate. Heard on 21 December 2022. Judgment on 11 January 2023. Ajay Kumar Gupta, Judge., The instant appeal is directed against the judgment and order dated 15 June 2015 and 18 June 2015 passed by the Additional Sessions Judge, 3rd Court, Tamluk in Sessions Trial No. 3(11)/2014 arising out of Sessions Case No. 299 (June) of 2014, whereby the appellant was convicted and sentenced to rigorous imprisonment for ten years along with a fine of Rs 30,000, and in default to suffer simple imprisonment for six months for the offence punishable under Section 326A and Section 34 of the Indian Penal Code., The prosecution case states that Smt. Pampa Barman, the mother and sister of the victims, alleged that on 10 August 2013 at night after dinner her daughter Sastika Barman and sister Shampa Barman were sleeping in their father's house. At about 2 a.m. the sister and daughter started shouting loudly. Upon awakening, the parents switched on the electric light and noticed that the face, breast of the sister and the belly, hand and leg of the daughter were burnt extensively with blisters. The room was suffused with the essence of carbolic acid. The sister and daughter were immediately taken to hospital for treatment and were admitted in Tamluk District Hospital in serious condition., It was further alleged that Jiten Barman, son of Dipak Barman of Rajanagar Baharjola, Police Station Tamluk, and his friend Gajen Jana, son of Naru Jana of Kalapenya, Police Station Nandakumar, District Purba Medinipur, used to tease the sister in various manners while she was going to school. Jiten Barman proposed marriage to her. When she disagreed, he threatened that if she did not marry him he would disfigure her so that no man would marry her and that everyone would be frightened by her face. After the sister informed her parents, they stopped her from going to school and arranged her marriage. The bridegroom’s party was scheduled to visit from Haur on 11 August 2013 for betrothal. It was her strong belief that Jiten Barman and Gajen Jana had spoiled the lives of her sister and daughter by throwing acid on them. She submitted a written complaint, resulting in Tamluk Police Station Case No. 338 of 2013 dated 11 August 2013, which was started under Sections 450, 326A and 307 of the Indian Penal Code against the appellant and Gajen Jana., The Officer-in-Charge, Tamluk Police Station, initially entrusted the case for investigation to Sub‑Inspector Swapan Chabri, who, upon his transfer, handed over the investigation to another police officer, Sri Maniklal Adak. After completion of investigation, a charge sheet was filed against the appellant and Gajen Jana under Sections 450, 326A, 307 and 34 of the Indian Penal Code., The case was committed to the Court of Session after taking cognizance by the Chief Judicial Magistrate, as the case was triable by a Sessions Court. Subsequently, the case was transferred to the Additional Sessions Judge, 3rd Court, Tamluk for trial and disposal., Charge was framed under Sections 450, 326A, 307 and 34 of the Indian Penal Code against the appellant and Gajen Jana, who pleaded not guilty. In order to prove the case, the prosecution examined twelve witnesses and exhibited documents as Exhibits 1 to 14 and material Exhibits I and II., The defence of the appellant was that he was innocent and falsely implicated. During questioning by the Additional Sessions Judge under Section 313 of the Code of Criminal Procedure, the appellant made a simple denial, although incriminating oral and documentary materials were brought to his notice. No evidence was adduced by the defence., After appreciation of the oral evidence and consideration of the documents exhibited by the prosecution, the Additional Sessions Judge, by the impugned judgment and order, convicted and sentenced the appellant as mentioned above. By the same judgment, co‑accused Gajen Jana was convicted and sentenced similarly, although he has not preferred an appeal against his conviction and sentence as revealed from the office report., Learned counsel for the appellant submitted that the trial court did not appreciate the prosecution evidence that none of the witnesses saw the accused at the place of the incident or committing the offence as alleged. The victims only suspected that Jiten Barman and Gajen Jana committed the offence because they were causing disturbance and teasing Sampa Barman on her way to school. The appellant loved her and wanted to marry her. No witness explained how the accused entered the house where the incident took place. There was no eyewitness; the case is totally based on circumstantial evidence. Witnesses failed to identify the appellant in court and no T.I. parade was held by the prosecution. The prosecution’s suspicion is not sufficient to hold the appellants guilty. The prosecution also failed to prove with reliable evidence the harassment and teasing of the victim while going to school. Finally, the trial court convicted and sentenced the appellant on the basis of surmise and conjecture only. Therefore, the order of conviction should be set aside., Learned counsel for the State submitted that there was a clear motive for throwing acid on the victims while they were sleeping. The appellant had threatened the victim prior to the incident that if she would not marry him he would disfigure her so that no man would marry her and everyone would be frightened to see her face. Accordingly, they committed the offence when they learned that the parents of Sampa Barman had arranged her marriage and the engagement date was fixed on 11 August 2013. Medical evidence showed that the victims suffered injuries from a chemical substance such as acid. Therefore, their conviction is correct and requires no interference by this Court. The appeal is liable to be dismissed., The proper appreciation of evidence is the heart and soul of criminal jurisprudence and is necessary for a just adjudication of the case. At the outset, on perusal of the entire evidence it is found that P.W. 1 (complainant, Pampa Barman), P.W. 3 (Pramila Barman, mother of victim Sampa Barman), P.W. 4 (Rabindra Nath Barman, father of victim Sampa Barman), P.W. 5 (Madan Barman, father of another victim Swastika Barman) and P.W. 6 (Swapan Barman, uncle of victim Sampa Barman) were declared hostile by the prosecution., P.W. 2, the victim girl, narrated that on the night of the incident she was sleeping along with her niece Sastika (daughter of P.W. 1) on the floor of a room. Suddenly she woke up feeling a burning sensation on her face and both hands. Minor Sastika also sustained burn injuries on her belly and legs. They cried out. Their mother switched on the light. Their father, mother and uncle rushed them to Janubasan Block Primary Health Centre and thereafter both were referred to Tamluk District Hospital. Minor Sastika was admitted for twelve days. She further deposed that she knew the appellant and his friend. Prior to the incident, the appellant and his friend were causing disturbance and teasing them on the way to school. Jiten Barman expressed that he loved her and wanted to marry her. Accordingly, she formed the belief that both were involved in the incident., P.W. 7, another victim, deposed that she was sleeping in her maternal uncle’s house and sustained burn injury from acid. She corroborated that her aunt Sampa Barman also sustained acid burns on her belly. She was treated in hospital. She failed to identify the appellant and the other convict in court. During cross‑examination she admitted that she suspected Jiten Barman and Gajen Jana committed the offence because they were causing disturbance and teasing her on the way to school, although she never disclosed the disturbance to her teacher or classmates., P.W. 8, a doctor attached to District Hospital Tamluk, deposed that on 11 August 2013 she was posted as surgeon of Purba Medinipur District Hospital, Tamluk. She examined Swastika Barman, aged five years and four months, who was admitted under her care after referral from Janubasan Block Primary Health Centre. The patient had chemical burns on about twenty percent of the total body surface area and was discharged on 20 August 2013 in favourable condition. She also examined Sampa Barman, aged about eighteen years, who had acid burns on about twenty percent of the body surface involving face, chest, right axilla and right leg. Sampa Barman was discharged on 26 August 2013 in favourable condition. The bedside health records for the two patients were noted in six sheets in her own handwriting and were exhibited as Exhibit 4 series with the doctor’s signature marked as Exhibit 4/1., P.W. 9, a doctor, deposed that he examined Sampa Barman and Swastika Barman. At the time of examination Sampa Barman was unconscious with acid injuries on face, neck and chest amounting to twenty‑eight percent of the body surface, superficial in nature. The incident was reported to have occurred at 1.45 a.m. on 11 August 2013, and the examination was at 2.15 a.m. Swastika Barman was semi‑conscious with acid burns on the abdomen covering about eighteen percent of the body surface, also superficial. The injury reports were marked as Exhibit 5 with the doctor’s signature as Exhibit 5/1. The emergency tickets from Janubasan Block Primary Health Centre for Swastika and Sampa Barman were marked as Exhibit 6 and Exhibit 7 respectively, with the doctor’s signatures as Exhibit 6/1 and Exhibit 7/1. Both patients were referred to Tamluk District Hospital for further treatment., The investigating officer, P.W. 12, deposed that on 11 August 2013 he was posted as Sub‑Inspector at Tamluk Police Station and was entrusted by the Officer‑in‑Charge Arun Kumar Khan to investigate Police Station Tamluk Case No. 338 dated 11 August 2013 under Sections 450, 326A and 307 of the Indian Penal Code against Jiten Barman and Gajen Jana. He identified the handwriting and signature of Officer‑in‑Charge Arun Kumar Khan in the formal FIR, which were exhibited as Exhibit 9 and Exhibit 9/1. He visited the place of occurrence, prepared a rough sketch map and index (Exhibit 10 and Exhibit 10/1). During investigation he examined witnesses including Pramila Barman, Rabindra Nath Barman, Madan Barman, Swapan Barman, victim Sampa Barman, Dr. Basudeb Das, Dr. Tridibesh Banerjee and Pamba Barman, recording their statements under Section 161 of the Code of Criminal Procedure. He also seized a 100 ml bottle of carbolic acid, a green mosquito net, a pillow cover with the smell of carbolic acid, a green churidar top and the lower part of a violet churidar, listed in Exhibit 11 with the officer’s signature as Exhibit 11/1. He collected injury reports from Janubasan Block Primary Health Centre and bed‑head tickets from Tamluk District Hospital (Exhibits 4, 4/1, 5, 5/1, 6, 6/1, 7 and 7/1) and call details from the suspects’ mobile phones (Exhibit 12). He recorded the statement of the father under Section 164 of the Code of Criminal Procedure. He was transferred on 20 December 2013, and the incomplete charge diary was handed over to the Officer‑in‑Charge for further investigation, which was later handed over to the second investigating officer, P.W. 11., P.W. 11 deposed that after receiving the charge diary he reviewed the written complaint, FIR, papers and documents collected by the previous investigating officer, Sub‑Inspector Swapan Chabri. He arrested Gajen Jana from Kaktia on 14 May 2014 and forwarded him before the Chief Judicial Magistrate, Tamluk. The other accused, Jiten Barman, surrendered before the Chief Judicial Magistrate on 26 May 2014. After completion of investigation he submitted a charge sheet under Sections 450, 326A, 307 and 34 of the Indian Penal Code against both accused, after consultation with the superior officer., From the hostile witness testimony, this Court finds that P.W. 1 deposed that the incident occurred at about 1 a.m. in her father’s house at Kaktia. She was informed by her mother over the phone and went to the house at about 2 a.m., where she found her sister Sampa and niece Sastika sleeping on the floor with burn injuries. She lodged a written complaint against the appellant and Gajen Jana. Although she knew the accused prior to the incident, she could not identify the appellant. She identified her signature on the seizure list as a witness., P.W. 3, Pramila Barman, deposed that the victims were sleeping in her house. That night her husband, daughter Sampa Barman and granddaughter Sastika Barman were sleeping in the same room. She and her husband slept on a cot, while Sampa and Sastika slept on the floor. At about 2 a.m. Sampa raised a hue and cry, crying that she had sustained acid injuries on her face and body, and Sastika also sustained acid burns on her belly. They were taken to Nonakuri Block Primary Health Centre and then referred to Tamluk District Hospital, where they stayed for twenty days. She failed to identify the appellant or Gajen Jana in court and stated that she was never interrogated by the police., P.W. 4, 5 and 6 gave testimony similar to P.W. 3 and were unable to identify the appellant or Gajen Jana., Upon careful perusal of the evidence and the judgment delivered by the trial court, this Court finds that the trial court relied mainly on the testimony of victims and doctors (P.W. 2, 7, 8 and 9). Most of the witnesses turned hostile, and even family members present at the place of occurrence did not support the prosecution. Prosecution must prove its case by leading cogent, reliable and credible evidence. None of the witnesses could identify the appellant or the co‑accused as the perpetrators. The case is therefore not based on direct evidence. The prosecution attempted to rely on circumstantial evidence. Established jurisprudence requires that the circumstances must be fully established, consistent only with the hypothesis of guilt, of a conclusive nature, and must form a chain of evidence that leaves no reasonable ground for innocence. In the present case only two circumstances have been proved: (i) the victims suffered acid burn injuries, corroborated by medical documents and doctors’ evidence; and (ii) the appellant and Gajen Jana used to tease victim Sampa Barman while she was going to school, and Jiten Barman had threatened to disfigure her if she did not marry him. No other evidence places the accused at the scene. Witnesses gave contradictory accounts of the place of occurrence. Hostile witnesses, while supporting portions of the prosecution case, failed to identify the appellant. The victims could not state who threw the acid. No family members, neighbours or others saw the appellant at the scene. The prosecution’s suspicion does not constitute proof. On the basis of suspicious circumstances, the appellant cannot be held guilty. Suspicion, however high, cannot replace proof of guilt. Accordingly, the appellant is entitled to the benefit of doubt and ought to be acquitted., The impugned judgment and order of conviction and sentence are therefore set aside. The appellant is acquitted of the offence levelled against him., The other convict, Gajen Jana, did not file an appeal against the same judgment. However, he stands on the same footing as the appellant. In the interest of justice, he is to be extended the same relief and acquitted of the charge, in view of the law declared in Sahadevan & Anr. v. State of Tamil Nadu and Md. Sajjad v. State of West Bengal., The appeal is allowed. The appellant as well as co‑convict Gajen Jana shall be set at liberty forthwith if they are not wanted in any other case, upon execution of a bond to the satisfaction of the Additional Sessions Judge, 3rd Court, Tamluk, which shall remain in force for a period of six months in terms of Section 437A of the Code of Criminal Procedure. Lower court records along with a copy of the judgment shall be sent to the Court of Session for necessary action. A certified photocopy of this judgment, if applied for, shall be given to the parties on priority basis upon compliance of all formalities.
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Future Retail Ltd. (FRL) filed the present suit implementing Amazon.com NV Investment Holdings LLC as Defendant No.1; Future Coupons Pvt. Ltd. (FCPL) as Defendant Nos.2; the promoters of the plaintiff (the Biyanis) as Defendant Nos.3 to 11; Future Corporate Resources Private Limited (FCRPL), Akar Estate and Finance Private Limited (AEFPL) as Defendants Nos.12 and 13 respectively; and Reliance Retail Ventures Limited (RRVL) and Reliance Retail and Fashion Lifestyle Limited (RRFLL) as Defendant Nos.14 and 15 respectively (together referred to as Reliance). The plaintiff is represented by Mr. Harish Salve and Mr. Darius J. Khambata, Senior Advocates, with Mr. Somasekhar Sundaresan, Mr. Raghav Shankar, Mr. Ameet Naik, Mr. Aditya Mehta, Mr. Tushar Hathiramani, Mr. Abhishek Kale, Ms. Madhu Gadodia, Mr. Harshvardhan Jha and Mr. Darshan Furia, Advocates. The defendants are represented by Mr. Gopal Subramanium, Mr. Gourab Banerji, Mr. Rajiv Nayar and Mr. Amit Sibal, Senior Advocates, with Mr. Anand S. Pathak, Mr. Amit K. Mishra, Mr. Shashank Gautam, Ms. Sreemoyee Deb, Mr. Mohit Singh, Mr. Harshad Pathak, Ms. Promit Chatterjee, Mr. Shivam Pandey, Ms. Kanika Singhal, Ms. Saloni Agarwal, Ms. Didon Misri, Advocates, 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, Mr. Pawan Bhushan, Ms. Hima Lawrence, Ms. Ujwala Uppaluri, Mr. Mohit Pandey, Ms. Raka Chatterji, Ms. Manjira Dasgupta, Mr. Aishvary Vikram, Mr. Ambar Bhushan and Mr. Vinay Tripathi, Advocates for Defendant No.1; Mr. Mukul Rohtagi and Mr. Vikram Nankani, Senior Advocates, with Mr. Mahesh Agarwal, Mr. Rishi Agarwala, Mr. Karan Luthra, Mr. Pranjit Bhattacharya and Mr. Ankit Banati, Advocates for Defendants Nos.2 to 13; and Dr. Abhishek Manu Singhvi, Senior Advocate, with Mr. Avishkar Singhvi, Ms. Madhavi Khanna, Mr. K. R. Sasiprabh and Mr. Aditya Swarup, Advocates for Defendants Nos.14 and 15., The plaintiff seeks the following reliefs: (a) a permanent injunction restraining Amazon.com NV Investment Holdings LLC, its officers, servants, agents, assigns, affiliates, representatives or any person claiming through or under them, jointly and severally, from interfering in any manner with the Disputed Transaction, including by injuncting the initiation or continuation of proceedings before any court, arbitral tribunal, regulator, statutory authority or otherwise seeking to stay, injunct or otherwise interdict consideration of the Disputed Transaction by the jurisdictional authorities in accordance with law; (b) a permanent injunction restraining Amazon.com NV Investment Holdings LLC and its affiliates from taking any steps that would constitute interference with the steps being taken by the plaintiff to secure the requisite sanctions and permissions for giving effect to the scheme of arrangement and honouring its contractual rights on its contract with Defendants Nos.14 and 15, including steps relying upon the purported Interim Order dated 25 October 2020 passed by the Emergency Arbitrator; (c) a permanent injunction restraining Amazon.com NV Investment Holdings LLC and its affiliates from seeking any relief or remedy from any court, arbitral tribunal, regulator, statutory authority or otherwise on the basis that the FCPL Shareholders' Agreement, FCPL Share Subscription Agreement and the FRL Shareholders' Agreement constitute a single integrated agreement/composite transaction; (d) an order for damages against Amazon.com NV Investment Holdings LLC to the extent of one hundred crore rupees for drawing the plaintiff into unnecessary, frivolous and oppressive litigation along with pendente lite and future interest at the rate of eighteen percent per annum; (e) an order for costs of the suit and the proceedings; and (f) such other orders as the Supreme Court of India may deem fit and proper in the facts and circumstances of the case and in the interest of justice, equity and good conscience., The prayers in the interim application I.A.10376/2020 (under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure) are identical to prayers (a), (b) and (c) in the plaint., The parties agreed that the application may be finally decided without formal counter‑affidavits based on oral arguments. Mr. Harish Salve, Senior Advocate appearing for the plaintiff, further stated that in the interim application he is not seeking any anti‑arbitration injunction or any anti‑suit injunction but only an interim restrain on Amazon.com NV Investment Holdings LLC to not interfere before authorities such as the Securities and Exchange Board of India in relation to the lawful transaction between Future Retail Ltd. and Amazon.com NV Investment Holdings LLC pending consideration before the regulators and statutory authorities., Although the plaintiff does not challenge the Emergency Arbitration order dated 25 August 2020 on merits, the grievance is the use of that order and the interim directions restraining the plaintiff from proceeding further with the resolution dated 29 August 2020. The legal status of the Emergency Arbitrator and the consequential Emergency Arbitration order is an issue in the present suit and application. The argument, supported by all defendants except Amazon, is that the concept of emergency arbitration is outside the scope of Part‑I of the Arbitration and Conciliation Act, 1996, and therefore the Emergency Arbitration order is bereft of jurisdiction and a nullity. Consequently, the directions on the strength of which Amazon is filing representations to various statutory authorities interfere with the business of Future Retail Ltd. and amount to tortious interference for which the plaintiff seeks injunction., Future Retail Ltd. is a listed company with more than three lakh shareholders and over twenty‑five thousand employees, operating retail chains in more than four hundred cities across India through digital platforms and about one thousand five hundred thirty‑four physical stores. The COVID‑19 pandemic has had a devastating impact on the Indian retail sector, placing Future Retail Ltd. in serious economic peril. Its financial condition is rapidly deteriorating with notices from banks, financial institutions, creditors, landlords and vendors. Reliance Retail Ventures Limited is acquiring the retail, wholesale, logistics and warehousing businesses of the Future Group on a slump‑sale basis for a lump‑sum aggregate consideration of INR twenty‑four thousand seven hundred thirteen crore, subject to adjustments as set out in the composite scheme of arrangement (the scheme). The transaction will address the concerns of Future Retail Ltd.'s creditors as Reliance will acquire not only its retail assets but also liabilities amounting to approximately INR twelve thousand eight hundred one crore. Reliance has also agreed to invest INR two thousand eight hundred crore into the merged entity, which will be used to pay Future Retail Ltd.'s residual liabilities, thereby averting insolvency. If the transaction falls through, Future Retail Ltd. will go into liquidation, causing damage to public shareholders and employees. The transaction will also preserve the value of Amazon's investment in Future Coupons Pvt. Ltd., whose primary asset is its shares in Future Retail Ltd.; insolvency of Future Retail Ltd. would destroy the substratum of that investment. Accordingly, even apart from the alleged invalidity of the Emergency Arbitration order, Amazon's conduct in interfering before statutory authorities amounts to tortious interference., Since the assets of Future Retail Ltd. are deteriorating rapidly, it is imperative that the transaction with Reliance be concluded expeditiously to prevent liquidation. The transaction is presently at the stage of seeking various regulatory approvals, including from stock exchanges and the Securities and Exchange Board of India. Although Amazon was kept in the loop, on 3 October 2020 Amazon wrote to the NSE, BSE and SEBI raising the plea that the transaction between Future Retail Ltd. and Reliance violated its contractual rights under the Future Coupons Pvt. Ltd. Shareholders' Agreement and urged the authorities to decline approval. Amazon also instituted arbitration proceedings under the FCPL Shareholders' Agreement resulting in the interim award which purports to injunct Future Retail Ltd. from proceeding with the transaction with Reliance, including by prosecuting applications before various authorities., The operative portion of the Emergency Arbitration order dated 25 October 2020 directs: (a) the respondents are injuncted from taking any steps in furtherance of the board resolution dated 29 August 2020 relating to the Disputed Transaction, including filing or pursuing any application before any person or regulatory body in India; (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 transferring, disposing, alienating or encumbering Future Retail Ltd.'s retail assets or the shares held in Future Retail Ltd. by the promoters without prior written consent of the claimant; (d) the respondents are injuncted from issuing securities of Future Retail Ltd. or obtaining financing from any restricted person contrary to Section 13.3.1 of the FCPL Shareholders' Agreement; and (e) the orders in (a) to (d) are to take effect immediately and will remain in place until further order from the tribunal when constituted., Key dates and events include: the shareholders' agreement dated 12 August 2019 executed between Future Coupons Pvt. Ltd., Future Retail Ltd. and the promoters; a letter dated 12 August 2018 by Future Retail Ltd. to stock exchanges informing them of the shareholders' agreement; the shareholders' agreement dated 22 August 2019 between Amazon.com NV Investment Holdings LLC, Future Coupons Pvt. Ltd. and the promoters; the share subscription agreement dated 22 August 2019; a letter dated 22 August 2019 by Future Retail Ltd. to the stock exchanges regarding execution of the FCPL shareholders' and subscription agreements; an application dated 23 September 2019 before the Competition Commission of India by Amazon for approval of acquisition of 34,02,713 Class‑A voting equity shares and 63,71,678 Class‑B non‑voting equity shares in Future Coupons Pvt. Ltd.; a letter dated 19 December 2019 by Future Coupons Pvt. Ltd. to Future Retail Ltd. notifying the effective date of the Future Retail shareholders' agreement and the list of restricted persons; several emails in March 2020 from Future Corporate Resources Private Limited informing Amazon of notices from banks and potential defaults; a letter dated 29 August 2020 from Future Retail Ltd. to stock exchanges intimating the outcome of the board meeting approving the proposed amalgamation; default notices dated 3 October 2020 by Amazon to Future Coupons Pvt. Ltd., Future Corporate Resources Private Limited and Defendant No.3; three separate letters dated 3 October 2020 by Amazon to the stock exchanges, SEBI and Future Retail Ltd.; a notice of arbitration dated 5 October 2020 by Amazon invoking emergency arbitration under the Singapore International Arbitration Centre rules and filing an application for emergency interim relief; and the interim order passed by the Emergency Arbitrator dated 25 October 2020., Amazon's petition before the Competition Commission of India states that the proposed combination comprises three transactions: (i) Proposed Transaction I involves the issue of 91,83,754 Class‑A voting equity shares of Future Coupons Pvt. Ltd. to Future Corporate Resources Private Limited; (ii) Proposed Transaction II involves the transfer of 1,36,66,287 shares of Future Coupons Pvt. Ltd. held by Future Corporate Resources Private Limited (representing 2.52 % of the issued, subscribed and paid‑up equity share capital of Future Retail Ltd. on a fully diluted basis) to Future Coupons Pvt. Ltd.; and (iii) Proposed Transaction III involves the acquisition of subscription shares representing 49 % of the total issued, subscribed and paid‑up equity share capital of Future Coupons Pvt. Ltd. by Amazon, by way of a preferential allotment, with the remaining 51 % held by Future Corporate Resources Private Limited. Amazon submitted that Transactions I and II are intra‑group transfers between a parent and its subsidiary and are notifiable under Section 5 of the Competition Act, and that Transaction III benefits from the target exemption because the assets and turnover of Future Coupons Pvt. Ltd. are below the thresholds. Amazon clarified that it is not acquiring control over Future Coupons Pvt. Ltd.; the rights to be acquired are investor protection rights that do not confer control. The rights include nomination of two investor directors while Amazon holds 49 % of the equity, the right to appoint an observer director, consent rights over certain matters listed in Schedules IX and X of the shareholders' agreement, and specific consent requirements under Sections 13 and 14 of the FCPL Shareholders' Agreement., Future Retail Ltd. contends that it is a listed public limited company with over three lakh shareholders and that a private contract entered into by the promoters in their capacity as shareholders cannot bind the company. It relies on the decision in Reliance Natural Resources Limited v. Reliance Industries Limited (2010 (7) SCC 1) rejecting a similar argument. The plaintiff argues that the board resolution dated 29 August 2020 does not violate any provision of its articles of association or any law and was passed after obtaining written consent from Future Coupons Pvt. Ltd. on 29 August 2020. The resolution is therefore not ultra vires. Amazon's claim that the board resolution is void because it contravenes the FCPL articles of association is misconceived, as the board of Future Retail Ltd. cannot be bound by FCPL's articles. Moreover, before the Emergency Arbitrator, Amazon accepted that the board resolution is not illegal, void or contrary to any regulation or statute. Amazon's contention that the Future Retail shareholders' agreement, the FCPL shareholders' agreement and the FCPL share subscription agreement constitute a single integrated bargain is contrary to the provisions of those agreements and to Amazon's own representations before the Competition Commission of India.
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Reliance relies on the decisions reported as (2012) 6 Supreme Court of India 613 Vodafone International Holdings BV vs. Union of India; RNRL vs. RIL (supra); 2000 (3) Maharashtra Law Journal 700 Rolta India Ltd vs. Venire Industries Ltd.; 1959 AC 324 Scottish Co-operative Wholesale Society Ltd vs. Mayer and [2009] EWCA Civ 29 Hawkes vs. Cuddy to contend that the directors of a listed entity have to act in fiduciary duty and not merely follow the direction of promoters, which would destroy the value of public shareholders and other stakeholders., The WhatsApp chats between the parties clearly reveal that Amazon was aware that FRL was engaged in talks to transfer its business to Reliance since June/July 2020, and the representation of Amazon to the authorities that it only came to know of the transaction on 16 September 2020 is false. As a matter of fact, informal discussions were also held between Amazon and Reliance wherein Reliance informed Amazon that it was acquiring the assets of FRL when Amazon did not raise any objection., Since Amazon is unlawfully interfering with the lawful transaction between FRL and Reliance by masquerading the Emergency Arbitrator order as an order under Section 17(2) of the Arbitration and Conciliation Act, 1996, the same amounts to unlawful interference with the transaction and is contrary to the business and economic interests of FRL. Consequently, FRL is entitled to seek an injunction against Amazon on the principles governing the tort of unlawful interference. Reliance also places reliance on the decisions reported as 1983 WLR 778 Merkur Island Shipping Corporation vs. Laughton & Ors.; [1991] 3 WLR 188 Lonhro PLC vs. Fayed & Ors.; and [2007] UKHL 21 OBG Ltd vs. Allan., Though Amazon contends that the tort of unlawful interference is not applicable as FRL has failed to produce the contract entered into between FRL and Reliance, this contention is contrary to its own submissions in the application seeking emergency relief before the Emergency Arbitrator, which notes the alleged breach of the FCPL Shareholders Agreement and FRL Shareholders Agreement on the ground that FRL has invalidly announced a transaction with companies of the MDA Group. Further, the fact that FRL and Reliance are entering into a transaction is noted in the scheme, which is also in the knowledge of Amazon., Learned Senior Counsel for FRL further contends that Clause 15.17 of the FCPL Shareholders Agreement explicitly records that the understanding between the promoters and the investors was that there was no agreement or understanding whatsoever in relation to acquisition of shares or voting rights or exercising control over FRL, and that the company, the promoters and the investors otherwise do not intend to act in concert with each other in any way whatsoever. However, in the teeth of Clause 15.17 Amazon tries to exercise control over the working of FRL. It is further stated that FCPL and, even less, Amazon do not even have the status of a minority shareholder and therefore cannot interfere by exercising control over FRL., Mr. Darius J. Khambata, learned Senior Counsel appearing on behalf of FRL, further contends that the Emergency Arbitrator order is a nullity and Amazon is unlawfully interfering in the transaction by masquerading the Emergency Arbitrator order as a binding order under Section 17 of the Arbitration and Conciliation Act, 1996. Though the legality or illegality on merits of the Emergency Arbitrator order is not an issue in the present suit, the legal status of the order is an issue. FRL is not challenging the legality of the findings in the Emergency Arbitrator order on merits nor seeking a declaration as to the invalidity of the order, but since the Emergency Arbitrator has no legal status, the order is not binding. FRL therefore seeks relief on the basis that the Emergency Arbitrator order is a nullity. Since Amazon claims that the order is valid, the issue must be decided by the Supreme Court of India., The appearance of FRL before the Emergency Arbitrator was subject to its objections as to jurisdiction, and the objection cannot be waived. According to learned Senior Counsel, FRL appeared before the Emergency Arbitrator without prejudice to the objection that an Emergency Arbitrator is not recognized under Part I of the Arbitration and Conciliation Act, 1996, as is evident from the letters of FRL dated 6 October 2010 and 7 October 2020 to the Singapore International Arbitration Centre and the response dated 12 October 2020. Thus Amazon’s contention that FRL waived the objection to the jurisdiction of the Emergency Arbitrator is false and misconceived., Further, since the Emergency Arbitrator lacks legal status under Part I of the Arbitration and Conciliation Act, 1996, the parties by consent could not confer jurisdiction on the Emergency Arbitrator. Despite the fact that an order of an Emergency Arbitrator is not recognized under Part I of the Act, Amazon has represented the Emergency Arbitrator order to be binding on FRL in its letters dated 28 October 2020 and 8 November 2020 addressed to the Securities and Exchange Board of India and the stock exchanges respectively., According to learned Senior Counsel for FRL, the validity of the appointment of the Emergency Arbitrator has been canvassed on behalf of Amazon on five counts: (i) the Emergency Arbitrator is not incompatible with Part I of the Arbitration and Conciliation Act, 1996; (ii) Part I of the Act allows parties to agree to procedural rules and, in the present case, the parties agreed to be governed by the Singapore International Arbitration Centre Rules; (iii) termination of the mandate and substitution of arbitrator is provided under Section 15 of the Act; (iv) the decisions of the Supreme Court of India reported as 2020 Supreme Court of India Online Decision 721 Ashwani Minda and Jay Ushin Ltd. vs. U-Shin Ltd. and 2016 Supreme Court of India Online Decision 5521 Raffles Design International Pvt. Ltd. vs. Educomp Professional Education Ltd. & Ors. recognize emergency arbitration in India; and (v) unless set aside, the interim Emergency Arbitrator order is a decree and not a waste paper., Responding to these propositions canvassed on behalf of Amazon, learned Senior Counsel states that the legal status of an Emergency Arbitrator is an issue in this suit even though the plaintiff is not required to challenge the legality of the order before the Supreme Court of India. In paragraphs 51 to 64 of the plaint, the plaintiff has set out how the appointment of the Emergency Arbitrator is a nullity and lacks jurisdiction. In prayers (b) and (c) in the plaint, the plaintiff has sought prayers claiming lack of jurisdiction of the Emergency Arbitrator. The entire attack of Amazon on FRL’s case is based on the binding nature of the Emergency Arbitrator order. Amazon has misrepresented to the regulatory authorities in its letters claiming the binding nature of the emergency arbitrator award., According to learned Senior Counsel for FRL, arbitration has been invoked by Amazon in terms of Clause 25.2.1 of the FCPL Shareholders Agreement to which FRL is not a signatory; this may be an international commercial arbitration seated in Delhi. However, the arbitration agreement to which FRL is a party contemplates a purely domestic arbitration. This creates a primary conflict between the two arbitration clauses – one being purely domestic and the other an international commercial arbitration seated in Delhi, India. Further, in both the domestic and international commercial arbitration under Part I, an Emergency Arbitrator is barred, as the remedy for seeking interim relief before the arbitral tribunal is constituted is under Section 9 of the Arbitration and Conciliation Act, 1996, from a court. That being the only remedy available, Amazon cannot bypass the said remedy and seek appointment of an Emergency Arbitrator., Under Section 11(1) of the Arbitration and Conciliation Act, 1996, an arbitrator has a degree of permanence. The Act also does not contemplate that for the first six months there would be one arbitrator and then another. Further, Sections 12 and 13 of the Act, which permit a party to challenge the jurisdiction of an arbitrator, provide for the grounds and procedure on which appointment of the arbitrator can be challenged. Section 15 of the Act provides for the manner in which the mandate of an arbitrator can be terminated and another arbitrator substituted. It is contended that the Singapore International Arbitration Centre Rules cannot override the mandatory provisions of Part I of the Act. Referring to Section 2(6) of the Act, it is submitted that the parties have freedom to authorize any persons, including an institution, to determine a certain issue only where Part I leaves the parties free to do so. The said freedom cannot derogate from the mandatory provisions of the Act. Section 17 of the Act specifically provides that during arbitral proceedings, a party may only apply to an arbitral tribunal for interim reliefs and, prior to the constitution of the tribunal, the remedy under Section 9 of the Act is the only remedy available. Further, Section 2(8) of the Act is applicable, subject to the situations where Part I recognizes the parties’ agreement and does not override the provisions of Part I. Thus Amazon’s reliance on Rule 1.1 of the Singapore International Arbitration Centre Rules is of no avail to the extent that the Rules are in derogation of the provisions of Part I of the Act. Moreover, Section 11(2) of the Act merely provides parties with the right to agree on a procedure for appointing the arbitrator or arbitrators. The freedom to determine the procedure of appointment of an arbitrator cannot be read so far as to enable the parties to appoint an Emergency Arbitrator when the concept of Emergency Arbitrator is not contemplated by the Act., Distinguishing the decision relied upon by Amazon reported as 2017 (2) Supreme Court of India 228 Centrotrade Minerals and Metal Inc. vs. Hindustan Copper Limited, it is stated that the Court was dealing with a two‑tier arbitration. Recognition of the two‑tier arbitration is not akin to an emergency arbitration, which is not recognized under the Arbitration and Conciliation Act, 1996; hence, the decision has no applicability to the facts of the present case. Distinguishing the decision relied upon by Amazon reported as 2014 (11) Supreme Court of India 560 Antrix Corporation Limited vs. Devas Multimedia Pvt. Ltd., it is contended that in that decision the party had filed a petition under Section 11 after having nominated an arbitrator pursuant to the ICC Rules; however, in the present case FRL has not appointed any nominee arbitrator. Hence the decisions are of no assistance and do not deal with the concept of an emergency arbitration., Even the decision reported as 2002 (2) Supreme Court of India 572 Narayan Prasad Lohia vs. Nikunj Kumar Lohia, relied upon on behalf of Amazon, has no application to the facts of the present case as in that case two arbitrators were appointed and the Court held that the appointment of two arbitrators would not frustrate Section 10 of the Act because, in the event the two arbitrators arrive at conflicting views, they could appoint a third arbitrator to act as a presiding arbitrator. Reliance of Amazon on the Delhi International Arbitration Centre Rules, the Mumbai Centre of International Arbitration Rules and the Madras High Court Arbitration Centre Rules, which provide for emergency arbitration procedures to contend that emergency arbitration is recognized under the Act, is also misconceived as those Rules cannot override the mandatory provisions of the Act. Further, these Rules have been made flexible so as to apply to foreign‑seated arbitrations as well and were framed in anticipation of the amendment proposed by the 246th Law Commission Report, which sought amendment to Section 2(1)(d) of the Act to include emergency arbitration but was not accepted by Parliament., Reliance of Amazon on the decisions in Raffles (supra) and 2020 Supreme Court of India Online Decision 631 Goodwill Non‑Woven P. Ltd. vs. Xcoal Energy & Resources LLC is also misconceived as the said decisions pertain to foreign‑seated arbitration governed by Part II of the Act, wherein proceedings under Section 9 were filed for de‑novo interim relief before the Indian court despite the foreign emergency award. Since the present arbitration is governed by Part I of the Act, whose definition of arbitral tribunal under Section 2(1)(d) does not contemplate an Emergency Arbitrator, appointment of an Emergency Arbitrator is thus a nullity and the acts of Amazon representing to the regulators amount to tortious interference in the rightful business of FRL. It is therefore contended that, because the concept of Emergency Arbitrator is alien to Part I of the Act, the Emergency Arbitrator order is wholly without jurisdiction and a *coram non judice*. The order being a nullity need not be set aside by a court and must be ignored for lack of legal status. Reliance is placed on the decisions reported as 1990 (1) Supreme Court of India 193 Sushil Kumar Mehta vs. Gobind Ram Bohra, 1991 (3) Supreme Court of India 136 Ajudh Raj & Ors. vs. Moti, Manu/SC/0372/1966 Mohd. Murtiza Khan vs. State of Madhya Pradesh and 1969 (2) Supreme Court of India 883 Sheolal & Ors. vs. Sultan & Ors., The decisions relied upon by Amazon for the proposition that an order has to be challenged to assert *coram non judice* are not applicable to the facts of the present case as, in those cases, there was no inherent lack of jurisdiction to pass the order as there is with the Emergency Arbitrator. Therefore, due to the lack of jurisdiction even in collateral proceedings, this Court can hold that the Emergency Arbitrator has no legal status under Part I of the Arbitration and Conciliation Act, 1996 and thus the Emergency Arbitrator order is a nullity., Mr. Mukul Rohtagi, learned Senior Counsel appearing on behalf of Defendant Nos. 2 to 13, contended that on 5 October 2020 Amazon issued a notice invoking arbitration under Clause 25.2 of the FCPL Shareholders Agreement under the Singapore International Arbitration Centre Rules. The only persons who were parties to the FCPL Shareholders Agreement were Amazon and Defendant Nos. 2 to 13 and not FRL. Before the Emergency Arbitrator, Defendant Nos. 2 to 13 raised the objection that the FCPL Shareholders Agreement was governed by the Arbitration and Conciliation Act, 1996 and that the concept of an Emergency Arbitrator prior to the constitution of an arbitral tribunal is foreign to the Act; hence the Emergency Arbitrator cannot be recognized as *coram judice* for granting any reliefs under the Act. Despite challenging the jurisdiction of the Emergency Arbitrator to grant interim relief, the Emergency Arbitrator passed the order., It is well settled that an arbitral tribunal is constituted either on the basis of agreement between the parties or under Section 11 of the Arbitration and Conciliation Act, 1996. In the present case there was neither an agreement between the parties nor a direction under Section 11 for appointment of the Emergency Arbitrator. Under Section 2(6) read with Section 19(2) of the Act, derogation of the Act is only possible where the Act itself permits the parties to derogate. Further, Section 9 of the Act does not contain phrases such as “subject to any agreement to the contrary” or “unless otherwise agreed by the parties”; thus, the parties cannot derogate from Section 9. The parties cannot by consent confer jurisdiction upon a body not recognized under the Act to pass any interim relief prior to the constitution of the arbitral tribunal. The Singapore International Arbitration Centre Rules are merely procedural and cannot provide substantive jurisdiction to a forum to grant interim reliefs other than what is mandated under Part I of the Act in Sections 9 and 17. The Emergency Arbitrator is a creature of Rule 30.2 of the Singapore International Arbitration Centre Rules, which is foreign to the Act. The seat of arbitration as per the FCPL Shareholders Agreement being New Delhi, any interim relief could have been claimed only before a court defined under Section 2(1)(e) read with Section 9 of the Act. The Act does not allow the parties to agree to rules that create substantive rights inconsistent with Part I. Moreover, the Singapore International Arbitration Centre Rules prohibit a challenge or review of any order passed by the Emergency Arbitrator, which shows that the Emergency Arbitrator’s award is not under Section 17 of the Act. Thus the Emergency Arbitrator lacked inherent jurisdiction under the provisions of the Act., Mr. Vikram Nankani, learned Senior Counsel appearing on behalf of FCPL, contends that FCPL has already granted its consent to FRL for the transaction with Reliance in terms of the FRL Shareholders Agreement, a fact noted in paragraph 29 of the plaint by acknowledging FRL’s letter dated 29 August 2020, which was issued pursuant to the board resolution dated 29 August 2020 of FCPL. Mr. Nankani also sought time to file a statement of truth in support of the letter dated 29 August 2020; the Supreme Court of India declined, stating that it can be filed while completing formal pleadings with the written statements and replications., Dr. Abhishek Manu Singhvi, learned Senior Counsel on behalf of Reliance, contends that the Emergency Arbitrator order is a nullity in law and incapable of enforcement under Part I of the Arbitration and Conciliation Act, 1996. The proceedings before the Emergency Arbitrator are void as they are *coram non judice*. A plain reading of Clause 25 of the FCPL Shareholders Agreement providing for arbitration clearly notes that the substantive law of arbitration is the Arbitration and Conciliation Act, 1996 and that the Singapore International Arbitration Centre Rules merely prescribe the procedure. In case of conflict with Indian substantive law, the provisions of the Act will prevail and apply mutatis mutandis. The seat of arbitration being New Delhi, the arbitration proceedings are governed by Part I of the Act. Under Part I, an interim order can only be passed under Section 9 or Section 17 of the Act. The Emergency Arbitrator, being a temporary creature under the Singapore International Arbitration Centre Rules, is not the arbitral tribunal and has no jurisdiction to pass orders under Section 17., Reiterating the provisions under the Singapore International Arbitration Centre Rules and Section 11 of the Arbitration and Conciliation Act, 1996 relating to the appointment of an arbitral tribunal, Sections 13 to 15 and 32 of the Act relating to the manner in which the mandate of an arbitral tribunal can be terminated, and Sections 14 or 15 for appointment of a substitute arbitrator, it is contended that under Part I there is no scope for appointment of different arbitral tribunals for various stages of arbitral proceedings, such as an Emergency Arbitrator at the initial stage whose mandate automatically ends when the tribunal is constituted., Under Section 17(2) of the Arbitration and Conciliation Act, 1996, an interim order of an arbitral tribunal is enforceable as an order of the court; however, an interim order of an Emergency Arbitrator under the Singapore International Arbitration Centre Rules is temporary in nature and ceases to be binding automatically if the arbitral tribunal is not constituted within 90 days. Further, Rule 12 of Schedule I of the Singapore International Arbitration Centre Rules purports to preclude the parties from appealing against an order of the Emergency Arbitrator, despite the fact that Section 37(2)(b) of the Act confers the statutory right of appeal against an interim order passed by an arbitral tribunal under Section 17. The concept of Emergency Arbitrator is antithetical to Section 9 of the Act. In Raffles (supra) this Court, in paragraph 104, noted that the emergency award passed by an arbitral tribunal cannot be enforced under the Act and the only method for enforcing the same would be to file a suit. Moreover, Clause 25.2.1 of the FCPL Shareholders Agreement specifically provides for arbitration as per the Singapore International Arbitration Centre Rules, as may be modified by the provisions of Indian law. The parties therefore recognized that the Rules cannot override the provisions of Indian law and the Act and were subject thereto., Since Amazon is misrepresenting the legality of the Emergency Arbitrator order, claiming that it binds FRL and thereby causing prejudice not only to FRL but also to Reliance by asking the regulators to deny statutory permissions for the valid and legal transaction between FRL and Reliance, its invalidity can be set up even in collateral proceedings. Reliance places reliance on the decision reported as 1990 (1) Supreme Court of India 193 Sushil Kumar Mehta vs. Gobind Ram Bohra to contend that when a decree passed by a court is a nullity, its invalidity can be set up even at the stage of execution or in collateral proceedings. The single integrated transaction in the FRL Shareholders Agreement, FCPL Shareholders Agreement and FCPL Share Subscription Agreement, as claimed by Amazon, is violative of the Foreign Exchange Management Act, Foreign Direct Investment Regulations and the Securities and Exchange Board of India (Substantial Acquisition of Shares and Takeovers) Regulations, 2011., The UNCITRAL Model Law also does not contain any provision in relation to an Emergency Arbitrator. Since the Arbitration and Conciliation Act, 1996 is based on the UNCITRAL Model Law, it does not contemplate appointment of an Emergency Arbitrator, a position affirmed by the Supreme Court of India in the decision reported as 2004 (3) Supreme Court of India 155 Firm Ashok Traders & Anr. vs. Gurumukh Das Saluja & Ors., Chapter XV of the Companies Act, 2013 read with the Companies (Compromise, Arrangement and Amalgamations) Rules, 2016, the National Company Law Tribunal Rules, 2016 and the Securities and Exchange Board of India (Listing Obligations and Disclosure Requirements) Regulations, 2015 form a complete code governing all aspects of the scheme of arrangement between the company, its members and its creditors., The board of directors of FRL, by resolution dated 29 August 2020, approved the transaction in a properly constituted meeting at which the majority of the directors voted in favour of the proposed transaction. It is therefore prayed that Amazon be injuncted from interfering in the transaction between FRL and Reliance., According to Mr. Gopal Subramanium, learned Senior Counsel appearing on behalf of Amazon, the suit filed by the plaintiff seeking an anti‑arbitration injunction, anti‑suit injunction and injunction with respect to communication to statutory authorities is not maintainable. The arbitration proceedings, having commenced on 5 October 2020 under Part I of the Arbitration and Conciliation Act, 1996 in respect of a valid and subsisting arbitration agreement which has not been challenged, make the reliefs sought barred under Section 5 read with Section 8 of the Act. Further, the relief of an anti‑suit injunction is also barred by Section 41(b) of the Specific Relief Act, 1963. The reliefs sought by FRL to restrain Amazon from addressing communication to statutory authorities, objecting to the transaction and relying on the Emergency Arbitrator order cannot be granted because representations have already been made to the statutory authorities, who have taken cognizance of the arbitration proceedings and the Emergency Arbitrator order and have sought responses from FRL and Amazon. Moreover, the reliefs sought in the interim application under Order XXXIX Rule 1 & 2 of the Civil Procedure Code, seeking a temporary injunction, are identical to the final relief sought in the suit and therefore cannot be granted. The prayer in the application for an intermediary injunction seeking restoration of the status‑quo ante cannot be granted as FRL has not made out any case for grant of extraordinary relief at the interim stage., The present suit is an abuse of the process of the Supreme Court of India because FRL has participated in the arbitration proceedings that commenced on 5 October 2020 and, after appearing before the Emergency Arbitrator, filed various submissions including those raised in the present suit. FRL continues to participate in the arbitration proceedings and has filed a response to Amazon’s notice of arbitration on 21 November 2020. Therefore FRL recognises that the proper forum for raising its objection is the arbitration proceedings., In the present suit, the Emergency Arbitrator order has not been challenged and cannot be challenged. Despite the fact that there is no challenge to the order in the present suit, FRL and Defendant Nos. 2 to 13, during the course of arguments, have endeavoured to show that the order is illegal and hence cannot be acted upon. Without challenging the order, FRL seeks to claim it to be a nullity in the present proceedings. This is impermissible as a collateral challenge cannot be maintained under Indian law., Though FRL has not seriously questioned the Emergency Arbitrator’s findings about the applicability of the group of companies doctrine or the theory of implied consent in these proceedings, FRL continues to argue that it was not a signatory to the arbitration agreement in the FCPL Shareholders Agreement. The issues agitated before the Emergency Arbitrator cannot be re‑agitated in the present proceedings. During the course of arguments neither FRL nor Defendant Nos. 2 to 13 have addressed arguments on the breaches of the FCPL Shareholders Agreement and FRL Shareholders Agreement. Thus, no case is made out for the present action to safeguard the transaction, which is post‑Emergency Arbitrator order, premised on a breach and an after‑thought with the sole motive of a collateral challenge. Therefore, no case of tortious interference is made out., Learned Senior Counsel for Amazon takes serious objection to the filing of the documents dated 29 August 2020 filed by FRL and FCPL on 12 November 2020 before this Court without being accompanied by a statement of truth. This document was not produced before the Emergency Arbitrator and, in this regard, a finding has been returned by the Emergency Arbitrator. Further, the document dated 29 August 2020 is not produced along with the board resolution of either FCPL or FRL which has authorized it to consent to the transaction. Amazon contends that FRL has suppressed material documents. The e‑mail dated 9 April 2020 has only the first spreadsheet, which is also illegible, and the remaining documents have not been filed; they have now been filed by Amazon in its additional compilation at pages 1 to 10. Further, FRL has also not produced the entire chain of correspondence which demonstrates Amazon’s engagement with Biyanis for finding a resolution for FRL., The principle of party autonomy entitles Amazon to seek emergency relief under the Singapore International Arbitration Centre Rules and such choice is enforceable under Section 2(8) of the Arbitration and Conciliation Act, 1996 as the Rules have been incorporated in the arbitration agreement. Reliance is placed on the decision in (2017) 2 Supreme Court of India 228 Centrotrade Minerals v. Hindustan Copper Limited. The Emergency Arbitrator order was passed under Rule 30.2 of the Singapore International Arbitration Centre Rules read with Rule 8, Schedule I to the Rules, which empowers the Emergency Arbitrator to pass an interim order, pending constitution of the arbitral tribunal, to protect and preserve the subject matter of the dispute. Further, Section 2(6) of the Act authorises parties to choose the authority to determine any issue unless Part I expressly disallows such determination. Reliance is placed on the decision in (2014) 11 Supreme Court of India 560 Antrix Corporation Limited v. Devas Multimedia. In terms of Rule 12 of the Singapore International Arbitration Centre Rules, the Emergency Arbitrator order is binding on FRL and can be challenged only in appropriate proceedings. The order is an interim measure passed by an arbitral tribunal under Section 17(1) of the Act and thus enforceable under Section 17(2) of the Act. The order cannot be treated as mere waste paper, especially when parties have agreed that it would be binding on them. Reliance is placed on (1969) 2 Supreme Court of India 244 Satish Kumar v. Surinder Kumar., An Emergency Arbitrator constitutes an arbitral tribunal for the purpose of passing the Emergency Arbitrator order because, firstly, Section 2(1)(d) of the Arbitration and Conciliation Act, 1996 defines an arbitral tribunal to mean a sole arbitrator or a panel of arbitrators.
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Therefore, Emergency Arbitrator is an arbitrator under the Singapore International Arbitration Centre Rules and accordingly under the Arbitration and Conciliation Act, 1996; secondly, an Arbitral Tribunal will comprise an Emergency Arbitrator in terms of Section 2(8), Section 2(1)(d) of the Arbitration and Conciliation Act, 1996 and the Singapore International Arbitration Centre Rules in accordance with the principle of party autonomy; thirdly, under the Singapore International Arbitration Centre Rules, the Emergency Arbitrator occupies the position of and functions as an arbitrator till the Arbitral Tribunal is fully constituted. Rule 1.3 of the Singapore International Arbitration Centre Rules defines an Emergency Arbitrator as an arbitrator appointed in accordance with Paragraph 3 of Schedule I. Besides several other provisions of the Singapore International Arbitration Centre Rules such as Rule 38, Rule 39 and Schedule I, reinforce that an Emergency Arbitrator occupies the position of an arbitrator and functions as an arbitrator. Further there is nothing in the Arbitration and Conciliation Act, 1996 which prohibits, disempowers or nullifies proceedings before an Emergency Arbitrator. Reliance is placed on the decision in (1998) 3 SCC 573 K.K. Modi v. K.N. Modi. Submission of FRL that since an Emergency Arbitrator is not expressly provided under the Arbitration and Conciliation Act, 1996, it must follow that the Arbitration and Conciliation Act, 1996 prohibits emergency arbitration is fallacious., In Centrotrade Minerals (supra) the Supreme Court of India held that merely because the Arbitration and Conciliation Act, 1996 does not expressly recognize the procedure agreed to by the parties, in exercise of the grund norm of party autonomy the Arbitration and Conciliation Act, 1996 does not prohibit such a procedure. It is on this basis that in Centrotrade Minerals the Supreme Court of India upheld a two‑tier arbitration to be valid under the Arbitration and Conciliation Act, 1996 even though the same is not contemplated expressly in the Arbitration and Conciliation Act, 1996. Reliance is also placed on the decision in (2002) 3 SCC 572 Narayan Prasad Lohia v. Nikunj Kumar Lohia., Contention on behalf of the FRL that Section 15 of the Arbitration and Conciliation Act, 1996 implicitly prohibits the appointment of an Emergency Arbitrator is misconceived for the reason Section 15(1)(b) read with Section 16(2) of the Arbitration and Conciliation Act, 1996 provide that the mandate of an arbitrator may terminate by or pursuant to an agreement of the parties and another arbitrator or arbitrators may be appointed. Further the Singapore International Arbitration Centre Rules, inasmuch as they provide for an Emergency Arbitrator to function before an Arbitral Tribunal is fully constituted, represent this agreement of parties under Section 15(1)(b) of the Arbitration and Conciliation Act, 1996. Therefore, the Arbitration and Conciliation Act, 1996 contemplates different arbitrators adjudicating at different stages of the Arbitral Tribunal., FRL's contention that the term Arbitral Tribunal cannot include an Emergency Arbitrator for the reason the same though suggested in the Law Commission's recommendation in its 246th report was not accepted by Parliament is incorrect. The fact that Parliament did not accept the recommendations of the 246th Law Commission report has no bearing on the interpretation of the provision in the Arbitration and Conciliation Act, 1996, as held in the decision in (2020) SCC Online 656 Avitel Post Studioz Limited v. HSBC PI Holdings (Mauritius) Limited and Ors. By mutual agreement parties can agree to a remedy such as an Emergency Arbitrator and since an Emergency Arbitrator constitutes an Arbitral Tribunal, the Supreme Court of India ought to refrain from acting by virtue of Section 9(3) of the Arbitration and Conciliation Act, 1996. Further rules under many arbitration institutions in India i.e. DIAC, MCIA, MHCAC provide for Emergency Arbitrators. FRL's contention that these arbitration centres deal with foreign‑seated arbitration and not arbitration governed under the Arbitration and Conciliation Act, 1996 is incorrect for the reason that the rules of these centres provide that the orders of an Emergency Arbitrator shall be enforceable in the manner as provided in the Arbitration and Conciliation Act, 1996. Therefore, the proceedings before the Emergency Arbitrator were valid under Indian law and the Emergency Arbitrator order constitutes an interim measure under Section 17(1) of the Arbitration and Conciliation Act, 1996 enforceable as an order of the Supreme Court of India under Section 17(2) of the Arbitration and Conciliation Act, 1996., Referring to the decisions in (2016) 9 SCC 44 Anita International v. Tungabadra Sugar Works; (2011) 3 SCC 363 Krishnadevi Malchand v. Bombay Environmental Action Group; (2002) 7 SCC 46 Prakash Narain v. Burmah Shell, learned counsel for Amazon contends that unless an order is set aside, the same is valid and cannot be indirectly challenged in collateral proceedings. Thus the challenge of FRL to the Emergency Arbitrator order in the present suit is not maintainable. Since the Emergency Arbitrator order is an interim measure under Section 17(1) of the Arbitration and Conciliation Act, 1996, it is deemed to be an order of the Supreme Court of India under Section 17(2) of the Arbitration and Conciliation Act, 1996 and can be challenged only in the manner prescribed by law and not otherwise. Contention of FRL that since the Emergency Arbitrator order is without jurisdiction and a coram non judice, hence not required to be challenged as per the requirement of law and order in this respect can be passed by the Supreme Court of India in the present proceedings is misconceived. Reliance is placed on the decision in (1997) 3 SCC 443 Tayabbhai M. Bagasarwalla v. Hind Rubber., It is further contended that the Emergency Arbitrator order has been passed in exercise of jurisdiction by the Emergency Arbitrator under the Singapore International Arbitration Centre Rules and there is a distinction between existence of jurisdiction and any issue relating to exercise of jurisdiction. Jurisdiction is defined as the authority to decide or take cognisance of the matters presented in a formal way for decision. Reliance is placed on the decision in (1919) XXIV CWN 723 Hriday Nath Roy v. Ramachandra Barna and (1962) 2 SCR 747 Hira Lal Patni v. Sri Kali Nath. The Emergency Arbitrator derives the jurisdiction from the arbitration agreement in the FCPL Shareholders Agreement which incorporates the Singapore International Arbitration Centre Rules and under Rule 30.2 of the Singapore International Arbitration Centre Rules, parties are entitled to seek emergency interim relief pursuant to the procedures set out in Schedule I. The arbitration agreement in FCPL Shareholders Agreement having not been challenged in these proceedings, the Emergency Arbitrator was thus clothed with the authority to adjudicate the disputes between the parties (see (2007) 8 SCC 559 Carona v. Parvathy Swaminathan). In terms of Rule 7 and Rule 12 of Schedule I to the Singapore International Arbitration Centre Rules, the Emergency Arbitrator was thus empowered to rule on his own jurisdiction as also provided under Section 16 of the Arbitration and Conciliation Act, 1996., Referring to Gary Born, International Arbitration Agreements and Competence‑competence in Gary Born, International Commercial Arbitration (2nd ed., 2014) and Redfern and Hunter, Agreement to Arbitrate in Redfern and Hunter on International Arbitration, learned senior counsel emphasises the applicability of the principle of competence‑competence and the supremacy of the arbitration agreement which empowers an arbitrator to rule on its own jurisdiction. Reliance is also placed on the decisions reported as (2016) 10 SCC 386 A. Ayyasamy v. A. Paramasivam and (2014) 5 SCC 1 Enercon (India) Limited and Ors. v. Enercon GmbH. Therefore, there is no basis to contend that Emergency Arbitrator lacks inherent jurisdiction. Further, from the relief sought it is evident that FRL's grievance stems from the outcome of the proceeding before the Emergency Arbitrator and not from the proceeding itself and hence no collateral challenge to the Emergency Arbitrator order can be maintained in these proceedings., In response to FRL's argument that it was not a party to the FCPL Shareholders Agreement, reliance is placed on the decisions in (2013) 1 SCC 641 Chloro Controls India (P) Ltd. v. Severn Trent; (2018) 16 SCC 413 Cheran Properties v. Kasturi; (2019) SCC Online SC 995 MTNL v. Canara Bank; and (2017) SCC Online Del 11625 GMR Energy v. Doosan Power to contend that non‑signatories can also be bound as parties to the arbitration agreement., Learned senior counsel for Amazon contends that the agreements i.e. FRL Shareholders Agreement, FCPL Shareholders Agreement and FCPL Share Sale Agreement were negotiated at the same time amongst Amazon, FRL, FCPL and the Biyanis. The future group, including FRL, was represented by a common team of legal counsel. Further, FRL Shareholders Agreement though executed on 12th August 2019 became effective only on 19th December 2019 vide a letter dated 19th December 2019 issued by FCPL to FRL, once FCPL communicated the list of restricted persons under the FRL Shareholders Agreement. These facts were duly considered by the Emergency Arbitrator, who held that besides these facts, the terms of the agreement established cogent commonality, intimate inter‑connectivity and undeniable indivisibility of the contractual agreements. In the present proceedings FRL has not seriously questioned the application of the theory of implied consent and the doctrine of group of companies as applied by the Emergency Arbitrator., Contention on behalf of FRL that reading of the FRL Shareholders Agreement and FCPL Shareholders Agreement as one single transaction would give Amazon control over FRL is incorrect, as the same proceeds on the fundamentally mistaken assumption that FCPL, de‑hors the Biyanis, acquired control of FRL under the FRL Shareholders Agreement. In the FCPL Shareholders Agreement, Biyanis excluding FCPL have been defined as the existing shareholder and thus FCPL is not part of Biyanis for the purpose of the FRL Shareholders Agreement. FCPL on a standalone basis does not have any positive control over FRL under the FRL Shareholders Agreement, as it has only 9.82% shareholding in FRL and has no right to appoint any director on the Board of FRL. FCPL (and hence Amazon) has only negative/protective rights, including protective rights relating to the continued operation of FRL's business. Relying upon the decision in Arcelor Mittal (supra) it is contended that preventing a company from doing what the latter wants to do is by itself not control. Therefore, the consequence of treating FCPL Shareholders Agreement and the FRL Shareholders Agreement as a single integrated transaction can only mean that Amazon steps into the shoes of FCPL and not the Biyanis. Further, as FCPL has no control over FRL, Amazon also cannot have any greater right than FCPL under the, Reliance of learned senior counsel on behalf of FRL on Section 15.17 of the FCPL Shareholders Agreement is misconceived. Section 15.17 of the FCPL Shareholders Agreement has to be read in the light of its caption i.e. FRL Call Option and Associated Matters. The provision is relevant only if and when the call option is exercised pursuant to the FCPL Shareholders Agreement upon a change in law event, which is not the case presently. Therefore, Amazon's rights under the FCPL Shareholders Agreement and FRL Shareholders Agreement are only protective of its investment, rights and economic interest in FCPL and FRL being the direct beneficiary of the money invested by Amazon and such rights do not amount to control., Refuting the contentions on behalf of FRL that Amazon's position before the Emergency Arbitrator was inconsistent with its representation before the Competition Commission of India, it is stated that Amazon's position in the arbitration proceedings and before the Supreme Court of India are consistent with its notification to the Competition Commission of India dated 23rd September 2019. Amazon notified the Competition Commission of India that it had invested into FCPL and a key basis for that investment was the continued operation of FRL's retail business by FRL and the Biyanis. Before the Competition Commission of India, FRL also acknowledged and confirmed this understanding by executing the FRL Shareholders Agreement. The integrated nature of the understanding amongst Amazon, FCPL, the Biyanis and FRL was thus set out clearly in the representation to the Competition Commission of India., It is further contended that the FRL Shareholders Agreement, FCPL Shareholders Agreement and FCPL Share Sale Agreement constituting a single, integrated transaction do not make the agreement illegal being in violation of the Foreign Exchange laws. Amazon does not control FRL. FRL forms a part of the future group of companies. Defendant No.3 and No.8 herein are the directors on the Board of FRL; Defendant No.3 being the Executive Chairman and Defendant No.8 being the Managing Director of FRL. Thus, they are the persons entrusted with substantial power of management of the affairs of the company, as defined under Section 2(54) of the Companies Act, 2013. At the time of entering into the FRL Shareholders Agreement and FCPL Shareholders Agreement, Defendant No.3 to No.13 (excluding FCPL) held 47.2% shares of FRL (which translate into 43.58% of FRL shares on a fully diluted basis). Thus Defendant No.3 to No.13 collectively (excluding FCPL) are the single largest shareholders of FRL with fragmented public shareholding and are in de‑facto control of FRL., Further Amazon's investment in FCPL does not violate the Foreign Exchange laws. As per the FEMA (FDI) Rules, foreign investment up to 51% under the government route is permitted with entities engaged in multi‑brand retail trading, subject to other attendant conditions prescribed in the FEMA FDI Rules. Further, under paragraph 15.1, Schedule I to the FEMA FDI Rules, foreign investment up to 100% is permitted under the automatic route in FCPL, which is engaged in cash‑and‑carry wholesale trading/wholesale trading., It is further contended that under Rule 23(1) of the FEMA FDI Rules, an Indian entity will be considered to have received indirect foreign investment only if the investment flows from an entity which is not Indian owned and controlled. In the present case FRL received investment from FCPL which is an Indian owned and controlled entity. Amazon neither owns nor controls FCPL in terms of the explanation to Rule 23 of the FEMA FDI Rules which defines ownership. FCPL is owned by the Biyanis and not Amazon. Further, the explanation to Rule 23 of the FEMA FDI Rules defines control to mean the right to appoint a majority of directors or to control the management or policy decision. Amazon does not have the right to appoint a majority of directors of FCPL and the rights granted to Amazon under the FCPL Shareholders Agreement are merely protective rights that do not relate to the day‑to‑day management and operation of FCPL or FRL. The illustration in the FDI Policy, 2017 clearly establishes that there will be no indirect foreign investment in a downstream entity if the upper‑tier entity is owned and controlled by resident Indian citizens. FCPL is an Indian owned and controlled entity and any investment received by FRL from FCPL does not trigger any of the sectoral conditions set out in the FEMA FDI Rules., Reliance is placed on the decision in (2017) SCC Online Del 7810 Cruz City v. Unitech Limited wherein the Supreme Court of India passed adverse observations on the attempt of parties to wriggle out of contractual obligations by citing alleged breaches of foreign exchange laws., It is also contended that in a case of tortious interference with contract, a party must show that there was a lawful contract and the other party had no lawful justification to interfere with such a contract (see (1990) SCC Online Cal 55 Balailal Mukherjee v. Sea Traders)., Amazon having demonstrated before the Emergency Arbitrator and before the Supreme Court of India that the transaction is in egregious breach of the FRL Shareholders Agreement and FCPL Shareholders Agreement, no case for grant of interim injunction as prayed for is made out. Consequently, the application be dismissed., On the arguments addressed by the parties, the following issues arise for consideration before the Supreme Court of India: I. Whether the present suit is prima facie maintainable? II. Whether the Emergency Arbitrator lacks legal status under Part I of the Arbitration and Conciliation Act, 1996 and thus is coram non judice? III. Whether the Resolution dated 29th August 2020 of FRL is void or contrary to any statutory provision? IV. Whether by conflation of the FRL Shareholders Agreement, FCPL Shareholders Agreement and FCPL Share Sale Agreement, Amazon seeks to exercise 'Control' on FRL which is forbidden under the FEMA FDI Rules? V. Whether prima facie a case for tortious interference is made out by FRL? VI. Whether FRL is entitled to an interim injunction? Whether the present suit is prima facie maintainable., Objections of Amazon to the maintainability of the present suit confined to the issues raised in the present application are: firstly, that the arbitration proceedings having already commenced on 5th October 2020, the present suit is an abuse of the process of the Supreme Court of India; secondly, there can be no collateral challenge to the Emergency Arbitrator order. It is also stated that all the issues urged before the Supreme Court of India having already been argued before the Emergency Arbitrator, the present suit is not maintainable. Learned senior counsel for Amazon relies upon the decisions reported as 2002 (7) SCC 46 Prakash Narain v. Burmah Shell, 2011 (3) SCC 363 Krishnadevi Malchand v. Bombay Environmental Action Group, and 2016 (9) SCC 44 Anita International v. Tungabadra Sugar Works., According to Mr. Gopal Subramanium, learned senior counsel for Amazon, the Emergency Arbitrator order has not been challenged before the Supreme Court of India on merits and cannot be challenged in the present suit. Further, validity of the Emergency Arbitrator order can only be challenged as per the procedure prescribed under the Singapore International Arbitration Centre Rules or Part I of the Arbitration and Conciliation Act, 1996. It is stated that the plea of FRL seeking to discard the Emergency Arbitrator order on the basis of a self‑styled judgment declaring it to be a nullity in the present proceedings is impermissible, as a collateral challenge cannot be manifested under Indian law., In response, pleas of FRL are that the Emergency Arbitrator order is not in challenge on merits before the Supreme Court of India and only the legal status of the Emergency Arbitrator and the consequential Emergency Arbitrator order on that ground alone is an issue before the Supreme Court of India. Even if the present suit does not seek a declaration as to the invalidity of the Emergency Arbitrator order on merits, the Supreme Court of India has jurisdiction to entertain the plea of FRL challenging the legal status of the Emergency Arbitrator and the same being invalid, the use of the Emergency Arbitrator order by Amazon before the statutory authorities and the regulators is illegal., Mr. Darius J. Khambata, learned senior counsel appearing on behalf of FRL contends that since Amazon is using and relying upon the Emergency Arbitrator order, FRL can maintain a challenge to the jurisdiction and validity of the Emergency Arbitrator in the present suit. In this regard he relies upon the decisions reported as 1990 (1) SCC 193 Sushil Kumar Mehta v. Gobind Ram Bohra, 1991 (3) SCC 136 Ajudh Raj & Ors. v. Moti and MANU/SC/0372/1966 Mohd. Murtiza Khan v. State of M.P., FRL claims that the acts of Amazon in interfering with the rights of FRL (not a signatory to the FCPL Shareholders Agreement) and to other third party i.e. Reliance, with performance of their obligations under the \transaction\ is illegal, amounting to tortious interference in lawful acts of FRL and Reliance. The three grounds urged by FRL to support its plea of tortious interference by Amazon are: firstly, that the Emergency Arbitrator order on the strength of which Amazon seeks to obstruct the approval of the transaction before the statutory authorities/regulators is invalid as the Emergency Arbitrator is a coram non judice; secondly, Amazon is illegally claiming the Resolution dated 29th August 2020 of FRL as void and contrary to the statutory provisions; and thirdly, by conflation of the FRL Shareholders Agreement, FCPL Shareholders Agreement and FCPL Share Sale Agreement, Amazon seeks to exercise 'control' over FRL which is forbidden under the, Section 9 of the Code of Civil Procedure provides as follows: \9. Courts to try all civil suits unless barred. The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is neither expressly nor impliedly barred.\, Supreme Court in 1995 Supp (4) SCC 286 Most Rev. P.M.A. Metro Politan v. Moran Mar Marthoma, noting the basic principle of law that every right has a remedy and every civil suit is cognizable unless it is barred, held: \28. One of the basic principles of law is that every right has a remedy. Ubi jus ibi remedium is the well‑known maxim. Every civil suit is cognizable unless it is barred, there is an inherent right in every person to bring a suit of a civil nature and unless the suit is barred by statute one may, at one's peril, bring a suit of one's choice. It is no answer to a suit, howsoever frivolous the claim, that the law confers no such right to sue.\, Reading of Section 9 of the Code of Civil Procedure makes it clear that only where the jurisdiction of the civil court is expressly or impliedly barred, the civil court will have no jurisdiction. In the present case FRL is asserting its rights to proceed with the transaction with Reliance and is aggrieved by the acts of Amazon in interfering with the said transaction, amounting to tortious interference. Therefore, the cause of action in the present suit pleaded by FRL being the alleged tortious interference in its future course of action in entering into the transaction with Reliance, whereas the cause of action before the Emergency Arbitrator being the alleged breach of the FCPL Shareholders Agreement and FRL Shareholders Agreement as pleaded by Amazon against FRL, the present suit is based on a distinct cause of action and thus maintainable., Plea of learned senior counsel on behalf of Amazon that since all these pleas were urged before the Emergency Arbitrator and thus cannot be re‑agitated in this suit is also flawed for the reason that factual foundations being same for different causes of action, overlap of factual and legal issues may occur; however, the same will not impact the maintainability of the suit., Further the present civil suit is also not barred due to the invocation of Emergency Arbitration by Amazon. Maintainability of the suit is determined on the basis of cause of action. Cause of action for determination before the Emergency Arbitrator was based on the claim of Amazon in respect of the breach of two agreements i.e. FCPL Shareholders Agreement and FRL Shareholders Agreement and a relief consequential to the breach; however, the cause of action in the present suit by FRL is based on the alleged interference of Amazon in the \transaction\ which is essential for the survival of FRL and that the same amounts to tortious interference entailing a relief of injunction. Further, merely, In the present suit, seeking the relief against tortious interference by Amazon, one of the grounds urged by FRL is the invalidity of the Emergency Arbitrator amounting to use of 'unlawful means' in its representations to the authorities. Therefore, FRL in these proceedings is entitled to challenge the legal status of the Emergency Arbitrator to the extent required for making out the ingredients of 'unlawful means'., The issue in the present suit is not the violation of the Emergency Arbitrator order or whether the Emergency Arbitrator order is binding on FRL or not, but whether the Supreme Court of India can consider the legal status of the Emergency Arbitrator or whether the same can be decided only in proceedings as envisaged under Part I of the Arbitration and Conciliation Act, 1996., Supreme Court in the decision reported as AIR 1962 SC 199 Hira Lal Patni v. Sri Kali Nath held that the validity of a decree can be challenged in execution proceedings on the ground that the Court which passed the decree was lacking in inherent jurisdiction, in the sense that it could not have seisin of the case because the subject matter was wholly foreign to its jurisdiction or that the defendant was dead at the time the suit had been instituted or decree passed, or some such other ground which could have the effect of rendering the Court entirely lacking in jurisdiction with respect to the subject matter of the suit or over the parties to it. Therefore, in the case of inherent lack of jurisdiction in a Court or an authority, the same can be challenged even in collateral proceedings., In a Full Bench reference, the Calcutta High Court in XXIV The Calcutta Weekly Notes 723 Hriday Nath Roy & Ors. v. Ram Chandra Barna Sarma & Ors., noting the distinction between existence of jurisdiction and exercise of jurisdiction, held that the authority to decide a cause at all and not the decision rendered therein is what makes up jurisdiction; and when there is jurisdiction of the person and subject matter, the decision of all other questions arising in the case is but an exercise of that jurisdiction., Supreme Court in Sushil Kumar Mehta (supra) held that normally a decree passed by a Court of competent jurisdiction, after adjudication on merits of the rights of the parties, operates as res‑judicata in a subsequent suit or proceedings and binds the parties or the persons claiming through them and its validity should be assailed only in an appeal or revision as the case may be. It was further held that however, a decree which is passed by a Court without jurisdiction over the subject matter or on other grounds which go to the root of its exercise of jurisdiction/lacks inherent jurisdiction is a coram non judice. A decree passed by such a Court is a nullity and is non est. Its invalidity can be set up whenever it is sought to be enforced or is acted upon as a foundation for a right, even at the stage of execution or in collateral proceedings., In Krishna Devi Malchand (supra) relied upon by learned counsel for Amazon, Supreme Court noted the settled legal position that even if an order is void, it requires to be so declared by a competent forum and it is not permissible for any person to ignore the same merely because in his opinion the order is void. Supreme Court in the said decision was not dealing with the issue of the competence of a Court to decide the inherent lack of jurisdiction of the forum which passed the order in collateral proceedings. Thus the said decision has no application to the facts of the present case., Challenge of FRL to the Emergency Arbitrator order is not on merits and no declaration for the Emergency Arbitrator order being invalid or illegal on merits is sought from the Supreme Court of India. The case of FRL is that since Amazon is trying to enforce and act upon the Emergency Arbitrator order before the statutory authority/regulators and as the Emergency Arbitrator is a coram non judice, the Supreme Court of India can go into the validity of the same to the extent asserted in the present suit. In the present suit, the cause of action pleaded by FRL is the tortious interference by Amazon in its lawful transaction and to determine the ingredients of the said cause of action, i.e., whether use of 'unlawful means' is being resorted to by Amazon, the Supreme Court of India is required to return a finding., In view of the discussion aforesaid, the Supreme Court of India is of the considered opinion that prima facie the present suit cannot be held to be not maintainable on the two grounds urged by Amazon, that is, that the Emergency Arbitrator order cannot be challenged in the present proceedings and, secondly, that the grounds urged by FRL before the Supreme Court of India have already been urged and considered by the Emergency Arbitrator., Claim of FRL in the present suit is that the Emergency Arbitrator order is wholly without jurisdiction and a nullity as the Emergency Arbitrator lacked legal status under Part I of the Arbitration and Conciliation Act, 1996 and the parties even by consent could not have conferred jurisdiction on the Emergency Arbitrator being a coram non judice., It is made clear at the outset that the Supreme Court of India is examining only the issue of the legal status of an Emergency Arbitrator, i.e., whether the same was permissible in terms of the FCPL Shareholders Agreement and Part I of the Arbitration and Conciliation Act, 1996 and not in conflict thereto. The Supreme Court of India is not going into the legality on merits of the Emergency Arbitrator order because the same is not under challenge before the Supreme Court of India., Relevant clause providing for arbitration in the FCPL Shareholders Agreement under which Amazon has invoked arbitration is Clause 25 which reads as follows: 25.1. Governing Law: This Agreement shall be governed by and construed in accordance with the laws of India. Subject to the provisions of Section 25.2 (Dispute Resolution), the courts at New Delhi, India shall have exclusive jurisdiction over any matters or dispute (hereinafter defined) relating or arising out of this Agreement. 25.2. Dispute Resolution 25.2.1. Arbitration. Any dispute, controversy, claim or disagreement of any kind whatsoever between or among the parties in connection with or arising out of this Agreement or the breach, termination or invalidity thereof (hereinafter referred to as a dispute), failing amicable resolution through negotiations, shall be referred to and finally resolved by arbitration irrespective of the amount in dispute or whether such dispute would otherwise be considered justifiable or ripe for resolution by any court.
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The Parties agree that they shall attempt to resolve through good faith consultation any such dispute between any of the Parties, and such consultation shall begin promptly after a Party has delivered to another Party a written request for such consultation. In the event the dispute is not resolved by means of negotiations within a period of thirty days or such different period mutually agreed between the parties, the dispute shall be referred to and finally resolved by arbitration in accordance with the arbitration rules of the Singapore International Arbitration Centre (SIAC), and such rules (the Rules) as may be modified by the provisions of this Section 25 (Governing Law and Dispute Resolution). This Agreement and the rights and obligations of the parties shall remain in full force and effect pending the award in such arbitration proceeding, which award, if appropriate, shall determine whether and when any termination shall become effective., The seat and venue of the arbitration shall be New Delhi unless otherwise agreed between the Parties to the dispute, and the arbitration shall be conducted under and in accordance with this Section 25 (Governing Law and Dispute Resolution). This choice of jurisdiction and venue shall not prevent either Party from seeking injunctive relief in any appropriate jurisdiction., FCPL and Amazon agreed that the agreement shall be governed by and construed in accordance with the laws of India and, subject to the provisions of Clause 25.2, the Courts of New Delhi, India shall have exclusive jurisdiction over any matters or disputes relating to or arising out of the agreement. Further, any dispute, controversy or claim between the parties arising out of the agreement or the breach, termination or invalidity thereof, failing amicable resolution through negotiations, shall be resolved through arbitration. The parties further mutually agreed that the dispute shall be referred to and finally resolved by arbitration in accordance with the Arbitration Rules of the Singapore International Arbitration Centre (SIAC) and such Rules as may be modified by the provisions of Clause 25. It is thus agreed that although the law of contract and the law of the arbitration agreement are Indian law with exclusive jurisdiction of the Courts of New Delhi, the arbitration will be conducted and governed by the Rules of SIAC as modified by the provisions of Clause 25 of the Shareholders Agreement. Therefore, the arbitration between FCPL and Amazon is an International Commercial Arbitration seated in New Delhi, India and governed by Part I of the Arbitration and Conciliation Act, but conducted in accordance with SIAC Rules., The contention on behalf of FRL is that an Emergency Arbitrator is outside the scope of Part I of the Arbitration and Conciliation Act, which provides for a remedy for seeking interim relief prior to the constitution of the arbitral tribunal, before a Court under Section 9 of the Arbitration and Conciliation Act; therefore, the Emergency Arbitrator order is without jurisdiction and invalid. However, the contention on behalf of Amazon is that, since the parties under the FCPL Shareholders Agreement voluntarily chose the Arbitration Rules of SIAC as the governing law of dispute resolution and the SIAC Rules provide for the appointment of an Emergency Arbitrator and for seeking interim relief thereunder, there is no lack of jurisdiction in the Emergency Arbitrator, and thus the plea of FRL is fundamentally flawed., The provisions of the Arbitration and Conciliation Act that have been referred to by the parties and are relevant to the present case are Sections 2(1)(d), 2(2), 2(6), 2(8), 9(1)(ii), 9(2) & (3), 17(1)(ii) and 17(2), which read as follows: Section 2 – Definitions. (1) In this Part, unless the context otherwise requires, (d) ‘arbitral tribunal’ means a sole arbitrator or a panel of arbitrators. (2) This Part shall apply where the place of arbitration is in India, subject to an agreement to the contrary, the provisions of Sections 9, 27 and clause (a) of sub‑section (1) and sub‑section (3) of Section 37 shall also apply to international commercial arbitration, even if the place of arbitration is outside India, and an arbitral award made or to be made in such place is enforceable and recognised under the provisions of Part II of this Act. (6) 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. (8) 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. (9) Interim measures, etc., by Court. (1) A party may, before or during arbitral proceedings or at any time after the making of the arbitral award but before it is enforced in accordance with Section 36, apply to a court for an interim measure of protection in respect of any of the following matters: (a) the preservation, interim custody or sale of any goods which are the subject‑matter of the arbitration agreement; (b) securing the amount in dispute in the arbitration; (c) the detention, preservation or inspection of any property or thing which is the subject matter of the dispute in arbitration, and authorising any person to enter upon any land or building in the possession of any party, or authorising any samples to be taken, any observation to be made, or any experiment to be tried, as may be necessary or expedient for obtaining full information or evidence; (d) interim injunction or the appointment of a receiver; (e) any other interim measure of protection as may appear to the court to be just and convenient. The court shall have the same power for making orders as it has for any proceedings before it. (2) Where, before the commencement of the arbitral proceedings, a court passes an order for any interim measure of protection under sub‑section (1), the arbitral proceedings shall be commenced within ninety days from the date of such order or within such further time as the court may determine. (3) Once the arbitral tribunal has been constituted, the court shall not entertain an application under sub‑section (1) unless the court finds that circumstances exist which may render the remedy provided under Section 17 ineffective. (17) Interim measures ordered by arbitral tribunal. (1) A party may, during the arbitral proceedings, apply to the arbitral tribunal for an interim measure of protection in respect of any of the following matters: (a) the preservation, interim custody or sale of any goods which are the subject‑matter of the arbitration agreement; (b) securing the amount in dispute in the arbitration; (c) the detention, preservation or inspection of any property or thing which is the subject matter of the dispute in arbitration, and authorising any person to enter upon any land or building in the possession of any party, or authorising any samples to be taken, any observation to be made, or any experiment to be tried, as may be necessary or expedient for obtaining full information or evidence; (d) interim injunction or the appointment of a receiver; (e) any other interim measure of protection as may appear to the arbitral tribunal to be just and convenient. The arbitral tribunal shall have the same power for making orders as the court has for any proceedings before it. (2) 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 court for all purposes and shall be enforceable under the Code of Civil Procedure, 1908, in the same manner as if it were an order of the court., The relevant provisions of the Singapore International Arbitration Centre (SIAC) Rules and the Schedule thereunder, including provisions for Emergency Arbitration, are as follows: 1. Scope of Application and Interpretation. 1.1 Where the parties have agreed to refer their disputes to SIAC for arbitration or to arbitration in accordance with the SIAC Rules, the parties shall be deemed to have agreed that the arbitration shall be conducted and administered by SIAC in accordance with these Rules. 1.3 In these Rules, ‘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; ‘Rules’ means the Arbitration Rules of the Singapore International Arbitration Centre (6th Edition, 1 August); ‘SIAC’ means the Singapore International Arbitration Centre; and ‘Tribunal’ includes a sole arbitrator or all the arbitrators where more than one arbitrator is appointed. 30. Interim and Emergency Interim Relief. 30.1 The Tribunal may, at the request of a party, issue an order or an award granting an injunction or any other interim relief it deems appropriate. The Tribunal may order the party requesting interim relief to provide appropriate security in connection with the relief sought. 30.2 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. 30.3 A request for interim relief made by a party to a judicial authority prior to the constitution of the Tribunal, or in exceptional circumstances thereafter, is not incompatible with these Rules. Emergency Arbitrator. 1. A party that wishes to seek emergency interim relief 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 and send a copy of the application to all other parties. The application shall include: (a) the nature of the relief sought; (b) the reasons why the party is entitled to such relief; and (c) a statement certifying that all other parties have been provided with a copy of the application or, if not, an explanation of the steps taken in good faith to provide a copy or notification to all other parties. 6. An Emergency Arbitrator may not act as an arbitrator in any future arbitration relating to the dispute unless otherwise agreed by the parties. 8. The Emergency Arbitrator shall have the power to order or award any interim relief that he deems necessary, including preliminary orders that may be made pending any hearing, telephone or videoconference or written submissions by the parties. The Emergency Arbitrator shall give summary reasons for his decision in writing and may modify or vacate the preliminary order, the interim order or award for good cause. 11. Any interim order or award by the Emergency Arbitrator may be conditioned on the party seeking such relief providing appropriate security. 12. The parties agree that an order or award by an Emergency Arbitrator pursuant to Schedule 1 shall be binding on the parties from the date it is made, and they undertake to carry out the interim order or award immediately and without delay. The parties also irrevocably waive their rights to any form of appeal, review or recourse to any State court or other judicial authority with respect to such award, insofar as such waiver may be validly made., The Courts of India have long recognized that in an International Commercial Arbitration there are three sets of law that may apply: the proper law of the contract; the proper law of the arbitration agreement (lex arbitri); and the proper law of the conduct of arbitration (lex fori or curial law)., The Supreme Court, in the decision reported as 1992 (3) SCC 551 National Thermal Power Corporation v. Singer Company & Ors., dealt with the consequences of parties having chosen a different governing law and procedural law in an International Commercial Arbitration under the Arbitration Act of 1940. It held that the proper law of arbitration (i.e., the substantive law governing arbitration) determines the validity, effect and interpretation of the arbitration agreement, and the arbitration proceedings are conducted, in the absence of any agreement to the contrary, in accordance with the law of the country in which the arbitration is held. If the parties have specifically chosen the law governing the conduct and procedure of arbitration, the arbitration proceedings will be conducted in accordance with that law so long as it is not contrary to the public policy or mandatory requirements of the law of the country in which the arbitration is held. If no such choice has been made by the parties, expressly or by necessary implication, the procedural aspect of the conduct of arbitration will be determined by the law of the place or seat of arbitration. Where the parties have stipulated that the arbitration will be conducted in accordance with the ICC Rules, those rules, being largely self‑contained and constituting a contractual code of procedure, will govern the conduct of the arbitration except to the extent they conflict with the mandatory requirements of the proper law of arbitration or the procedural law of the seat of arbitration. Accordingly, the appropriate courts of the seat of arbitration, which in the present case are the competent English courts, will have jurisdiction over procedural matters concerning the conduct of arbitration., The overriding principle is that the courts of the country whose substantive laws govern the arbitration agreement are the competent courts for all matters arising under the arbitration agreement, and the jurisdiction exercised by the courts of the seat of arbitration is merely concurrent, not exclusive, and strictly limited to matters of procedure. All other matters concerning the arbitration agreement fall within the exclusive competence of the courts of the country whose laws govern the arbitration agreement. In the present case, the proper law of the contract is expressly stipulated to be the laws in force in India, and the exclusive jurisdiction of the courts in Delhi over all matters arising under the contract has been specifically accepted. The parties have not chosen, expressly or by implication, a law different from Indian law for the agreement contained in the arbitration clause. Therefore, the proper law governing the arbitration agreement is the law in force in India, and the competent courts of India must necessarily have jurisdiction over all matters concerning arbitration., The Supreme Court in NTPC v. Singer held that where the parties have not chosen a procedural law, the procedure for conduct of arbitration is determined by the law of the seat of arbitration. However, if the parties have expressly chosen the Rules or procedure to be applicable to the conduct of arbitration, those Rules will apply provided they are not in conflict with the public policy of India or the mandatory requirements of the law of the country in which the arbitration is seated. Accordingly, the SIAC Rules will apply to the arbitration conducted under Clause 25 of the FCPL Shareholders Agreement to the extent they are not contrary to (i) the public policy of India and (ii) the mandatory requirements of the Arbitration and Conciliation Act., In the decision reported as 1998 (1) SCC 305 Sumitomo Heavy Industries Ltd. v. ONGC Ltd. & Ors., the Supreme Court defined the area of operation of curial law, concluding that (i) in the absence of an expressed agreement regarding the choice of curial law, the curial law is the law of the place of arbitration, i.e., the country most closely connected with the proceedings; (ii) the parties may choose a curial law different from the law governing the arbitration agreement; and (iii) when the law governing the arbitration agreement and the curial law are different, the court will first examine the arbitration agreement to determine whether the dispute is arbitrable, then look to the curial law to determine how the reference should be conducted, and finally return to the first law to give effect to the resulting award. The Court observed that an arbitration agreement creates obligations that are a separate contract, distinct from the substantive agreement, capable of surviving its termination and subject to termination by express or implied consent, repudiation or frustration. The curial law governs the manner in which the parties and the arbitrator must conduct the reference of a particular dispute, and may be chosen by the parties provided it is not repugnant to the mandatory procedural requirements of the seat of arbitration., In light of the law settled by the Supreme Court in Singer v. NTPC and Sumitomo, while it is permissible for the parties to choose a different procedural law, the issue to be considered is whether the provisions of Emergency Arbitration under such procedural law (in this case the SIAC Rules) are in any manner contrary to, or repugnant to, the public policy of India or to the mandatory requirements of the procedural law under the Arbitration and Conciliation Act., It is now well settled that party autonomy is the backbone of arbitration. The courts in India have given due importance to the concept of party autonomy and have given full effect to the choice of the parties with respect to all three laws involved in an arbitration agreement, subject to the public policy of India and the mandatory provisions of the Arbitration and Conciliation Act. The Supreme Court, in Centrotrade Minerals & Metal Inc. v. Hindustan Copper Ltd., (2017) 2 SCC 228, reiterated that party autonomy is virtually the backbone of arbitrations. In Bharat Aluminium Co. v. Kaiser Aluminium Technical Services Inc., (2016) 4 SCC 126, the Court observed that party autonomy allows the parties to agree on the application of three different laws governing their entire contract: (1) the proper law of the contract; (2) the proper law of the arbitration agreement; and (3) the proper law of the conduct of arbitration, known as curial law. The interplay and application of these different laws to an arbitration were further explained by the Court in Sumitomo Heavy Industries Ltd. v. ONGC Ltd.
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SCC 305] which is one of the earliest decisions in that direction and which has been consistently followed in all the subsequent decisions including the recent Reliance Industries Ltd. v. Union of India (Reliance Industries Ltd. v. Union of India, (2014) 7 SCC 603 : (2014) 3 SCC (Civ) 737). (Emphasis supplied), In Centrotrade (supra), a three judge bench of the Supreme Court of India was called upon to test the legality of a double‑tier arbitration agreement. The parties had agreed that if either of them is dissatisfied with the domestic award rendered in India, they would have the right to appeal in a second arbitration seated in London. The Supreme Court of India upheld the validity of the double‑tier arbitration agreement between the parties. Dealing with the issue of public policy of India, the Supreme Court of India held that there is nothing in the Arbitration and Conciliation Act, 1996 that prohibits the contracting parties from agreeing upon a second instance or the appellate arbitration‑either explicitly or implicitly. No such prohibition or mandate can be read into the Arbitration and Conciliation Act, 1996 except by an unreasonable and awkward misconstruction and by straining its language to a vanishing point. The Court further noted that despite granting finality to the domestic award as per the Arbitration and Conciliation Act, 1996, the parties deliberately and consciously chose to agree upon an appellate arbitration, and that one party cannot wriggle out of solemn commitment made by it voluntarily., For the present we are concerned only with the fundamental or public policy of India. Even assuming the broad delineation of the fundamental policy of India as stated in Associate Builders (Associate Builders v. DDA, (2015) 3 SCC 49 : (2015) 2 SCC (Civ) 204) we do not find anything fundamentally objectionable in the parties preferring and accepting the two‑tier arbitration system. The parties to the contract have not bypassed any mandatory provision of the Arbitration and Conciliation Act, 1996 and were aware, or at least ought to have been aware, that they could have agreed upon the finality of an award given by the arbitration panel of the Indian Council of Arbitration in accordance with the Rules of Arbitration of the Indian Council of Arbitration. Yet they voluntarily and deliberately chose to agree upon a second or appellate arbitration in London, United Kingdom in accordance with the Rules of Conciliation and Arbitration of the International Chamber of Commerce. There is nothing in the Arbitration and Conciliation Act, 1996 that prohibits the contracting parties from agreeing upon a second instance or appellate arbitration either explicitly or implicitly. No such prohibition or mandate can be read into the Arbitration and Conciliation Act, 1996 except by an unreasonable and awkward misconstruction and by straining its language to a vanishing point. We are not concerned with the reason why the parties (including HCL) agreed to a second instance arbitration; the fact is that they did and are bound by the agreement entered into by them. HCL cannot wriggle out of a solemn commitment made by it voluntarily, deliberately and with eyes wide open. (Emphasis supplied), In the present case, the parties have expressly chosen the SIAC Rules as the curial law governing the conduct of arbitration proceedings. The said Rules are self‑sufficient to govern the proceedings under arbitration at every stage. The Supreme Court of India would uphold the express choice of the parties subject to the public policy of India and the mandatory provisions of the Arbitration and Conciliation Act, 1996. As observed by the Supreme Court of India in NTPC v. Singer (supra), it would be unlikely for the Supreme Court of India to interfere with such arbitral proceedings except in cases which shock the judicial conscience., Rule 30 of the SIAC Rules deals with Interim and Emergency Relief. Rule 30.3 in clear terms provides that the parties to the arbitration are also entitled to apply to a judicial authority for grant of interim relief, and that such request made to a judicial authority for grant of interim relief shall not be incompatible with the SIAC Rules. Therefore, the SIAC Rules themselves recognize and uphold the right of a party to avail interim relief under Section 9 of the Arbitration and Conciliation Act, 1996. The SIAC Rules, however, provide an option to the aggrieved party to either approach the emergency arbitrator for interim relief, or to approach a judicial authority for the same, prior to the constitution of the Tribunal. In such circumstances, the Supreme Court of India finds that the SIAC Rules do not take away the substantive right of the parties to approach the Courts in India for interim relief., Where the parties exercising autonomy expressly choose different procedural rules for conduct of arbitration, they are assumed to be aware of the provisions of such rules, including the procedure for obtaining interim relief, and the fact that such rules provide for emergency arbitration by appointment of an emergency arbitrator. In the present case, the parties had with open eyes left it for themselves to choose between availing interim relief from the emergency arbitrator on the one hand, or the Courts under Section 9 of the Arbitration and Conciliation Act, 1996 on the other hand. Thus, Amazon has exercised its choice of the forum for interim relief as per the arbitration agreement between the parties. Nothing in the Arbitration and Conciliation Act, 1996 prohibits the parties from doing so., The Indian law of arbitration allows the parties to choose a procedural law different from the proper law, and the Supreme Court of India finds that there is nothing in the Arbitration and Conciliation Act, 1996 that prohibits the contracting parties from obtaining emergency relief from an emergency arbitrator. An arbitrator’s authority to act is implied from the agreement to arbitrate itself, and the same cannot be restricted to mean that the parties agreed to arbitrate before an arbitral tribunal only and not an Emergency Arbitrator. Further, the parties having deliberately left it open to themselves to seek interim relief from an emergency arbitrator, or the Court in terms of Rule 30.3 of the SIAC Rules, the authority of the said emergency arbitrator cannot be invalidated merely because it does not strictly fall within the definition under Section 2(1)(d) of the Arbitration and Conciliation Act, 1996., Mr. Harish Salve, learned Senior Counsel on behalf of FRL contended that under Section 2(d) of the Arbitration and Conciliation Act, 1996, the term ‘arbitral tribunal’ cannot be deemed to include an Emergency Arbitrator because the same was recommended by the Law Commission in its 246th Report, however, the said recommendation was not accepted by Parliament and no amendment was brought to Section 2(1)(d) of the Arbitration and Conciliation Act, 1996. It is thus contended that what was expressly rejected by Parliament cannot be deemed to be included in the definition of ‘arbitral tribunal’ under Section 2(1)(d) of the Arbitration and Conciliation Act, 1996. On the contrary, Mr. Gopal Subramanium contended that the Parliament in its wisdom did not accept the recommendation of the Law Commission to provide for an Emergency Arbitrator in the amendment to the Arbitration and Conciliation Act, 1996, does not mean that the Emergency Arbitrator was excluded in the Arbitration and Conciliation Act, 1996, and that the recommendation of the Law Commission has no bearing on the interpretation of a provision in the Arbitration and Conciliation Act, 1996., In the decision reported as 2020 SCC OnLine 656 Avitel Post Studioz Ltd. & ors. v. HSBC PI Holdings (Mauritius) Ltd., the Supreme Court of India dealt with the contention that an amendment to Section 16 proposed by the 246th Law Commission Report in the light of the Supreme Court decision i.e. 2010 (1) SCC 72 N. Radhakrishnan v. Maestro Engineers, which appears to denude an Arbitral Tribunal of the power to decide on issues of fraud etc., claimed that the decision in N. Radhakrishnan (supra) having not been legislatively overruled, cannot now be said to be in any way deprived of its precedential value, as Parliament has taken note of the proposed Section 16(7) in the 246th Law Commission Report, and has expressly chosen not to enact it. The Supreme Court of India held that the development of law by the Supreme Court of India cannot be thwarted merely because a certain provision recommended in a Law Commission Report is not enacted by Parliament. It noted that Parliament may have felt that it was unable to make up its mind and instead leave it to the Courts to continue, case by case, deciding upon what should constitute the fraud exception. Parliament may also have thought that Section 16(7), proposed by the Law Commission, is clumsily worded as it speaks of a serious question of law, complicated questions of fact, or allegations of fraud, corruption, etc. The judgment of the Supreme Court of India did not lay down that serious questions of law or corruption etc. is vague and, therefore, Parliament may have left it to the Courts to work out the fraud exception., In view of the decision of the Supreme Court of India in Avitel Post (supra), it cannot be held that an Emergency Arbitrator is outside the scope of Section 2(1)(d) of the Arbitration and Conciliation Act, 1996, because Parliament did not accept the recommendation of the Law Commission to amend Section 2(1)(d) of the Arbitration and Conciliation Act, 1996 to include an ‘Emergency Arbitrator’., FRL has also relied upon Section 2(6) of the Arbitration and Conciliation Act, 1996 to contend that the said provision grants freedom to the parties to authorise any person including an institution to determine a certain issue, only when Part 1 of the Arbitration and Conciliation Act, 1996 allows the parties to do so. It was submitted that since Part 1 of the Arbitration and Conciliation Act, 1996 does not grant parties the freedom to approach any other person except the Court under Section 9 of the Arbitration and Conciliation Act, 1996 and the Tribunal under Section 17 for grant of interim relief, it is apparent that Emergency Arbitrator is incompatible with the provisions of the Arbitration and Conciliation Act, 1996. Further, FRL relied on Section 2(8) of the Arbitration and Conciliation Act, 1996 and contended that although this provision also recognizes the agreement of parties as to arbitration rules, such rules cannot override the provisions of Part 1 of the Arbitration and Conciliation Act, 1996 itself., As noted in the proviso to Section 2(2) of the Arbitration and Conciliation Act, 1996, in the case of an International Commercial Arbitration even if the place of arbitration is outside India, and an arbitral award made or to be made in such place is enforceable and recognized under the provisions of Part II of the Arbitration and Conciliation Act, 1996, provisions of Section 9, 27 and Clause (b) of sub‑Section (1) and sub‑Section (3) of Section 37 of the Arbitration and Conciliation Act, 1996, would be applicable, subject to an agreement to the contrary between the parties. Thus, parties by agreement can decide to the inapplicability of these provisions. The phrase ‘even if the place of arbitration is outside India’ further makes it clear that the said entitlement of the parties to exclude the aforementioned provisions by agreement is available in international commercial arbitrations seated in India, and even if the seat of such international commercial arbitration is outside India. Clarifying the position, the Supreme Court of India in (2012) 9 SCC 522 Bharat Aluminium Co. v. Kaiser Aluminium Technical Services (BALCO) held that if the parties to an arbitration seated outside India choose the Arbitration and Conciliation Act, 1996 to govern the arbitration proceedings, it would still not make Part 1 of the Arbitration and Conciliation Act, 1996 applicable. Instead, only the provisions in the Arbitration and Conciliation Act, 1996 relating to the internal conduct of the arbitration proceedings will be applicable, to the extent they are not inconsistent with the mandatory provisions of the curial law of the seat of arbitration. Thus, the fact that applicability of Section 9 can be excluded in an International Commercial Arbitration, conducted as per the provisions of the Arbitration and Conciliation Act, 1996 indicates that Section 9 of the Arbitration and Conciliation Act, 1996 is not a mandatory provision., Thus, the Supreme Court of India finds no merit in the contention of FRL with respect to Section 2(6) and 2(8) of the Arbitration and Conciliation Act, 1996, in view of the finding that the SIAC Rules relating to emergency arbitration are not contrary to the mandatory provisions of the Arbitration and Conciliation Act, 1996. As discussed above, the parties have chosen SIAC Rules that grant them freedom to approach the Court also under Section 9 of the Arbitration and Conciliation Act, 1996 to obtain interim relief, thus, to that extent there is no incompatibility between Part I of the Arbitration and Conciliation Act, 1996 and the SIAC Rules., From a conspectus of the discussion above, the Supreme Court of India arrives at the conclusion that firstly, the parties in an international commercial arbitration seated in India can by agreement derogate from the provisions of Section 9 of the Arbitration and Conciliation Act, 1996; secondly, in such a case where parties have expressly chosen a curial law which is different from the law governing the arbitration, the Supreme Court of India would look at the curial law for conduct of the arbitration to the extent that the same is not contrary to the public policy or the mandatory requirements of the law of the country in which arbitration is held; thirdly, insofar as Section 9 of the Arbitration and Conciliation Act, 1996 along with Sections 27, 37(1)(a) and 37(2) are derogable by virtue of the proviso to Section 2(2) in an international arbitration seated in India upon an agreement between the parties, it cannot be held that the provision of Emergency Arbitration under the SIAC Rules is, per se, contrary to any mandatory provisions of the Arbitration and Conciliation Act, 1996. Hence the Emergency Arbitrator prima facie is not a coram non judice and the consequential EA order not invalid on this count., Whether the Resolution of FRL dated 29th August, 2020 is void or contrary to statutory provisions, Supreme Court of India in (2012) 6 SCC 613 Vodafone International Holdings B.V. v. Union of India held that a shareholders' agreement (SHA) is essentially a contract between some or all shareholders in a company, the purpose of which is to confer rights and impose obligations over and above those provided by the company law. It was held that SHA is a private contract between the shareholders compared to the Articles of Association of the company, which is a public document. Being a private document, it binds parties thereon and not the other remaining shareholders of the company. Explaining the advantages of a SHA, the Supreme Court of India noted that it gives greater flexibility, unlike Articles of Association and makes provision for resolution of any dispute between the shareholders and also how the future capital contributions have to be made. It was further held that the provisions of the SHA may also go contrary to the provisions of the Articles of Association, however, in that event, naturally provisions of Articles of Association would govern and not the provisions in SHA., Following the decision in AIR 1965 SC 1535 Shanti Prasad Jain v. Kalinga Tubes Limited, the Supreme Court of India in Vodafone International Holdings B.V. v. Union of India further held that the agreement between non‑members and members of a company will not bind the company, but there is nothing unlawful in entering into agreement for transferring of shares. Of course, the manner in which such agreement is to be enforced in the case of breach is given in the general law between the company and the shareholders. A breach of SHA which does not breach the articles of association is a valid corporate action and the parties aggrieved can get remedies under the general law of the land., Therefore, a shareholders' agreement is a private contract between the shareholders, an agreement enforceable under the Indian Contract Act and for the breach thereof, any party aggrieved can seek remedy under the law or in case provided under the agreement through arbitration, however, as held by the Supreme Court of India in case of conflict between the shareholders' agreement and the Articles of Association of the company, the latter will prevail., The rationale behind the Articles of Association of a company prevailing over a shareholders' agreement stems from the basic principles that the general law i.e. the Indian Contract Act has to give way to the Special Act i.e. the Companies Act, 2013, in case of conflict. Indubitably, it is in the interest of the society that the integrity of the contracts are maintained as contractual remedies promise broad commercial stability, however it is equally true that the Indian Contract Act is not a complete Code as was noted by the Privy Council in AIR 1929 PC 132 Jwalant R. Pillani v. Bansilal Moti Lal based on the preamble of the Indian Contract Act, 1872 which notes, “whereas it is expedient to define and amend certain parts of the law relating to contracts”., Section 56 of the Contract Act acknowledges the supervening circumstances not contemplated by the parties resulting in making the contract impossible of being performed. Supervening circumstances/subsequent impossibilities on occurrence of an unexpected event or change of circumstances which are beyond what was contemplated by the parties at the time when they entered into the agreement have been duly recognized in the various Supreme Court decisions. In AIR 1954 SC 44 Satyabrata Ghose v. Mugneeram Bangur & Co., the Supreme Court of India held that when such an event or change of circumstance occurs, which is so fundamental to be regarded by law as striking at the root of contract as a whole, it is the Court which can pronounce the contract to be frustrated and at an end. It was held that the word “impossible” has not been used in the Section in the sense of physical or literal impossibility and though the performance of an act may not be literally impossible but it may be impracticable and useless from the point of view of the object and purpose of the parties., Supreme Court of India in the decision (2017) 14 SCC 80 Energy Watchdog v. Central Electricity Regulatory Commission & Ors. noted the evolution of law in relation to the impact of an unforeseen event on the performance of a contract, after it is made, as under: “34. Force majeure is governed by the Contract Act, 1872. Insofar as it is relatable to an express or implied clause in a contract, such as the PPAs before us, it is governed by Chapter III dealing with the contingent contracts, and more particularly, Section 32 thereof. Insofar as a force majeure event occurs dehors the contract, it is dealt with by a rule of positive law under Section 56 of the Contract Act. Sections 32 and 56 are set out herein: 32. Enforcement of contracts contingent on an event happening. ... 56. Agreement to do impossible act. ...”, Prior to the decision in Taylor v. Caldwell (Taylor v. Caldwell, (1863) 3 B & S 826 : 122 ER 309 : (1861‑73) All ER Rep 24), the law in England was extremely rigid. A contract had to be performed, notwithstanding the fact that it had become impossible of performance, owing to some unforeseen event, after it was made, which was not the fault of either of the parties to the contract. This rigidity of the Common law in which the absolute sanctity of contract was upheld was loosened somewhat by the decision in Taylor v. Caldwell in which it was held that if some unforeseen event occurs during the performance of a contract which makes it impossible of performance, in the sense that the fundamental basis of the contract goes, it need not be further performed, as insisting upon such performance would be unjust., The law in India has been laid down in the seminal decision of Satyabrata Ghose v. Mugneeram Bangur & Co. (Satyabrata Ghose v. Mugneeram Bangur & Co., 1954 SCR 310 : AIR 1954 SC 44). The second paragraph of Section 56 has been adverted to, and it was stated that this is exhaustive of the law as it stands in India. What was held was that the word impossible has not been used in the section in the sense of physical or literal impossibility. The performance of an act may not be literally impossible but it may be impracticable and useless from the point of view of the object and purpose of the parties. If an untoward event or change of circumstance totally upsets the very foundation upon which the parties entered their agreement, it can be said that the promisor finds it impossible to do the act which he had promised to do. It was further held that where the Court finds that the contract itself either impliedly or expressly contains a term, according to which performance would stand discharged under certain circumstances, the dissolution of the contract would take place under the terms of the contract itself and such cases would be dealt with under Section 32 of the Act. If, however, frustration is to take place dehors the contract, it will be governed by Section 56., In Alopi Parshad & Sons Ltd. v. Union of India (Alopi Parshad & Sons Ltd. v. Union of India, (1960) 2 SCR 793 : AIR 1960 SC 588), this Court, after setting out Section 56 of the Contract Act, held that the Act does not enable a party to a contract to ignore the express covenants thereof and to claim payment of consideration for performance of the contract at rates different from the stipulated rates, on a vague plea of equity. Parties to an executable contract are often faced, in the course of carrying it out, with a turn of events which they did not at all anticipate, for example, a wholly abnormal rise or fall in prices which is an unexpected obstacle to execution. This does not in itself get rid of the bargain they have made. It is only when a consideration of the terms of the contract, in the light of the circumstances existing when it was made, showed that they never agreed to be bound in a fundamentally different situation which had unexpectedly emerged, that the contract ceases to bind., Similarly, in Naihati Jute Mills Ltd. v. Khyaliram Jagannath (Naihati Jute Mills Ltd. v. Khyaliram Jagannath, (1968) 1 SCR 821 : AIR 1968 SC 522), this Court went into the English law on frustration in some detail, and then cited the celebrated judgment of Satyabrata Ghose v. Mugneeram Bangur & Co. Ultimately, this Court concluded that a contract is not frustrated merely because the circumstances in which it was made are altered. The courts have no general power to absolve a party from the performance of its part of the contract merely because its performance has become onerous on account of an unforeseen turn of events., It has also been held that applying the doctrine of frustration must always be within narrow limits. In an instructive English judgment, namely, Tsakiroglou & Co. Ltd. v. Noblee Thorl GmbH (Tsakiroglou & Co. Ltd. v. Noblee Thorl GmbH, 1962 AC 93 : (1961) 2 WLR 633 : (1961) 2 All ER 179 (HL)), despite the closure of the Suez Canal, and despite the fact that the customary route for shipping the goods was only through the Suez Canal, it was held that the contract of sale of groundnuts in that case was not frustrated, even though it would have to be performed by an alternative mode of performance which was much more expensive, namely, that the ship would now have to go around the Cape of Good Hope, which is three times the distance from Hamburg to Port Sudan. The freight for such journey was also double. Despite this, the House of Lords held that even though the contract had become more onerous to perform, it was not fundamentally altered., This view of the law has been echoed in Chitty on Contracts, 31st Edition. In paragraph 14‑151 a rise in cost or expense has been stated not to frustrate a contract. Similarly, in Treitel on Frustration and Force Majeure, 3rd Edition, the learned author has opined, at paragraph 12‑034, that the cases provide many illustrations of the principle that a force majeure clause will not normally be construed to apply where the contract provides for an alternative mode of performance. It is clear that a more onerous method of performance by itself would not amount to a frustrating event. The same learned author also states that a mere rise in price rendering the contract more expensive to perform does not constitute frustration (see paragraph 15‑158)., Indeed, in England, in the celebrated Sea Angel case (Edwinton Commercial Corp. v. Tsavliris Russ (Worldwide Salvage & Towage) Ltd. (The Sea Angel), 2007 EWCA Civ 547 : (2007) 2 Lloyd’s Rep 517 (CA)), the modern approach to frustration is well put, and the same reads as under: “111. In my judgment, the application of the doctrine of frustration requires a multi‑factorial approach. Among the factors which have to be considered are the terms of the contract itself, its matrix or context, the parties’ knowledge, expectations, assumptions and contemplations, in particular as to risk, as at the time of the contract, at any rate so far as these can be ascribed mutually and objectively, and then the nature of the supervening event, and the parties’ reasonable and objectively ascertainable calculations as to the possibilities of future performance in the new circumstances. Since the subject‑matter of the doctrine of frustration is contract, and contracts are about the allocation of risk, and since the allocation and assumption of risk is not simply a matter of express or implied provision but may also depend on less easily defined matters such as the contemplation of the parties, the application of the doctrine can often be a difficult one. In such circumstances, the test of radically different is important: it tells us that the doctrine is not to be lightly invoked; that mere incidence of expense or delay or onerousness is not sufficient; and that there has to be as it were a break in identity between the contract as provided for and contemplated and its performance in the new circumstances.” (Emphasis supplied), At this stage, the Supreme Court of India is only required to prima facie consider the supervening circumstances for application of the doctrine of frustration which requires a multi‑factorial approach as noted in the decision reported as 2007 EWCA Civ 547 (the Sea Angel case) and approved by the Supreme Court of India in Energy Watchdog (supra). In the present suit, the case of FRL is of the supervening circumstance that due to the COVID‑19 pandemic, the retail sector has taken a big hit and FRL, a listed company having public shareholdings besides the shareholders who entered into FCPL SHA, has also been seriously impacted. FRL has a large number of stores all over India with 25,000 employees therein and is burdened with loans from banks and financial institutions and is on the verge of collapse, which fact was duly informed to Amazon. FRL thus required more funds to survive, failing which the company will be defaulting entailing serious consequences on the company and its directors. This distressed financial position of FRL is not disputed by Amazon. As a matter of fact, it is Amazon’s case that to help FRL out of this position, Amazon was in touch with other entities to infuse funds in FRL. It is the case of FRL that since the directors of FRL stand in fiduciary capacity, they will have to act in the best interest of the company which position of law cannot be disputed in view of Section 166 of the Companies Act, 2013 and decisions noted hereinafter., The Companies Act, 2013 which is a special enactment codifies the fiduciary duty of the directors of a company under Section 166 as follows: 166. Duties of directors (1) Subject to the provisions of this Act, a director of a company shall act in accordance with the articles of the company.
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A director of a company shall act in good faith in order to promote the objects of the company for the benefit of its members as a whole, and in the best interests of the company, its employees, the shareholders, the community and for the protection of the environment. A director of a company shall exercise his duties with due and reasonable care, skill and diligence and shall exercise independent judgment. The Supreme Court of India in AIR 1950 SC 172 Nanalal Zaver & Anr. v. Bombay Life Assurance Co. Ltd. & Ors. reiterated the well‑settled principle that in exercising their powers, whether general or special, directors must always bear in mind that they hold a fiduciary position and must exercise their powers for the benefit of the company and for that alone., The Court can intervene to prevent the abuse of a power when such abuse is proved, and cautioned that where directors have a discretion and are bona‑fide acting in the interest of the company, it is not the habit of the Court to interfere. It was further held that when a company is in no need of further capital, directors are not entitled to use their power of issuing shares merely for the purpose of maintaining themselves and their friends in management over the affairs of a company, or merely for the purpose of defeating the wishes of the existing majority of the shareholders., It is well established that directors of a company are in a fiduciary position vis‑à‑vis the company and must exercise their power for the benefit of the company. If the power to issue further shares is exercised by the directors not for the benefit of the company but simply and solely for their personal aggrandisement and to the detriment of the company, the Court will interfere and prevent the directors from doing so. The basis of the Court's interference is the existence of the relationship of a trustee and of cestui que trust between the directors and the company., Following the decision in Nanalal Zaver (supra), this principle of fiduciary duty of the directors of a company was reiterated by the Supreme Court of India in (1981) 3 SCC 333 Needle Industries Ltd. & Ors. v. Needle Industries Newey (India) Holdings Ltd. & Ors., Learned Senior Counsel for FRL relied upon the decision reported as 1959 AC 324, Scottish Co‑operative Wholesale Society Ltd. v. Meyer & Anr., wherein the House of Lords dealt with the duties of nominee directors in relation to a company formed as a subsidiary to a co‑operative wholesale society to enable it to obtain licences and participate in the manufacture and sale of rayon materials. The two respondents were appointed as Joint Managing Directors of the company. It was noted that nominees of a parent company on the board of a subsidiary may be placed in a difficult and delicate position, and therefore the parent company must behave with scrupulous fairness to the minority shareholders and avoid imposing upon its nominees the alternative of disregarding their instructions or betraying the interests of the minority., The society pursued a different course, acting in oppression and unscrupulously, which was promoted by the action or inaction of the nominee directors. The company, which might have recovered its former prosperity, could not do so as the directors thought it had served its purposes and it was conveniently liquidated., The short answer is that it was the policy of the society that the affairs of the company should be so conducted and the minority shareholders were content that it should be so. They relied on how unwisely the event proved upon the good faith of the society, and, in any case, they were impotent to impose their own views. It is just because the society could not only use the ordinary and legitimate weapons of commercial warfare but could also control from within the operations of the company that it is illegitimate to regard the conduct of the company's affairs as a matter for which they had no responsibility., After much consideration, the late Lord President Cooper said, \In my view, the section warrants the court in looking at the business realities of a situation and does not confine them to a narrow legalistic view.\ He observed that whenever a subsidiary is formed with an independent minority of shareholders, the parent company must, if engaged in the same class of business, conduct its own affairs so as to deal fairly with its subsidiary., At the opposite pole, a parent company may say, \Our subsidiary company has served its purpose, which is our purpose. Therefore let it die,\ and enforce that decision both by external attack and internal support. If the section is inept to cover such a case, it will be a dead letter indeed., The conduct of the nominee directors was a negative one, allowing the company to drift towards the rocks. In law the society and the company were separate legal entities but were in a parent‑subsidiary relationship. The company, in substance though not in law, was a partnership consisting of the society, Dr. Meyer and Mr. Lucas. The principle that partners must act in utmost good faith, as stated in Lindley on Partnership, 11th edition, p. 401, is applicable: \A partner cannot, without the consent of his co‑partners, lawfully carry on for his own benefit, either openly or secretly, any business in rivalry with the firm to which he belongs.\, In the decision reported as [2009] EWCA Civ 291; [2010] B.C.C. 597 Hawkes v. Cuddy, the Court of Appeal held that the fact that a director of a company was nominated to that office by a shareholder did not, of itself, impose any duty on the director owed to his nominator. The director may owe duties to his nominator if he was an employee or officer of the nominator, or by reason of a formal or informal agreement with his nominator. Such duties did not arise out of his nomination but out of a separate agreement or office. These duties could not, however, detract from his duty to the company of which he was a director. An appointed director, without breaching his duties to the company, may take the interests of his nominator into account, provided that his decisions as a director were, in his genuine opinion, in the best interests of the company; this is distinct from a duty to the nominator arising from the appointment., In RNRL v. RIL, the Supreme Court of India reiterated that the Board of Directors must act in a fiduciary capacity vis‑à‑vis the shareholders and that this duty has been part of the broader understanding of company law since the time of settlement companies, the precursors of joint‑stock companies. The Court deprecated the demand of RNRL that the Board of RIL act merely as a rubber stamp for the decisions of the promoters, holding that acceptance of such demands would destroy the fabric of Company Law and the foundation of trust, faith and honest dealing with the shareholders., According to Amazon, its investment in FCPL was premised on the basis that defendant Nos. 3 and 8 in the present suit, who were the major shareholders of FCPL, were also the Executive Chairman and Managing Director of FRL respectively, and therefore exercised control over FRL. However, as noted above, defendants 3 and 8 were also required to perform their fiduciary duty towards FRL even though bound by the FCPL Shareholders' Agreement and FRL., From the documents filed by Amazon it is clear that defendant No. 3 (Kishore Biyani) in March 2020 informed Amazon expressing his fear that Covid‑19 would disrupt capital markets globally, leading to a significant deterioration of FRL's market capitalization, a fall in share price, a requirement for increased encumbrances of FRL's shares and a shortfall in security in two of their facilities under UBS AG and L&T Finance Ltd., Amazon was also asked to step in and nominate lenders of financial institutions (replacement financial institutions) to avoid alienation or disposal of FRL's shares held by the promoter groups. Considering the downturn in the market in April and May 2020, several of FRL's lenders began recalling their facilities. The documentation shows that the grim situation of FRL was duly notified to Amazon and that, although Amazon, through various options including from SAMARA, tried to negotiate, nothing concrete resulted. In this peculiar circumstance, as the shares of FRL fell and investors recalled their securities, it was essential for FRL to act to survive. This is thus a case of supervening circumstance and, as noted by the Supreme Court of India in the Energy Watchdogs decision, a multi‑factorial approach should be adopted and the acts of both FRL and Amazon have to be tested on the said anvil., Though Amazon claims that the representation to statutory authorities regarding the transaction is that it is in breach of the FCPL Shareholders' Agreement and FRL Shareholders' Agreement and that the resolution dated 29 August 2020 passed by the Board of Directors of FRL is void, no material has been placed on record by FRL to show that the resolution is void or contrary to any statutory provision. FRL contends that its Board Resolution dated 29 August 2020 does not violate any provision of FRL's Articles of Association or any provision of law and is in compliance with the fiduciary duty owed by FRL to its stakeholders. Amazon has not seriously disputed these averments except contending that the resolution is in breach of the FCPL Shareholders' Agreement and FRL Shareholders' Agreement. The resolution being in breach of the FCPL and FRL Shareholders' Agreements is distinct from the resolution being void or contrary to any statutory provision or the Articles of Association of FRL., Amazon also contends that consent of FCPL, as required under the FRL Shareholders' Agreement, was not obtained. FRL has placed on record a letter dated 29 August 2020, signed on behalf of both FRL and FCPL, wherein FCPL granted its approval for the transaction between FRL and Reliance. During arguments, counsel for FRL contested the letter, claiming it was not accompanied by a statement of truth based on an affidavit. However, as noted, both parties filed documents without the necessary affidavits at the ad interim stage, which will be required to be filed in the suit while completing the pleadings., In view of the discussion above, this Court is of the opinion that the Board Resolution dated 29 August 2020 of FRL is prima facie neither void nor contrary to any statutory provision nor the Articles of Association., The third ground on which FRL claims that Amazon is unlawfully interfering in the transaction is that by conflating the FCPL Shareholders' Agreement and FRL Shareholders' Agreement, Amazon seeks to control the affairs of FRL, which is impermissible as at best it is a shareholder of FCPL and any rights as a shareholder of FCPL vest in Amazon; in that capacity it cannot exercise control over FRL. Further, the 'control' exercised by Amazon amounts to violation of the Foreign Exchange Management Act (FEMA) Foreign Direct Investment (FDI) Rules., Relying upon the decision reported as 2019 (2) SCC 1 ArcelorMittal India Pvt. Ltd. v. Satish Kumar Gupta & Ors., learned Senior Counsel for Amazon contended that Amazon does not have the right to appoint the majority directors of FCPL and that the rights granted to Amazon under the FCPL Shareholders' Agreement are merely protective rights that do not relate to the day‑to‑day management and operation of FCPL or FRL. FRL argues that although Amazon claims the rights are protective, the conflation of the FCPL Shareholders' Agreement and FRL Shareholders' Agreement gives Amazon complete control over the functioning of FRL., According to Amazon, the FRL Shareholders' Agreement, FCPL Shareholders' Agreement and the FCPL Shareholders' Service Agreement, being a single integrated transaction, do not violate the foreign exchange laws of India. It is stated that FRL is part of the Future Group of Companies, defendant No. 3 is the Executive Chairman of FRL and defendant No. 8 is the Managing Director of FRL and they continue to hold the powers of management of the affairs of FRL. The Biyanis, excluding FCPL, are collectively the single largest shareholders of FRL with fragmented public shareholding and therefore have de‑facto control of FRL., As per the FEMA Foreign Direct Investment Rules, foreign investment up to 51% under the government route is permitted in entities engaged in multi‑brand retail trading, subject to other attendant conditions. Under paragraph 15.1, Schedule I of the FEMA FDI Rules, foreign investment up to 100% is permitted under the automatic route in FCPL, which is engaged in cash‑and‑carry wholesale trading. By the various agreements Amazon has only created protective rights for its investments in FCPL amounting to 49% of the shareholding of FCPL, which holds less than 10% of the shares in FRL. Thus even by the downstream investment Amazon has less than 5% investment in FRL. Since the investment in FRL is not by Amazon but by FCPL, an Indian entity, it cannot be considered an indirect foreign investment as the investment flows from an Indian‑owned and controlled entity., Amazon further relies upon the illustration in the FDI Policy 2017 which states: (ii) Counting of indirect foreign investment (a) The foreign investment through the investing Indian company/LLP would not be considered for calculation of indirect foreign investment in case of Indian companies/LLPs which are owned and controlled by resident Indian citizens. To illustrate, if indirect foreign investment is being calculated for Company X which has investment through an investing Company Y having foreign investment, the method is: (A) where Company Y has foreign investment less than 50%, Company X would not be taken as having any indirect foreign investment through Company Y., The relevant provisions of the FEMA Foreign Direct Investment Rules are as follows: (r) Foreign Direct Investment means investment through equity instruments by a person resident outside India in an unlisted Indian company; or in ten per cent or more of the post‑issue paid‑up equity capital on a fully diluted basis of a listed Indian company. (t) Foreign Portfolio Investment means any investment made by a person resident outside India through equity instruments where such investment is less than ten per cent of the post‑issue paid‑up share capital on a fully diluted basis of a listed Indian company or less than ten per cent of the paid‑up value of each series of equity instrument of a listed Indian company. (u) Foreign Portfolio Investor means a person registered in accordance with the provisions of the Securities and Exchange Board of India (Foreign Portfolio Investors) Regulations. Restriction on investment in India by a person resident outside India: save as otherwise provided in the Act or rules, no person resident outside India shall make any investment in India, subject to certain exceptions and the possibility of Reserve Bank of India permission., Investments by a person resident outside India may be made as follows: (a) subscribe, purchase or sell equity instruments of an Indian company in the manner and subject to the terms and conditions specified in Schedule I; (b) a person resident outside India, other than a citizen of Bangladesh or Pakistan, may invest by way of capital contribution or acquisition or transfer of profit shares of an LLP as per Schedule VI; (c) invest in units of an investment vehicle as per Schedule VIII; (d) invest in depository receipts issued by foreign depositories as per Schedule IX., An FPI may purchase or sell equity instruments of an Indian company listed or to be listed on a recognised stock exchange, and may purchase or sell securities other than equity instruments, subject to Schedule II. An FPI may also purchase, hold or sell Indian Depository Receipts of companies resident outside India as per Schedule X., Downstream investment: an Indian entity which has received indirect foreign investment shall comply with the entry route, sectoral caps, pricing guidelines and other attendant conditions applicable for foreign investment. Explanation: downstream investment by an LLP not owned and not controlled by resident Indian citizens or owned or controlled by persons resident outside India is allowed in an Indian company operating in sectors where foreign investment up to one hundred percent is permitted under the automatic route and there are no FDI‑linked performance conditions., For the purposes of this rule, ownership of an Indian company means beneficial holding of more than fifty per cent of the equity instruments; ownership of an LLP means contribution of more than fifty per cent in its capital and having majority profit share. Control means the right to appoint the majority of the directors or to control management or policy decisions, including by virtue of shareholding, management rights, shareholders' agreement or voting agreement., Indirect foreign investment means downstream investment received by an Indian entity from (A) another Indian entity which has received foreign investment and is not owned and not controlled by resident Indian citizens, or is owned or controlled by persons resident outside India; or (B) an investment vehicle whose sponsor or manager is not owned and not controlled by resident Indian citizens or is owned or controlled by persons resident outside India. No person resident in India other than an Indian entity can receive indirect foreign investment., Additional condition under the FDI Policy Circular 2017: In any sector/activity where Government approval is required for foreign investment, any inter‑shareholder agreements that affect the appointment of the Board of Directors or the exercise of voting rights must be informed to the approving authority, which will consider such agreements for determining ownership and control when approving foreign investment., Paragraph 3 of Schedule I of the FEMA FDI Rules reads: (i) Automatic route means the entry route through which investment by a person resident outside India does not require prior approval of the Reserve Bank or the Central Government; (ii) Government route means the entry route through which investment by a person resident outside India requires prior Government approval; (iii) Aggregate foreign portfolio investment up to forty‑nine per cent of the paid‑up capital on a fully diluted basis shall not require Government approval or compliance of sectoral conditions, provided such investment does not result in transfer of ownership and control of the resident Indian company from resident Indian citizens or to persons resident outside India. Other investments by a person resident outside India shall be subject to Government approval and compliance of sectoral conditions., The decision of this Court reported as 2017 SCC OnLine Del. 7810 Cruz City 1 Mauritius Holdings v. Unitech Limited, relied upon by Amazon, does not support its case as the judgment does not permit violation of the foreign exchange law. The decision held that a foreign award could not be set aside merely on the ground that enforcement required remittance in foreign exchange for which necessary approvals could be taken from the Reserve Bank of India., Before this Court, the case of Amazon is that the FRL Shareholders' Agreement, FCPL Shareholders' Agreement and FCPL Shareholders' Service Agreement constitute a single integrated transaction and Amazon entered into the transaction based on two broad sets of special and protective rights: (i) the retail assets of FRL would not be alienated without the prior consent of Amazon, never to a restricted person mentioned in the Schedule, and the Biyanis agreed that FRL would remain the sole vehicle for conduct of the retail business; (ii) if Indian laws permitted, Amazon could become the single largest shareholder of FRL, and the Biyanis agreed to maintain a minimum shareholding of 16.18% free from encumbrances.
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On the date of notification of the FRL Shareholders Agreement, that is, 26 December 2019, only 16.18 % of FRL securities were free from encumbrances and, as per Clause 17.2(i) of the FCPL Shareholders Agreement, the promoters were under an obligation to reserve the said minimum shareholding., 'Control' is defined in the Companies Act, 2013 under Section 2(27) as: “In this Act, unless the context otherwise requires, ‘control’ shall include the right to appoint a majority of the directors or to control the management or policy decisions exercisable by a person or persons acting individually or in concert, directly or indirectly, including by virtue of their shareholding, management rights, shareholders’ agreements, voting agreements or in any other manner.”, A similar definition of ‘control’ is provided under the Insolvency and Bankruptcy Code, 2016, the SEBI (Substantial Acquisition of Shares and Takeover) Regulations, 1997, the Insurance Laws (Amendment) Act, 2015 and the Explanation to Rule 23 of the FEMA Foreign Direct Investment Rules., In ArcelorMittal (supra), the Supreme Court of India, dealing with the meaning of the expressions ‘management’ and ‘control’ under the Insolvency and Bankruptcy Code, held that the expression ‘management’ refers to the de‑jure management of a corporate debtor and the expression ‘control’ denotes any positive control. The Court observed that the mere power to block a special resolution of a company cannot amount to control; control, as contrasted with management, means de‑facto control of actual management or policy decisions that can be, or are in fact, taken., The Court explained that the expression ‘control’ in Section 2(27) of the Companies Act, 2013 is defined in two parts. The first part refers to de‑jure control, which includes the right to appoint a majority of the directors of a company. The second part refers to de‑facto control, whereby a person or persons acting in concert, directly or indirectly, can positively influence management or policy decisions. A management decision concerns day‑to‑day affairs of the corporate body, whereas a policy decision concerns long‑term decisions beyond day‑to‑day affairs. Thus, control exists when such decisions can be taken by virtue of shareholding, management rights, shareholders’ agreements, voting agreements or otherwise., The Securities Appellate Tribunal, in Subhkam Ventures (I) (P) Online SAT 35, made similar observations on control under the SEBI (Substantial Acquisition of Shares and Takeover) Regulations, 1997, wherein control is defined in Regulation 2(1)(c) to include the right to appoint a majority of the directors or to control the management or policy decisions exercisable by a person or persons acting individually or in concert, directly or indirectly, including by virtue of their shareholding, management rights, shareholders’ agreements, voting agreements or in any other manner. The definition is inclusive and has two distinct features: (i) the right to appoint a majority of directors, and (ii) the ability to control management or policy decisions by the various means referred to in the definition., Black’s Law Dictionary (Eighth Edition) defines ‘control’ as the direct or indirect power to direct the management and policies of a person or entity, whether through ownership of voting securities, by contract, or otherwise; the power or authority to manage, direct, or oversee. Control is a proactive, positive power that enables an acquirer to command the target company, rather than merely prevent it from acting. In a board‑managed company, the board of directors is in control. An acquirer who can appoint a majority of directors or who can control management or policy decisions, by virtue of shareholding, management rights, shareholders’ agreements or voting agreements, is deemed to be in the driving seat of the company., In the decision reported as 2000 (3) Mh.L.J 700, Rolta India Ltd., Mumbai & Anr. v. Venure Industries Ltd., Haryana & Ors., the Division Bench of the Bombay High Court held that a pooling agreement between shareholders binds them to vote as mutually agreed and is enforceable because the right to vote is a proprietary right that may be aided by contract. However, such an agreement cannot supersede the statutory rights of the board of directors to manage the company, as shareholders cannot achieve through a pooling agreement what is prohibited to them when voting individually. The court emphasized the distinction between shareholders, who may act in their own interest, and directors, who are fiduciaries of the company and must act in its best interests., Therefore, ‘control’ includes the right to appoint a majority of directors, the right to control management, and the right to control policy decisions. These rights may be exercised individually or collectively, directly or indirectly, through shareholdings, management rights, shareholders’ agreements, voting agreements, etc. While control based on shareholding or voting rights is readily determinable, control arising from agreements may be complex to assess. Veto rights that are protective rather than participative may not amount to acquisition of control, but when such rights cross the line into control, they become subject to the FEMA Foreign Direct Investment Rules., Relevant clauses of the FCPL Shareholders Agreement read as follows: 4.1 The promoters hereby agree, covenant and undertake (i) to perform and observe all provisions of this agreement and the organisational documents; (ii) in their capacity as shareholders to exercise any voting power at any shareholders’ meeting to enable approval of any resolution necessary to give full effect to this agreement and the FRL Shareholders Agreement and to ensure that no resolution contrary to this agreement or the FRL Shareholders Agreement is passed; (iii) to cause any person appointed by them as their nominee director on the board to exercise voting power at any board meeting to enable approval of any resolution necessary to give full effect to this agreement and the FRL Shareholders Agreement and to ensure that no resolution contrary to this agreement or the FRL Shareholders Agreement is passed; (iv) to exercise voting power on behalf of themselves and the company at any meeting of the shareholders of the material entities to enable approval of any resolution necessary to give full effect to this agreement and the FRL Shareholders Agreement and to ensure that no resolution of any material entity is passed contrary to this agreement or the FRL Shareholders Agreement; and (v) to cause their affiliates to comply with paragraphs (i) to (iv)., 8.1 Notwithstanding anything contained in this agreement, the promoters and the company agree, covenant and undertake that the matters set out in Schedule IX (Investor Protective Matters) shall not be taken up, decided, acted upon or implemented by the company, nor placed for a vote at a shareholders’ meeting, nor decided by the board or any committee, nor be binding on the company, unless the investor has first approved the matter in writing. If the company proposes to take up any investor protective matter at a board meeting, written consent of the investor must be obtained beforehand, or at least one investor nominee director must be present and vote in favour. Similarly, for a shareholders’ meeting, written consent of the investor or presence of an authorised representative of the investor voting in favour is required., 10.1 Ownership and control of the promoters and promoter affiliates: The promoters agree, covenant and undertake that any promoter affiliate holding company securities shall, at all times, be wholly controlled by the ultimate controlling person and his immediate relative, who shall hold directly or indirectly at least 76 % of the legal and beneficial ownership and voting interests on a fully diluted basis of such promoter or promoter affiliate. The promoters further ensure that no restricted person holds any ownership, voting interest or control in such promoter or promoter affiliate, and that the promoter or promoter affiliate qualifies as a resident Indian citizen as defined under the FEMA regulations. The same provisions apply mutatis mutandis to any non‑natural person holding securities, ownership or voting interests in the promoters or promoter affiliates., 10.2 Restrictions on transfer: Except with prior written consent of the investor in accordance with Section 8 (Investor Protective Matters) or Section 10.2.2, or as expressly permitted by this agreement in Sections 10.3 (Transfer to promoter affiliates and promoter trust), 10.4 (Transfer by the investor), 11 (Exit of the investor) and 15 (FRL call option and associated matters), the shareholders agree, covenant and undertake that no shareholder shall transfer or encumber any company securities to another person without the prior written consent of the other shareholder, which consent may be provided or withheld at the shareholder’s sole and absolute discretion., 13.1 Consent of the investor and the promoters: Notwithstanding anything to the contrary contained in this agreement, the parties agree, covenant and undertake that the promoters and the company shall not (i) take up, decide, act upon or implement matters set out in the FRL Shareholders Agreement that require the consent of the company; (ii) place such matters for a vote at a board or shareholders’ meeting of the material entity; (iii) take any decision or cause any decision to be taken by the shareholders, the board or any committee of the material entity on such matters; or (iv) be bound by any resolutions or transactions pertaining to such matters, unless prior written consent of the investor and the promoters has been obtained. For matters relating to issuance of securities by a material entity where the company intends to decline or not subscribe to its full pro‑rata entitlement, only the investor’s written consent is required., 13.2 FRL Shareholders Agreement breach: The promoters and the company agree, covenant and undertake to comply with the provisions of the FRL Shareholders Agreement at all times. If any provision is breached or likely to be breached, the promoters and the company shall take all necessary actions to address and rectify the breach, and shall promptly notify the investor in writing. Upon receipt of a FRL Shareholders Agreement breach notice, the company and the promoters shall, within ten days, take all actions suggested by the investor to rectify the breach. If the breach is not remedied within fifteen business days or any extended period approved in writing by the investor, the investor shall be deemed the company’s duly appointed attorney with full power to act on behalf of the company to protect and enforce its rights under the FRL Shareholders Agreement., Relevant clauses of the FRL Shareholders Agreement read as follows: 4.1 The existing shareholders hereby agree, covenant and undertake (i) to perform and observe all provisions of this agreement, the memorandum of association and the articles of association; (ii) to ensure that every person representing them as a shareholder exercises voting power at any shareholders’ meeting to enable approval of any resolution necessary to give full effect to this agreement and to ensure that no resolution contrary to this agreement is passed; and (iii) to cause their affiliates to comply with paragraphs (i) and (ii)., 6.1 Ownership and control of the existing shareholders and existing shareholder affiliates: The existing shareholders represent and warrant that the shareholding pattern listed in Part B of Schedule I as on the execution date and the effective date shall be as set forth in Schedule V, and that the ultimate controlling person wholly owns and controls each of the existing shareholders directly and through his immediate relatives. Each existing shareholder or existing shareholder trust that acquires securities shall, as long as it holds any securities, be controlled by the ultimate controlling person and his immediate relatives, who shall own and hold at least 76 % of the legal and beneficial ownership and voting interests on a fully diluted basis., 6.2 Restrictions on transfer of or encumbrance over existing shareholder securities: Each existing shareholder covenants and undertakes that it shall not transfer or encumber any of the company’s securities to any person, nor shall its affiliates, except with the mutual written consent of FCL and the existing shareholders, and any transfer must comply with applicable law. In the event of a breach, default or any event giving a lender a claim over the existing shareholders’ securities, the existing shareholders shall notify FCL in writing within one day, and the company shall, if requested, replace the lender with persons nominated by the existing shareholders and FCL. The company shall not impose any share transfer restrictions such as lock‑in, right of first refusal, tag‑along rights, etc., on existing shareholder securities without prior written consent of FCL, which must be obtained in writing with full details of the proposed rights., 9.1 Reserved matters: Notwithstanding anything to the contrary, the existing shareholders and the company agree and undertake that the matters set out as reserved matters shall not be taken up, decided, acted upon or implemented by the company, nor placed for a vote at a shareholders’ meeting, nor decided by the shareholders, the board or any committee, nor be binding on the company, unless the reserved matter has first been approved in writing by FCL. If the company proposes to take up any reserved matter at a board meeting, written consent of FCL must be obtained beforehand; similarly, for a shareholders’ meeting, written consent of FCL is required.
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Except as otherwise provided in Section 9.2 (Permitted Transactions), any transfer or licence of all or substantially all of the assets of the company (including all or substantially all intellectual property), including without limitation a restricted transfer; any restricted transfer to an affiliate or a related party of the company or the existing shareholders; any amendment to the articles of association which conflicts with the rights of Future Consumer Products Ltd under this agreement; and any issuance of securities to a proposed investor not in accordance with Section 7 (Further Issue of Capital) are prohibited., Rights to veto in relation to amendment to the memorandum and articles of association of a company which adversely impact the investor’s right, alteration in its capital structure, material divestment, transfer or disposal of an undertaking, material acquisition of any company business, undertaking or joint venture which have a direct effect on the investment do not form part of the ordinary course of business and are meant for protection of the investment. However, the imposition of restriction on voting rights for all promoters and shareholders without the prior consent of the investor and the right to interfere beyond the protective rights of the investment may cross over from protective rights to controlling rights., A conflated reading of Clause 4.1(iv) of the Future Consumer Products Ltd Shareholders Agreement and Clause 4.1 of the Future Retail Limited Shareholders Agreement shows that, under the Future Consumer Products Ltd Shareholders Agreement, control was created even over the voting rights of the promoters of Future Consumer Products Ltd in relation to their decisions as shareholders of Future Retail Limited so as to enable the approval of any resolution necessary to give effect to both agreements and to ensure that no resolution of Future Retail Limited is passed which is not in accordance with either agreement. Clause 4.1 of the Future Retail Limited Shareholders Agreement similarly obliges every person representing a shareholder of Future Retail Limited to exercise any power to vote or cause the power to be exercised at any meeting of the shareholders to enable the approval of any resolution necessary to give full effect to the agreement and to ensure that no resolution contrary to the agreement is passed., Clause 9.1 of the Future Retail Limited Shareholders Agreement relates to reserved matters. It is a non‑obstante clause that obligates the existing shareholders (as set out in Schedule 1) and Future Retail Limited to undertake that Future Retail Limited will not take up, decide, act upon or implement certain reserved matters, and that such reserved matters shall not be voted upon at a shareholders’ meeting, nor decided by the shareholders, directors or any committee of the board, unless the reserved matter has first been approved in the affirmative by Future Consumer Products Ltd., The reserved matters set out in Clause 9.1(i) to (iv) comprise: (i) any transfer or licence of all or substantially all of the assets of Future Retail Limited (including all or substantially all intellectual property), including without limitation a restricted transfer; (ii) any restricted transfer to an affiliate or a related party of Future Retail Limited or the existing shareholders; (iii) any amendment to the articles of Future Retail Limited which conflicts with the rights of Future Consumer Products Ltd under the Shareholders Agreement; and (iv) any issuance of securities to a proposed investor not in accordance with Section 7 of the Shareholders Agreement (relating to further issue of capital)., Clause 9.1 therefore provides that all reserved matters as stipulated in Clause 9.1(i) to (iv) cannot be taken up, voted upon or implemented by Future Retail Limited unless expressly permitted by Future Consumer Products Ltd., Whereas Clause 9.1 makes it mandatory for Future Retail Limited to first obtain the consent of Future Consumer Products Ltd for acting upon reserved matters, Clause 13.1 of the Future Consumer Products Ltd Shareholders Agreement requires Future Consumer Products Ltd to take the consent of Amazon for all such matters. Clause 13.1 is also a non‑obstante clause that obligates the promoters and Future Consumer Products Ltd not to cause the material entity, i.e., Future Retail Limited, to take up the following matters unless a prior written consent of the investor, i.e., Amazon, and the promoters has been obtained by Future Consumer Products Ltd: (i) take up, decide, act upon or implement the matters set out in the Future Retail Limited Shareholders Agreement which require the consent of Future Consumer Products Ltd; (ii) place such matters for a vote at the board of directors’ meeting or shareholders’ meeting of Future Retail Limited; (iii) take any decision or cause any decision to be taken by the shareholders, the board of directors or any committee of the board of Future Retail Limited on matters requiring the consent of Future Consumer Products Ltd; and (iv) be bound or committed to any resolutions or transactions pertaining to such matters which require the consent of Future Consumer Products Ltd., Further, Clause 13.1.1 of the Future Consumer Products Ltd Shareholders Agreement requires the promoters of Future Consumer Products Ltd and Future Consumer Products Ltd not to cause Future Retail Limited to take up, decide, act upon or implement the matters set out in the Shareholders Agreement which require the consent of Future Consumer Products Ltd, or to place such matters for a vote at the board or shareholders’ meeting of Future Retail Limited, or to take any decision or cause any decision to be taken by the shareholders, the board or any committee of the board of Future Retail Limited on such matters, or to be bound or committed by any resolutions or transactions pertaining to such matters unless a prior written consent of Amazon and the promoters has been obtained by Future Consumer Products Ltd. It further provides that Future Consumer Products Ltd is required to obtain prior written consent from Amazon in case Future Retail Limited issues securities which Future Consumer Products Ltd proposes to decline to subscribe., A conjoint reading of Clause 9.1 of the Future Retail Limited Shareholders Agreement and Clause 13.1 of the Future Consumer Products Ltd Shareholders Agreement therefore shows that, firstly, express consent of Future Consumer Products Ltd is required by Future Retail Limited to act upon reserved matters under Clause 9.1, and, secondly, such reserved matters that require the consent of Future Consumer Products Ltd fall squarely under Clause 13.1 of the Future Consumer Products Ltd Shareholders Agreement, which cannot be acted upon by Future Consumer Products Ltd or the promoters unless approved in writing by Amazon., Cumulatively, it is clear that Amazon’s consent is required by Future Retail Limited to act upon reserved matters and that, without the consent of Amazon, Future Retail Limited is only entitled to deal with and carry out permitted transactions set out in Clause 9.2 of the Future Retail Limited Shareholders Agreement., Clause 9.2(i) and (ii) set out the permitted transactions. They are severely limited in operation and include the sale or transfer of non‑core assets (other than retail assets) which constitute less than two percent of the turnover or assets of Future Retail Limited at the time of such sale, provided that such sale is undertaken at fair market value and that in any one financial year Future Retail Limited does not undertake more than one such transaction. Another permitted transaction under 9.2(ii) is the sale or transfer of securities of any person held by Future Retail Limited where such person operates convenience stores under the brand name 7‑Eleven, which is an exempted entity., Accordingly, for any sale or transfer to be undertaken by Future Retail Limited which is not a permitted transaction covered under Clause 9.2, Future Retail Limited would require the express consent of Future Consumer Products Ltd, and Future Consumer Products Ltd would in turn require the express consent of Amazon for all such matters as per Clause 13.2 of the Future Consumer Products Ltd Shareholders Agreement. Given the narrow ambit of permitted matters that can be taken up by Future Retail Limited without requiring Amazon’s consent, there is prima facie a very limited discretion available to Future Retail Limited for conducting its own business., Clause 15.17 of the Future Consumer Products Ltd Shareholders Agreement, strongly relied upon by Future Retail Limited, states: “For the avoidance of doubt, parties hereby expressly record their undertaking that the promoters and the investor have no agreement or understanding whatsoever in relation to the acquisition of shares or voting rights in, or exercising control over, Future Retail Limited and that the company, the promoters and the investors otherwise do not intend to act in concert with each other in any way whatsoever.”, According to Amazon, Clause 15.17 of the Future Consumer Products Ltd Shareholders Agreement is under the heading ‘Call Options’ and not a main provision. Clause 15 of the Future Consumer Products Ltd Shareholders Agreement provides Amazon with a call option to purchase Future Retail Limited shares, to become the single largest shareholder, upon the occurrence of a change‑in‑law event which is defined to include any relaxation or all conditions prescribed as on the execution date under the Foreign Exchange Management Act regulations with respect to foreign direct investment in multi‑retail brand. Thus, even if Amazon were able to exercise the call option, it does not obtain control over Future Retail Limited in the present, and Amazon is under no obligation to exercise the option., The promoters of Future Consumer Products Ltd are the majority shareholders of Future Retail Limited, and 9.82 % of Future Retail Limited’s shareholding is with Future Consumer Products Ltd. Accordingly, as per the Future Consumer Products Ltd Shareholders Agreement, on matters which require the consent of Future Consumer Products Ltd as set out in the Future Retail Limited Shareholders Agreement, no matter can be taken up, decided or implemented by the majority shareholders of Future Retail Limited or the shareholders of Future Consumer Products Ltd without the consent of Amazon. These covenants prima facie transgress from a protective right to a controlling right in favour of Amazon, particularly in view of the fact that the matters essentially requiring Amazon’s consent are of a very wide ambit, while the matters within the sole discretion of Future Retail Limited are very limited., The rights granted to Amazon by the conflation of the two shareholders’ agreements are prima facie disproportionate to the actual shareholding of Amazon, and by camouflaging the extensive rights held by Amazon, the provisions of the inter‑shareholders agreements cannot be masked as mere protective rights so as to fall beyond the test of control as elaborated in Arcelor Mittal (supra)., Therefore, the Supreme Court of India is of the prima facie opinion that the conflation of the three agreements – the Future Retail Limited Shareholders Agreement, the Future Consumer Products Ltd Shareholders Agreement and the Future Consumer Products Ltd Share Subscription Agreement – besides creating protective rights in favour of Amazon for its investments, also transgress to ‘control’ over Future Retail Limited requiring government approvals and, in the absence thereof, are contrary to the Foreign Exchange Management Act Foreign Direct Investment Rules., Tortious interference: The case of Future Retail Limited alleges that Amazon is unlawfully interfering in Future Retail Limited’s endeavour to survive by amalgamating Future Retail Limited along with other group companies with Future Enterprises Limited and the subsequent transfer and vesting of the retail and wholesale undertaking from Future Enterprises Limited as a going concern on a slump‑sale basis to Reliance. Future Retail Limited’s transaction with Reliance being legal and valid, interference by Amazon amounts to tortious interference, and Amazon is liable to be injuncted., The tort of unlawful interference in a contract, also referred to as tortious interference and causing loss by unlawful means, forms a species of economic torts and has been the subject of judicial and academic debate for decades. Lord Nicholls of Birkenhead, in OBG Ltd v Allan [2007] UKHL 21, described the complexity in determining the ingredients of the tort as follows: “In particular the House is called upon to consider the ingredients of the tort of interference with a business by unlawful means and the tort of inducing breach of contract… The law is in a terrible mess.”, Similar observations were made by the Supreme Court of Canada in A.I. Enterprises Ltd. v Bram Enterprises Ltd. and Jamb Enterprises Ltd, 2014 SCC Online Can SC 16. Writing for the Court, Justice Cromwell observed that there is no consensus about what the unlawful means tort should be called and that the economic torts are in a mess., One of the leading decisions relied upon by Future Retail Limited is the House of Lords decision in OBG Ltd v Allan, where the House of Lords considered three appeals involving similar legal issues. The decision succinctly lays down the law in relation to economic torts and also discusses the decisions in Lonhro PLC v Fyed and Merkur Island Shipping Corporation., In OBG Ltd v Allan, the House of Lords rejected the unified theory propounded in Torquay Hotel Co Ltd v Cousins [1969] 2 Ch 106, where Lord Denning held that there could be liability for preventing or hindering performance of the contract on the same principle as liability for procuring a breach of contract. The decision in Torquay Hotel was approved by Lord Diplock in Merkur Island. Accordingly, pursuant to Merkur Island, the courts treated inducement or procurement of a breach of contract as the same tort as causing loss by unlawful means (tort of unlawful interference)., In OBG Ltd, the court rejected the unified theory and held that the tort for inducement or procurement of breach of contract is distinct from the tort of unlawful interference or causing loss by unlawful means. Lord Nichols, in paragraph 194, stated: “It may be helpful to pause and take an overall look at where this leaves the law. The effect of the views expressed above is to draw a sharp distinction between two economic torts. One tort imposes primary liability for intentional and unlawful interference with economic interests. The other tort imposes accessory liability for inducing a third party to commit an actionable wrong, notably a breach of contract.”, In paragraph 45, the House of Lords held that the most important question concerning this tort is determining what constitutes ‘unlawful means’. Lord Hoffman opined that an act induced within the right of the immediate actor may still be liable if it is achieved by illegal means directed against a third party., The rationale of the tort was noted by Lord Hoffman in paragraph 46, citing Lord Lindley in Quinn v Leathem [1901] AC 495, that a person’s liberty to deal with others is infringed when wrongful interference occurs, and such wrongful interference gives rise to a cause of action., Future Retail Limited has cited paragraphs 47 and 51 of OBG Ltd v Allan, which form part of Lord Hoffman’s opinion. Paragraph 47 states that the essence of the tort is (a) a wrongful interference with the actions of a third party in which the claimant has an economic interest and (b) an intention to cause loss to the claimant. Paragraph 51 defines unlawful means as acts intended to cause loss to the claimant by interfering with the freedom of a third party in a way that is unlawful against that third party and intended to cause loss to the claimant., In India, the ingredients of tortious unlawful interference were succinctly laid down in Lindsay International Ltd v L.N. Mittal, 2017 SCC Online Calcutta 14920, following OBG Ltd v Allan, as: (i) use by the defendant of unlawful means; (ii) interference with the action of a third party in relation to the claimant; (iii) intention to cause loss to the complainant; and (iv) damages., The Lindsay International decision also noted various decisions from other jurisdictions. It observed that in Scotland, McLeod v Rooney held that the essential aspect of the tort is that loss is caused to the claimant through a third party on whom the defendant has unlawfully acted. It further discussed cases such as East England Schools CIC v Palmer (2013) and Quinn v Leathem (1901) regarding knowledge of breach and violation of legal rights., In Pepsi Foods Ltd v Bharat Coca Cola Holdings Pvt Ltd, 1999 (50) DRJ 656, the Court declined to grant an interim injunction against inducement of key employees to breach employment contracts, holding that an injunction can be granted only to protect the plaintiff’s rights and not to limit the legal rights of the defendant., In Inox Leisure Limited v PVR Limited, 2020 SCC Online Del 673, a coordinate bench of the Supreme Court of India dealt with a claim of tortious interference where one competitor allegedly induced a property owner to break a contract. The suit was dismissed at the stage of issue of jurisdiction, with the court observing that a claim for tortious interference is a matter of evidence and requires a trial., Amazon contends that no contract between Future Retail Limited and Reliance has been placed on record, and therefore Future Retail Limited’s suit for tortious interference is not maintainable. Amazon’s two‑fold submission is that (i) the resolution of Future Retail Limited dated 29 August 2020 is void, and (ii) Future Consumer Products Ltd has not granted the consent required by Future Retail Limited before proceeding with the transaction, and in any case the said document has not been produced., It is noted that the resolution dated 29 August 2020 is neither void nor contrary to any statutory provisions. Future Retail Limited has filed the document dated 29 August 2020, signed by Future Retail Limited and Future Consumer Products Ltd, showing that Future Consumer Products Ltd consented to the transaction. Amazon argues that, since the document has not been filed accompanied by a statement of truth under Order VI Rule 15(a) of the Code of Civil Procedure, it cannot be considered. However, the parties have agreed to proceed at the ad‑interim stage without filing written statements or counter‑affidavits, and the Supreme Court of India will not decline to take the document on record. The parties must comply with the provisions of the Code of Civil Procedure, 1908 while completing the pleadings and file the necessary affidavits., The resolution dated 29 August 2020 of Future Retail Limited approving the proposed transaction between Future Retail Limited and Reliance satisfies the requirement of a valid contract.
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Amazon contends that the resolution is in breach of the Fertilizer Research Limited Shareholders Agreement (FRL SHA) because prior consent of Fertilizer Company Private Limited (FCPL) was not obtained. This contention is negated by a letter dated 29 August 2020 from Fertilizer Research Limited (FRL) to FCPL, in which FCPL’s consent is duly enclosed. The resolution and the FRL letter of 29 August 2020 clearly satisfy the first requirement of a subsisting contract, namely the existence of an agreement, which is the subject of the alleged interference., Applying the four tests laid down in Lindsay International (supra) to the facts of the present case, the second, third and fourth tests are prima facie satisfied. Amazon has written letters to various statutory authorities and regulators asking them not to grant approval to the transaction between FRL and Reliance, which would cause loss and damages to both FRL and Reliance., With respect to the first test of \use of unlawful means\ by Amazon, FRL relies on three grounds. First, Amazon illegally relied upon the Emergency Arbitrator (EA) order, which is invalid because the Emergency Arbitrator has no legal status under Part I of the Arbitration and Conciliation Act. Second, Amazon’s characterization of the board resolution of FRL dated 29 August 2020 as a void board resolution is wholly without basis in law and is illegal. Third, Amazon has made false assertions regarding the legality of its rights by conflating the FCPL Shareholders Agreement and the FRL Shareholders Agreement, an act that amounts to a violation of the Foreign Exchange Management Act Foreign Direct Investment Rules., In OBG Ltd. v. Allan (supra), the House of Lords recognized that although the ingredient of unlawful means is well established, there exists controversy as to its scope. Various earlier decisions were discussed and the broad and narrow scope of unlawful means was highlighted. The relevant extract is set out hereunder: Although the need for unlawful means is well established, the same cannot be said about the content of this expression. There is some controversy about the scope of this expression in this context. One view is that this concept comprises, quite simply, all acts which a person is not permitted to do. The distinction is between doing what you have a legal right to do and doing what you have no legal right to do (Lord Reid in Rookes v Barnard [1964] AC 1129). Thus, the concept of unlawful means stretches far and wide, covering common law torts, statutory torts, crimes, breaches of contract, breaches of trust and equitable obligations, breaches of confidence, and so on. Another view is that in this context unlawful means comprise only civil wrongs. In Allen v Flood, Lord Watson described illegal means as means which in themselves are in the nature of civil wrongs ([1898] AC 1). A variant on this view is even more restricted: unlawful means are limited to torts and breaches of contract., Eventually, the House of Lords by majority agreed with the view taken by Lord Hoffman, who opined that the scope of unlawful means should be narrow as laid down in Allen v Flood. In Paragraph 51 of his opinion, Lord Hoffman defined unlawful means accordingly., Various examples of what was found to be unlawful means in this context can be ascertained from the judicial decisions referred to in OBG Ltd. (supra). Lord Hoffman illustrated the case of National Phonograph Co Ltd v. Edison‑Bell Consolidated Phonograph Co Ltd ([1908] 1 Ch 335), where the defendant fraudulently induced a third party to act to the plaintiff’s detriment; the fraud was unlawful means as it was actionable by the third party if it had suffered any loss. The decision in Lonrho plc v. Fayed ([1990] 2 QB 479) was also highlighted, where the defendant made fraudulent representations to third parties with an intent to cause damage to the plaintiff, which would have been actionable by the third parties if they had suffered loss., Applying the principles laid down by Lord Hoffman in OBG Ltd. (supra) to the facts of the present case, it is evident that on two counts—Amazon asserting that the resolution dated 29 August 2020 is void and Amazon conflating the FCPL SHA and FRL SHA, thereby seeking control over FRL—Amazon’s act falls foul of the freedom of FRL and Reliance to enter into the transaction, causing loss to both parties. This constitutes a civil wrong actionable by both FRL and Reliance should they suffer loss. Thus, Amazon’s interference on the basis of an incorrect representation is a civil wrong committed against FRL and Reliance and falls within the test for unlawful means as defined in OBG Ltd. (supra). Consequently, FRL has made out a prima facie case of tortious interference by Amazon. It is clarified that it is not the mere making of the representation to statutory authorities that is actionable, but the making of a representation based on incorrect assertions that constitutes the unlawful means., The Supreme Court of India is at this stage required only to form a prima facie opinion, which it has done on the facts before it, as held by the Division Bench of the Supreme Court of India in Inox Leisure Ltd. (supra). Whether there is unlawful interference can be finally determined only after the parties have led evidence. Another test laid down in decisions such as Balailal Mukherjee v. Sea Traders, Pepsi Food Ltd., and Greig v. Insole (supra) requires that there be no lawful justification for the defender’s interference; this issue overlaps with the balance of convenience and will be dealt with in subsequent paragraphs., Interim Injunction – The Supreme Court of India, in Dalpat Kumar & Anr. v. Prahlad Singh & Ors. (1992 (1) SCC 719), laid down the principles for the grant of an injunction, noting that it is a discretionary relief. The Court must be satisfied that (1) there is a serious disputed question to be tried and, on the facts, there is a probability that the party is entitled to the relief; (2) the Court’s interference is necessary to protect the party from a specific injury, i.e., irreparable injury would ensue before the legal right is established at trial; and (3) the comparative hardship or inconvenience likely to result from withholding the injunction is greater than that likely to arise from granting it. The burden is on the plaintiff, by evidence aliunde or affidavit, to show a prima facie case. The existence of a prima facie right and infringement of the enjoyment of property or right is a condition for the grant of a temporary injunction, but satisfaction of a prima facie case alone is not sufficient. The Court must also be satisfied that non‑interference would result in irreparable injury to the party seeking relief and that no other remedy is available. Irreparable injury does not require that the injury be physically unrecoverable, only that it be material and not adequately compensable by damages. The third condition is that the balance of convenience must favour granting the injunction. The Court must exercise sound judicial discretion in weighing the substantial mischief or injury likely to be caused to each side., In Gujarat Bottling Co. Ltd. & Ors. v. Coca Cola Co. & Ors. (1995 (5) SCC 545), the Supreme Court of India reiterated the principles for granting an interim injunction, emphasizing that the decision must be taken when the existence of the legal right and its alleged violation are both contested and uncertain until proven at trial. An interlocutory injunction is granted to mitigate the risk of injustice to the plaintiff during the period of uncertainty. The object is to protect the plaintiff against injury that cannot be adequately compensated in damages if the uncertainty is resolved in his favour. This protection must be weighed against the defendant’s need to be protected from injury resulting from being prevented from exercising his own legal rights. The Court must balance these competing needs and may require the plaintiff to furnish an undertaking to compensate the defendant if the trial resolves in the defendant’s favour (see Wander Ltd. v. Antox India (P) Ltd. [1990 Supp SCC 727])., Thus, the trinity of principles for granting an interim injunction—prima facie case, irreparable loss, and balance of convenience—must be tested as noted above. Since this Court has held prima facie that Amazon’s representation, based on the plea that the FRL resolution dated 29 August 2020 is void and that the conflation of the FCPL SHA and FRL SHA seeks control not permitted under the FEMA FDI Rules without governmental approvals, constitutes a prima facie case for an interim injunction, the main tests now are balance of convenience and irreparable loss. Even if a prima facie case is made out by FRL, the balance of convenience lies with both FRL and Amazon. Amazon’s representation to statutory authorities is based on an alleged breach of the FCPL SHA and FRL SHA as well as the directions in the Emergency Arbitrator order. Consequently, it cannot be said that the balance of convenience lies solely with FRL. It would be a matter for trial after the parties have led evidence, or for any other competent forum, to determine whether Amazon’s representation that the transaction between FRL and Reliance breaches the FCPL SHA and FRL SHA outweighs FRL’s plea. If Amazon is not permitted to represent its case before the statutory authorities, it would suffer an irreparable loss, claiming pre‑emptive rights in its favour under future Indian law. Conversely, there may be no irreparable loss to FRL because, even if Amazon makes a representation based on incorrect facts using unlawful means, the statutory authorities will consider the facts and legal issues and reach the correct conclusion. Moreover, both FRL and Amazon have already made their representations and counter‑representations to the statutory authorities, and it is now for those authorities to decide. Therefore, this Court finds that no case for the grant of an interim injunction is made out in favour of FRL against Amazon., Consequently, the present application is disposed of, declining the grant of the interim injunction as prayed for by FRL. The statutory authorities and regulators are directed to take decisions on the applications and objections in accordance with the law.
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Amendment of section 8 – Short title and commencement. Bill Number LXII of 2013 further to amend the Representation of the People Act, 1951. Be it enacted by Parliament in the Sixty‑fourth Year of the Republic of India as follows: This Act may be called the Representation of the People (Second Amendment and Validation) Act, 2013. It shall be deemed to have come into force on the 10th day of July 2013., In the Representation of the People Act, 1951, in section 8, for sub‑section (4), the following sub‑section shall be substituted, namely: (4) Notwithstanding anything contained in sub‑section (1), sub‑section (2) or sub‑section (3), a disqualification under any of the said sub‑sections shall not, in the case of a person who on the date of the conviction is a member of Parliament or the Legislature of a State, take effect if an appeal or application for revision is filed in respect of the conviction and sentence within a period of ninety days from the date of conviction and such conviction or sentence is stayed by the court. Provided that after the date of the conviction and until the date on which the conviction is set aside by the court, the member shall neither be entitled to vote nor draw salary and allowances, but may continue to take part in the proceedings of Parliament or the Legislature of a State, as the case may be., Notwithstanding anything contained in any judgment, decree or order of any court, tribunal or other authority, the provisions of the Representation of the People Act, 1951, as amended by this Act, shall be deemed always to have effect for all purposes as if the provisions of this Act had been in force at all material times., The Representation of the People Act, 1951 provides for the conduct of elections of the Houses of Parliament and the House or Houses of the Legislature of each State, the qualifications and disqualifications for membership of those Houses, the corrupt practices and other offences at or in connection with such elections and the decision of doubts and disputes arising out of or in connection with such elections., Section 8 of the Act provides that a person convicted of an offence mentioned in that section shall be disqualified from the date of conviction and the disqualification is to be continued for the period specified in that section. Sub‑section (4) carves out an exception providing that the disqualification under sub‑sections (1), (2) or (3) shall not take effect in the case of a sitting member of Parliament or the Legislature of a State until three months have elapsed from the date of conviction or, if within that period an appeal or application for revision is brought in respect of the conviction or the sentence, until that appeal or application is disposed of by the court., The saving provision in sub‑section (4) of section 8 of the Act was challenged by way of public interest litigation before the Supreme Court of India in Lilly Thomas versus Union of India and others [Writ Petition (Civil) Number 490 of 2005]. A Division Bench of the Supreme Court of India, by its judgment dated 10 July 2013, held that Parliament has no power to enact sub‑section (4) of section 8 of the Act and declared that the provision is ultra vires the Constitution, giving the judgment prospective effect., The Government has examined the judgment of the Supreme Court of India and has filed a petition for review in consultation with the Learned Attorney‑General for India. The Government is of the view that without waiting for the outcome of the review petition, there is a need to suitably address the situation arising out of the judgment of the Supreme Court of India. Therefore, it has been proposed to amend the Act., The amendment proposed in the Representation of the People (Second Amendment and Validation) Bill, 2013, inter alia, is to substitute sub‑section (4) of section 8 so as to provide that the disqualification in view of conviction under sub‑sections (1), (2) or (3) of that section in respect of a member of Parliament or the Legislature of a State shall not take effect if an appeal or application for revision is filed in respect of the conviction and sentence within a period of ninety days from the date of conviction and such conviction or sentence is stayed by a court. Further, after the date of conviction and until the date on which the conviction is set aside by the court, the member shall neither be entitled to vote nor draw salary and allowances, but may continue to take part in the proceedings of Parliament or the Legislature of a State, as the case may be., The Bill seeks to achieve the above objectives., Notwithstanding anything in sub‑section (1), sub‑section (2) or sub‑section (3), a disqualification under either sub‑section shall not, in the case of a person who on the date of the conviction is a member of Parliament or the Legislature of a State, take effect until three months have elapsed from that date or, if within that period an appeal or application for revision is brought in respect of the conviction or the sentence, until that appeal or application is disposed of by the court. Explanation: (a) 'law providing for the prevention of hoarding or profiteering' means any law, or any order, rule or notification having the force of law, providing for (i) the regulation of production or manufacture of any essential commodity; (ii) the control of price at which any essential commodity may be brought or sold; (iii) the regulation of acquisition, possession, storage, transport, distribution, disposal, use or consumption of any essential commodity; (iv) the prohibition of the withholding from sale of any essential commodity ordinarily kept for sale; (b) 'drug' has the meaning assigned to it in the Drugs and Cosmetics Act, 1940; (c) 'essential commodity' has the meaning assigned to it in the Essential Commodities Act, 1955; (d) 'food' has the meaning assigned to it in the Prevention of Food Adulteration Act, 1954.
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Noticee No. Noticee Name PAN 1 Shri Mukesh D Ambani AADPA3705F 2 Shri Anil D Ambani AADPA3703D 3 Smt. K D Ambani AACPA5346H 4 Smt. Dipti D Salgaokar ABKPS7317M 5 Smt. Nina B Kothari AAHPK5415A 6 Shri R H Ambani AALPA6303R 7 Shri Dattaraj Salgaokar ABYPS1941H 8 Smt. Nita Ambani AADPA3704E 9 Smt. Tina Ambani AAEPA2345Q 10 Shri Akash M Ambani AIBPA1587H 11 Shri Jayanmol Ambani AJPPA3678N 12 Ms. Isha M Ambani AIBPA1586G 13 Shri Vikram D Salgaokar AXVPS0706M 14 Ms. Isheta D Salgaokar BDLPS7706L 15 Ms. Nayantara B Kothari AOTPK3112L 16 Fiery Investment & Leasing Private Limited Not Available 17 Sanatan Textrade Private Limited AAACS 5556Q 18 Orson Trading Private Limited Not Available 19 Clarion Investments & Trading Private Limited Not Available 20 Reliance Consolidated Enterprises Private Limited 21 Real Fibres Limited Not Available 22 Nikhil Investments Company Limited Not Available 23 Hercules Investments Limited Not Available 24 Pams Investments & Trading Company Limited AAACP2092A 25 Jagishwar Investments & Trading Company Limited AAAFCJ0979 26 Jagadanand Investments & Trading Company Limited AAACJ0932H 27 Kankhal Trading Limited (Earlier known as Kankhal Investments & Trading Company Limited) AAACK1774A 28 Kedareshwar Investments & Trading Company Limited AAACK1532A 29 Entity Communications Private Limited on behalf of Akshar Trades Private Limited; Antarang Trader Private Limited; Antariksh Commercials Private Limited; Arundathi Trades Private Limited; Avada Trading Company Limited; Chaitanya Commercials Private Limited; Deep Mercantile Private Limited; Gaiety Mercantile Private Limited; Kalpavriksha Trading Private Limited; Neelam Mercantile Private Limited; Panchtirth Trading Private Limited; Platinum Commercials Private Limited; Prasiddhi Trading Private Limited; Shrusti Trading Private Limited; Spark Tradecom Private Limited; Sundale Merchandise Private Limited; Suprabhat Tradecom Private Limited; Vijeta Commercial Private Limited AAACE0876H 30 Evershine Traders Private Limited on behalf of Anusudha Tradecom Private Limited; Bhagirath Trader Private Limited; Charishma Investments Private Limited; Cube Investments Private Limited; Devpriya Mercantile Private Limited; Eminent Commercials Private Limited; Esteem Textiles Trading Private Limited; Hexagon Trading & Investments Private Limited; Khodiyar Trading & Investments Private Limited; Kinnari Merchandise Private Limited; Nirantar Merchandise Private Limited; Nirupama Traders Private Limited; Ranjana Traders Private Limited; Smruti Mercantile Private Limited; Swarna Trading Private Limited; Vanraj Merchandise Private Limited 31 Anumati Mercantile Private Limited on behalf of Yangste Trading Private Limited Not Available 32 Amur Trading Private Limited Not Available 33 Tresta Trading Private Limited Not Available 34 Reliance Realty Limited (Earlier known as Terene Fibres India Private Limited) Not Available merged into Reliance Industries Holding Private Limited (hereinafter collectively referred to as Noticees)., The Securities and Exchange Board of India (hereinafter referred to as SEBI) conducted an investigation into alleged irregularities relating to the issue of twelve crore equity shares in January 2000 by Reliance Industries Limited (hereinafter referred to as \RIL\) at a price of Rs. 75 per share to thirty‑eight allottee entities. The allotment was made consequent to the exercise of the option on warrants attached with six hundred million fourteen percent non‑convertible secured redeemable debentures of Rs. 50 each aggregating to Rs. 300 crore (PPD IV) issued in 1994. From the disclosure filed under Regulation 8(3) of the Securities and Exchange Board of India (Substantial Acquisition of Shares and Takeovers) Regulations, 1997 (hereinafter referred to as \Takeover Regulations\) by RIL to the Bombay Stock Exchange on 28 April 2000, it was observed that the thirty‑eight allottee entities were disclosed as Persons Acting in Concert (\PACs\) with the RIL promoters. The shareholding of RIL promoters together with PACs increased from 22.71 per cent as on 31 March 1999 to 38.33 per cent as on 31 March 2000. Of this, 7.76 per cent shares were acquired consequent upon a merger and were exempt under Regulation 3(1)(j)(ii) of the Takeover Regulations. However, 6.83 per cent shares acquired by RIL promoters together with PACs in exercise of three crore warrants were alleged to be in excess of the ceiling of five per cent prescribed in Regulation 11(1) of the Takeover Regulations., It was alleged that the obligation not to make an additional acquisition of more than five per cent of voting rights in any financial year unless the acquirer makes a public announcement to acquire shares in accordance with Regulation 11(1) of the Takeover Regulations arose on 7 January 2000, the date on which the PACs were allotted RIL equity shares on exercise of warrants issued in January 1994. Since the promoters and PACs have not made any public announcement for acquiring shares, it is alleged that they have violated the provisions of Regulation 11(1) of the Takeover Regulations., In view of the above, adjudication proceedings were initiated under Section 15H of the SEBI Act, 1992 against thirty‑six promoters and PACs, which includes the thirty‑four Noticees and two other entities viz. Shri B H Kothari and Bhadreshyam Kothari, for the alleged violation of Regulation 11(1) of the Takeover Regulations. Subsequently, Reliance Consolidated Enterprises Private Limited, in its letter dated 8 November 2011, stated that B.H. Kothari and Bhadrashyam Kothari were the same individual. Further, the adjudication order dated 30 September 2020 noted that the adjudication proceedings against the late Shri Bhadreshyam Kothari were abated as he had passed away on 22 February 2015., Shri Piyush Gupta was appointed as the Adjudicating Officer by SEBI vide communique dated 15 December 2011 under Section 15I of the SEBI Act, 1992 read with Rule 3 of the SEBI (Procedure for Holding Inquiry and Imposing Penalties) Rules, 1995 (hereinafter referred to as Adjudication Rules) to inquire into and adjudge under Section 15H of the SEBI Act, 1992 the alleged violations by the Noticees. Settlement applications were filed by certain Noticees in August 2011 but were rejected by SEBI on 15 May 2020 and the rejection was communicated on 18 May 2020. The undersigned was appointed as Adjudicating Officer in the matter vide communique dated 28 May 2020., Show Cause Notices dated 24 February 2011 (hereinafter referred to as \SCN\) were issued by the erstwhile Adjudicating Officer to the Noticees in terms of Section 15I of the SEBI Act, 1992 read with Rule 4 of the Adjudication Rules for the violations specified in the SCN., Reliance Consolidated Enterprises Private Limited, on 14 March 2011 and 17 March 2011, requested inspection of documents on behalf of the Noticees and also sought an opportunity of personal hearing. On 18 March 2011, it was communicated that the documents relied upon for the SCN were annexed to the SCN and a personal hearing before the erstwhile Adjudicating Officer was granted on 20 April 2011. Certain other Noticees were granted a personal hearing on 21 April 2011. On 19 April 2011, Reliance Consolidated Enterprises Private Limited, on behalf of the listed Noticees, requested an adjournment of the hearings and time till 10 June 2011 to file written submissions. A hearing notice dated 7 June 2011 granted the Noticees an opportunity of personal hearing on 5 July 2011. On 10 June 2011, Reliance Consolidated Enterprises Private Limited and Entity Communications Private Limited filed a reply containing preliminary submissions., The preliminary submissions raised fundamental issues relating to the powers and jurisdiction of SEBI, the ability of SEBI to initiate adjudication proceedings after a significant lapse of time, and the retrospective application of the 1997 Takeover Regulations. The Noticees submitted that these issues should be decided before a merits‑based reply to the SCN is sought, and that making these submissions does not waive any of their rights under equity or law. They further submitted that the adjudication proceedings are time‑barred, that the proceedings are barred by limitation, and that SEBI cannot initiate proceedings after an inordinate delay. The Supreme Court in Citedal Fine Pharmaceuticals v. Government of India (AIR 1989 SC 1771) observed that every authority must exercise its power within a reasonable period, and that the determination of reasonableness depends on the facts of each case. The Supreme Court in State of Punjab v. Bhatinda District Co‑op Milk Union Limited held that where no period of limitation is prescribed, the statutory authority must exercise its jurisdiction within a reasonable period, which in no case will exceed five years., The Bombay High Court in Universal Generics Private Limited v. Union of India (1993 ECR 190 (Bombay)) quashed a show cause notice issued after ten years, observing that the delay was not just and fair. In Bhagwandas S. Tolani v. B.C. Aggarwal and Others (AIR 1983 (12) ELT 44 (Bombay)) the court held that the department could not take up matters after an eleven‑year delay unless there was default on the part of the petitioner. In Cambata Industries (Pvt) Ltd v. Additional Director of Enforcement ([2010] 99 SCL 262 (Bombay)) the court observed that a lapse of more than thirty‑five years made it untenable to reopen proceedings. Accordingly, the Noticees humbly submit that the initiation of adjudication proceedings by SEBI seventeen years after the acquisition of the warrants and eleven years after the acquisition of shares is unreasonable, time‑barred, and should be set aside., The Noticees further submit that the SCN is non‑est and patently erroneous because the Noticees have been charged with contravention of Section 15H of the SEBI Act, which is not applicable. Section 15H provides for a penalty for failure to make a public announcement in accordance with the 1997 Takeover Regulations. The Noticees contend that Section 15H does not apply to the present case and therefore the charge in the SCN is erroneous and should be quashed., The Noticees were exempt from the requirements of Regulation 11(1) of the 1997 Takeover Regulations because the allotment of shares was made on a preferential basis, which is exempt under Regulation 3(1)(c) of the 1997 Takeover Regulations., It is submitted that the order of the whole time member dated 15 December 2010 appointing the Adjudicating Officer is patently erroneous because it empowers the officer to inquire into and adjudge violation of Section 15H of the SEBI Act, which is not applicable. Consequently, the SCN, which is based on that order, ought to be set aside as the entire adjudication process has been vitiated., Section 15H of the SEBI Act, as it existed on 7 January 2000, provided for a penalty not exceeding five lakh rupees. An amendment effective from 29 October 2002 increased the penalty to Rs. 25 crore or three times the amount of profits made out of the failure to disclose, whichever is higher. The rule against ex post facto laws enshrined in Article 20(1) of the Constitution of India prevents a penalty greater than that which was in force at the time of the alleged offence. The Supreme Court in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh (AIR 1953 SC 394) and Kedar Nath Bajoria v. State of West Bengal (AIR 1953 SC 404) upheld this principle., The Noticees submit that any penalty must be as per the law prevailing on the date of the alleged breach of the 1997 Takeover Regulations, i.e., on 7 January 2000, when the unamended Section 15H applied and the maximum monetary penalty was Rs. 5 lakh. The Securities Appellate Tribunal in D‑link Holding Mauritius v. SEBI (SAT Order dated 1 November 2004) and Rameshchandra Mansukhani v. SEBI (SAT Order dated 7 February 2005) held that the penalty cap applicable on the date of the breach governs the penalty., In D‑link Holding Mauritius v. SEBI, the SAT observed that the amendment to the SEBI Act was prospective and not retrospective. Similarly, in Rameshchandra Mansukhani NRI v. SEBI, the SAT held that unless a regulation is expressly made retrospective, the penalty applicable is the one in force at the time of the alleged violation, which was Rs. 5 lakh., The reference in the SCN to the amended Section 15H of the SEBI Act as the basis for the penalty is therefore erroneous and based on a misinterpretation of the law., The SCN charges the Noticees with contravention of Regulation 11(1) of the 1997 Takeover Regulations and seeks to apply the version amended on 29 October 2002 to a violation that occurred in January 2000. This retrospective application is ultra vires the SEBI Act., The 1997 Takeover Regulations are delegated legislation made by SEBI under Section 30 of the SEBI Act. A delegated rule operates prospectively unless the parent statute expressly or by necessary implication empowers retrospective effect. The Supreme Court in Commissioner of Income Tax v. Bazpur Co‑operative Sugar Factory Limited (AIR 1988 SC 1263) held that retrospective operation of delegated legislation requires clear statutory authority. The Court in Process Technicians and Analysts' Union v. Union of India (AIR 1997 SC 1288) reiterated that retrospective effect must be expressly conferred by the parent enactment., Section 30 of the SEBI Act states that the Board may, by notification, make regulations consistent with the Act to carry out its purposes. It does not expressly or implicitly empower SEBI to make regulations retrospective., The Supreme Court in Captain K.C. Arora v. State of Haryana (AIR 1987 SC 1858) and Keshavan Madhava Menon v. State of Bombay (AIR 1951 SC 128) affirmed that every statute is prima facie prospective unless expressly made retrospective, and that retrospective operation is limited to situations affecting vested rights or imposing new burdens., Since the SEBI Act does not empower SEBI to make delegated legislation retrospective, the application of the 1997 Takeover Regulations to the acquisition of the warrants on 12 January 1994 and the subsequent acquisition of shares is ultra vires the SEBI Act., The Bombay High Court in Harinarayan Bajaj v. Union of India ([2009] 147 CompCas 579 (Bombay)) held that Regulation 47 of the Takeover Regulations, 1997 does not provide for retrospective application, and that the 1994 Regulations, once repealed, are limited to the savings provision., Therefore, the SCN should be set aside and the adjudication proceedings against the Noticees should be dropped., The Hon'ble Adjudicating Officer is urged to drop the proceedings for the following reasons: the adjudication proceedings are time‑barred and suffer from undue delays; the principal charge under Section 15H of the SEBI Act is patently erroneous as the provision does not apply; consequently, the order appointing the Adjudicating Officer is also erroneous, vitiating the entire process; the SCN seeks to impose a greater penalty than was applicable on the date of the alleged violation; and the Noticees seek adjudication of these fundamental issues as a preliminary matter., The Noticees will be represented by counsel and seek an opportunity to make legal submissions on the matter., The Noticees request that no order be passed in relation to this interim application or on the merits of the SCN, and that the matter not proceed without granting an opportunity of personal hearing., Subsequently, the Noticees filed settlement applications in August and September 2011. A personal hearing was conducted before the erstwhile Adjudicating Officer on 17 October 2011, where the authorized representatives stated that the Noticees had filed consent applications and did not wish to make submissions on the merits at that stage. They requested that the proceedings be kept in abeyance pending the final decision on the consent applications and that the preliminary submissions dated 10 June 2011 be decided before the matter is taken up for a merits hearing. They also requested that the hearing be rescheduled as counsel for the Noticees were unavailable on the proposed date.
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I note that the following entities, Uditi Mercantile Private Limited and Pams Investments & Trading Co. Private Limited, preferred Appeal No. 16 of 2012 and Appeal No. 22 of 2012 before the Hon'ble Securities Appellate Tribunal (SAT). The grievance of the appellants was that preliminary issues had been raised by the appellants in their reply dated 10 June 2011 to the Show Cause Notice relating to adjudication proceedings being time‑barred and being taken after an unreasonable period. The appellants submitted that initiation of adjudication proceedings by the Securities and Exchange Board of India (SEBI) seventeen years after the acquisition of warrants by the appellants and eleven years after the acquisition of shares was unreasonable, time‑barred and that the Show Cause Notice ought to be set aside on this ground alone., In this regard, the Hon'ble SAT, vide its order dated 8 April 2013, disposed of the appeals with a direction that once the Board has taken a view on the consent proceedings preferred by the appellants, the adjudicating officer of the Board may decide the preliminary objection taken by the appellants in the adjudication proceedings in accordance with law., As per the available records, the settlement applications filed by the respective noticees were rejected by SEBI and the rejection was communicated to the authorized representatives of the noticees by SEBI’s email dated 18 May 2020. By a letter dated 22 June 2020, the appointment of the undersigned as Adjudicating Officer in the present matter was communicated to the noticees. The noticees were granted an opportunity to make any submissions. By a letter dated 10 July 2020, the authorized representatives (ARs) of the noticees requested inspection of documents in the matter. Accordingly, by a letter dated 14 July 2020 the ARs were granted an opportunity to inspect documents and were advised to communicate with the Enforcement Department of SEBI. It was further communicated that only those documents which have been relied upon in the matter would be provided., In their letter dated 10 July 2020 the ARs stated that noticees numbered 16 to 26 and 28 to 33 had merged into Reliance Industries Holding Private Limited. Noticee No. 27, Kankhal Investments & Trading Co. Ltd., had been converted into a limited liability partnership and is now known as Kankhal Trading LLP. Noticee No. 34, Terence Fibres India (P) Ltd., is now known as Reliance Realty Limited., The ARs were provided inspection of documents relied upon for the purpose of the Show Cause Notice on 15 September 2020. Subsequently, by a letter dated 22 September 2020 the ARs requested full inspection of all documents referred to in their letter dated 14 September 2020 to the Enforcement Department of SEBI, including copies of the disclosure letters dated 25 April 2000 and 28 April 2001 addressed by Reliance Industries Limited under the Takeover Regulations, bearing stock‑exchange inward numbers 28985 and 41315 respectively. They also requested adequate time to access old records, meet their lawyers and file a detailed reply. By email dated 23 September 2020 it was communicated that all documents relied upon with respect to the charges against the noticees had been provided. By a letter dated 24 September 2020 the ARs submitted their reply, the main contentions of which are reproduced below., Despite several repeated requests, the noticees have not been provided with inspection of all documents in relation to the Show Cause Notice as specifically set out in the correspondence referred above. Instead, SEBI has continued to take the position that only the documents relied upon in the Show Cause Notice are entitled to inspection. SEBI has further sought to justify this position on the basis of observations in certain decisions of the Hon'ble Securities Appellate Tribunal (SAT) in an email dated 23 September 2020., The noticees reiterate that, based on principles of natural justice and settled law, including decisions of the Hon'ble Supreme Court of India, they are entitled to inspect all material collected by SEBI in relation to the matters connected with the Show Cause Notice in order to effectively respond to it., In the order dated 4 February 2019 (as modified by an order dated 20 February 2019) in relation to Writ Petition (L) No. 300 of 2019 filed by Reliance Industries Limited before the Hon'ble Bombay High Court, the Court observed that the petitioner was not entitled to receive a copy of Mr. Y. H. Malegam’s report because the Internal Committee proceedings were yet to take place. However, the Court also observed that as and when adjudicatory proceedings take place, the petitioner may ask for copies of such documents in accordance with the procedure established to conduct the proceedings., The noticees are therefore surprised by SEBI’s refusal to provide the requested documents, especially in light of the submissions made by learned counsel appearing for SEBI before the Hon'ble Bombay High Court and the order of that Court. A copy of the order is enclosed for reference., In Price Waterhouse v. Securities and Exchange Board of India (Appeal No. 8 of 2011, dated 1 June 2011), the Hon'ble SAT dealt with the issue of a noticee’s right to access material held by SEBI. The Hon'ble Presiding Officer, Hon'ble Mr. Justice N. K. Sodhi (in a separate minority opinion), held that fairness demands that the entire material collected during investigations be made available for inspection to the person whose conduct is in question, irrespective of whether the authority relies upon it. Withholding evidence, whether exculpatory or incriminatory, is neither fair nor just., The SAT’s decision, including the majority decision, was challenged by SEBI before the Hon'ble Supreme Court of India. In its order dated 10 January 2017, the Supreme Court categorically upheld Justice Sodhi’s finding, directing that all documents collected during investigation shall be permitted to be inspected by the respondents. Accordingly, the observations of Justice Sodhi, and not those of the majority, constitute the law on the right to inspect documents., The decisions referred to in SEBI’s email dated 23 September 2020, namely Shruti Vora v. SEBI (Appeal (L) No. 28 of 2020) and Anand R. Sathe v. SEBI (Appeal No. 150 of 2020), involve completely different facts. In Shruti Vora the SAT observed that the show cause notice was issued for the purpose of deciding whether an enquiry was required, not for adjudication, and therefore the appellant was not entitled to copies of documents not relied upon at the preliminary stage. In the present case SEBI had already arrived at a finding in April 2010 before issuing the Show Cause Notice, and prosecution proceedings are already pending. Hence the Shruti Vora precedent does not apply., All allegations made by SEBI relate to the same transaction of issue of non‑convertible debentures (NCDs) in 1994 with warrants attached and acquisition of shares in 2000 pursuant to those warrants. The Show Cause Notice was first issued almost eleven years after the transaction. SEBI has been investigating the matter for almost twenty years and has now also filed prosecution proceedings. The documents requested by the noticees culminate in SEBI’s conclusion regarding breach of the SEBI (Substantial Acquisition of Shares and Takeovers) Regulations, 1997 and initiation of the current adjudication proceeding. Denial of access to the full material would prejudice the noticees and deny them a fair hearing., The basis of commencement and re‑commencement of proceedings against the noticees under the Show Cause Notice, and the commencement of prosecution proceedings for the same subject matter, are various reports, notes and opinions available with SEBI. Providing only the documents referred to in the Show Cause Notice or selectively providing certain documents would deprive the noticees of the opportunity to examine the material and prepare an effective response., In view of the foregoing, the noticees request: (i) full inspection of all documents as requested in paragraph 5 of their letter dated 14 September 2020; and (ii) photocopies of the documents mentioned in paragraphs 2.1(i) and 2.1(ii) of their letter dated 22 September 2020., Once full inspection is provided, the noticees will be able to submit a detailed, effective and complete response to the Show Cause Notice., The nature of the information required pertains to the issue of NCDs in 1994 and acquisition of shares in 2000. The records are voluminous and stored at the client’s offices at more than one location, which have been closed for the last six months. In view of the present proceedings, the client will endeavour to open its offices for this limited purpose after sanitisation and installation of the requisite Covid‑19 prevention mechanisms as per Government directives., The client expects to temporarily open its offices in the week beginning 5 October 2020 and will require time till 19 October 2020 to peruse the available records in order to file a response to the Show Cause Notice. This will be without prejudice to the client’s contention that noticees are entitled to full inspection and that, unless all material and documents are provided, the noticees are deprived of the opportunity to effectively deal with the allegations in the Show Cause Notice. This letter should not be construed as an admission by the noticees of any statement, allegation or contention in the Show Cause Notice, and is without prejudice to any rights or remedies that the noticees may have under equity, law or otherwise, all of which are expressly reserved., Accordingly, considering that inspection of relied‑upon documents has already been granted and the noticees have requested additional time to submit a reply, by email dated 25 September 2020 the noticees were granted time till 19 October 2020 as requested. By a letter dated 19 October 2020 the noticees submitted their reply, the main contentions of which are reproduced below., The noticees refer to the correspondence granting a final opportunity to file a reply to the Show Cause Notice by 2 October 2020. At the outset, without prejudice to what is stated in the reply, the noticees deny having violated any provision of the SEBI (Substantial Acquisition of Shares and Takeovers) Regulations, 1997 as alleged in the Show Cause Notice., The noticees submit that nothing contained in the Show Cause Notice shall be deemed admitted unless specifically admitted herein or for want of specific traverse. Each objection and submission is without prejudice to the other objections and submissions in this reply., Background: The Show Cause Notice alleges that the promoters of Reliance Industries Limited (RIL) together with the noticees, as persons acting in concert, on 7 January 2000 collectively acquired a 6.83 % stake in RIL pursuant to the exercise of options on warrants attached to non‑convertible debentures issued by RIL to the noticees in January 1994. Based on disclosures made by RIL to the stock exchanges under the 1997 SAST Regulations, the Show Cause Notice alleges that the shareholding of the promoters together with the noticees increased from 22.17 % as on 31 March 1999 to 38.33 % as on 31 March 2000, of which 7.76 % was exempt as it was acquired pursuant to a merger exempted under the 1997 SAST Regulations., Although the 1997 SAST Regulations were not in force when the warrants were issued in January 1994, the Show Cause Notice alleges that the acquisition of 6.83 % shares in RIL pursuant to exercise of the warrants was in excess of the prescribed thresholds under Regulation 11(1) of the 1997 SAST Regulations, triggering a requirement for a public announcement. As the noticees failed to make such announcement, the Show Cause Notice alleges contravention of Regulation 11(1)., Eleven years after the warrant shares were allotted, the Show Cause Notice seeks to initiate adjudication proceedings against the noticees for the alleged contravention of Regulation 11(1) under Rule 4 of the SEBI (Procedure for Holding Inquiry and Imposing Penalties by Adjudicating Officer) Rules, 1995, and directs the noticees to show cause why penalty under Section 15H of the SEBI Act ought not to be imposed., The noticees filed a reply raising preliminary objections in June 2011 and requested that the preliminary objections be decided by the adjudicating officer. Some of the noticees filed appeals before the Hon'ble Securities Appellate Tribunal, which were disposed of by an order dated 8 April 2013. The order reproduced relevant paragraphs: By its reply dated 10 June 2011 the appellants raised preliminary issues relating to adjudication proceedings being time‑barred and being taken after an unreasonable period. It was submitted that initiation of adjudication proceedings by the Board seventeen years after the acquisition of warrants and eleven years after the acquisition of shares was unreasonable, time‑barred and that the Show Cause Notice ought to be set aside on this ground alone. The adjudicating officer could not decide the preliminary issues as the consent proceedings were pending. The Tribunal declined to intervene and directed that once the Board has taken a view on the consent proceedings, the adjudicating officer may decide the preliminary objections., By letters dated 22 June 2020 (received by noticees on 3 July 2020) the adjudication proceedings against the noticees were resumed. The noticees requested inspection of all documents, records, files and internal notings of SEBI in respect of the Show Cause Notice., Despite the law settled by the Hon'ble Supreme Court of India in the recent PwC case, only the following documents were provided for inspection on 15 September 2020: (i) photocopy of the disclosure letter dated 25 April 2000 addressed by RIL under the SEBI (Substantial Acquisition of Shares and Takeovers) Regulations, 1997 (stock‑exchange inward No. 28985); (ii) photocopy of the disclosure letter dated 28 April 2001 addressed by RIL under the same regulations (stock‑exchange inward No. 41315); and (iii) two annexures to the Show Cause Notice – Annexure 1: List of 38 allottee entities, and Annexure 2: photocopy of the disclosure letter dated 28 April 2000 addressed by RIL under Regulation 8(3) of the SEBI (Substantial Acquisition of Shares and Takeovers) Regulations, 1997 (stock‑exchange inward No. 31413)., By letters dated 16 September 2020 and 22 September 2020 the noticees requested full inspection of all documents as requested in their letter dated 14 September 2020 and photocopies of the documents mentioned in paragraphs 4.7(i) and 4.7(ii) above. By a letter dated 23 September 2020 SEBI informed that it was relying only on the said annexures for the purpose of the Show Cause Notice. The noticees submit that, except for the annexures, no other documents are being referred to or relied upon by SEBI, and that SEBI has not granted inspection of all documents, records, files and internal notings, thereby denying a full opportunity to represent their case., The noticees submit that the adjudication proceedings are time‑barred. SEBI is relying only on the disclosure letter dated 28 April 2000 (stock‑exchange inward No. 31413) for the Show Cause Notice, which was issued in February 2011, eleven years after the document became public. Initiation of adjudication proceedings in 2011, seventeen years after the acquisition of the warrants (1994) and eleven years after the acquisition of warrant shares (2000), is unreasonable and bad in law. The Hon'ble Securities Appellate Tribunal in cases such as Mr. Rakesh Kathotia & Ors. v. SEBI (Appeal No. 7 of 2016), Ashok Shivlal Rupani & Anr. v. SEBI (2020), and Sanjay Jethalal Soni v. SEBI (Appeal No. 102 of 2019) set aside penalties on the ground of inordinate delay in initiation of adjudication proceedings., The Hon'ble Supreme Court of India in State of Punjab v. Bhatinda District Co‑op Milk Union Limited [(2007) 11 SCC 363] observed that where no period of limitation is prescribed, the statutory authority must exercise its jurisdiction within a reasonable period, generally within three years and in any event not exceeding five years. In Universal Generics Pvt. Ltd. v. Union of India (1993) the Bombay High Court held that proceeding with adjudication after a ten‑year delay is not just and fair. Similarly, in Bhagwandas S. Tolani v. B.C. Aggarwal (1983) the Bombay High Court held that re‑initiating adjudication eleven years after a show cause notice is a stale matter and cannot be permitted., Accordingly, the noticees submit that initiation of adjudication proceedings by SEBI seventeen years after the acquisition of the warrants and eleven years after the acquisition of warrant shares is unreasonable, time‑barred, and on this ground alone the Show Cause Notice ought to be set aside. The delay prejudices the noticees by depriving them of a full, fair and effective opportunity to present their case, as recognized by the Hon'ble Securities Appellate Tribunal in Ashok Chaudhary v. SEBI (SAT Order dated 5 November 2008).
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The Noticees submit that the delay in issuing the Show Cause Notice is unreasonable, arbitrary and causes substantial prejudice to the Noticees. Initiation of adjudication proceedings after such an inordinate delay is unreasonable, arbitrary and violative of the constitutional guarantee of non‑arbitrariness under Article 14 of the Constitution of India and principles of equity and fairness. Please note that the Securities and Exchange Board of India had filed a criminal complaint being SEBI MA 686 of 2020 before the Hon’ble Securities Appellate Tribunal, Mumbai inter alia for alleged violation of the 1997 Substantial Acquisition of Shares and Takeovers Regulations and, vide order dated 30 September 2020, the same was dismissed by the Hon’ble Securities Appellate Tribunal as being barred by limitation., In view of the above, we submit that the adjudication proceedings sought to be initiated against the Noticees ought to be dropped on this ground alone., Without prejudice, the Show Cause Notice is misconceived and erroneous as Regulation 11(1) of the 1997 Substantial Acquisition of Shares and Takeovers Regulations and Section 15H of the Securities and Exchange Board of India Act are not applicable in the present case., The Show Cause Notice alleges that on account of the Noticees having allegedly violated Regulation 11(1) of the 1997 Substantial Acquisition of Shares and Takeovers Regulations, the Noticees would be liable for monetary penalty under Section 15H of the Securities and Exchange Board of India Act, which provides for penalty inter alia for failure to make a public announcement in accordance with the 1997 Substantial Acquisition of Shares and Takeovers Regulations., The Noticees were exempt from the requirements of Regulation 11(1) of the 1997 Substantial Acquisition of Shares and Takeovers Regulations as the allotment of Warrant Shares was made on a preferential basis, which was exempt under Regulation 3(1)(c) of the 1997 Substantial Acquisition of Shares and Takeovers Regulations at the time of issue of Warrant Shares., Regulation 3(1)(c) of the 1997 Substantial Acquisition of Shares and Takeovers Regulations (in effect in January 2000) clearly provided that acquisition of shares by way of preferential allotments were exempted from public offer requirements subject to specific conditions., In this regard, the Noticees also rely upon the following extract in the Report of the Bhagwati Committee constituted by the Securities and Exchange Board of India, which inter alia observed that the above provision provided an automatic exemption: “The Committee noted that a majority of the automatic exemption cases are pursuant to acquisition through preferential allotment. While such allotments can be made only with the shareholders’ approval, having regard to the low turnout of the minority shareholders in these meetings and the fact that effectively there is no exit option to the shareholders, the Committee felt that a re‑look is required at the automatic exemption in such cases. The Committee recommends that the present exemption for preferential allotment be continued subject to the condition that any resolution for preferential issue should provide for postal ballot to enable greater shareholder participation.” (Emphasis supplied). From the provisions of the 1997 Substantial Acquisition of Shares and Takeovers Regulations and the Report of the Bhagwati Committee, it is clear that the preferential allotments and schemes of merger were automatically exempt from making an open offer at the relevant time under specific exemptions for acquisitions pursuant to a preferential allotment and merger scheme., It is further submitted that Regulations 3(3) and 3(4) of the 1997 Substantial Acquisition of Shares and Takeovers Regulations required only a prior notice and a post‑acquisition report to be filed. The Hon’ble Securities Appellate Tribunal has held that delay or non‑compliance with Regulation 3(3) and Regulation 3(4) did not amount to the exemption not being available. In J. M. Financial & Investment Consultancy Services Ltd. v. Securities and Exchange Board of India (Securities Appellate Tribunal order dated 16 March 2001) and in Diamond Projects v. Securities and Exchange Board of India (Securities Appellate Tribunal order dated 18 May 2004), the Hon’ble Securities Appellate Tribunal held that a breach of this filing requirement cannot affect the exemption under Regulation 3(1)(c) of the 1997 Substantial Acquisition of Shares and Takeovers Regulations., In view of this, it is submitted that Regulation 11(1) of the 1997 Substantial Acquisition of Shares and Takeovers Regulations is not applicable in the present case and the initiation of adjudication proceedings against the Noticees under Section 15H of the Securities and Exchange Board of India Act is untenable and erroneous. Therefore, on this ground as well, the Show Cause Notice and the adjudication proceedings sought to be initiated against the Noticees ought to be dropped., Reference to Section 15H of the Securities and Exchange Board of India Act as amended in 2002 is misplaced. As submitted hereinabove, the initiation of adjudication proceedings against the Noticees under Section 15H of the Securities and Exchange Board of India Act is untenable., Strictly without prejudice the above, it is submitted that the Show Cause Notice refers to Section 15H as amended in 2002 and seeks to impose the enhanced penalty under the amended provisions of the Securities and Exchange Board of India Act which was not applicable on the date of the alleged violation., Section 15H of the Securities and Exchange Board of India Act, as it existed on 7 January 2000, is extracted below: “15H. Penalty for non‑disclosure of acquisition of shares and take‑overs – If any person, who is required under this Act or any rules or regulations made thereunder, fails to (i) disclose the aggregate of his shareholding in the body corporate before he acquires any shares of that body corporate; or (ii) make a public announcement to acquire shares at a minimum price; he shall be liable to a penalty not exceeding five lakh rupees.”, Pursuant to an amendment, with effect from 29 October 2002, the penalty that could be imposed under Section 15H of the Securities and Exchange Board of India Act was increased to Rs 25,00,00,000 or three times the amount of profits made out of failure to make the requisite disclosures, whichever is higher., In light of the rule against ex post facto laws enshrined in Article 20(1) of the Constitution of India, no person can be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of commission of the offence. Penal statutes and penal provisions of any statute cannot be retrospective in nature., Without prejudice to the contention that the Noticees have not violated any law, it is submitted that the penalty imposed, if any, has to be as per the law prevailing on the date of the alleged violation of the 1997 Substantial Acquisition of Shares and Takeovers Regulations, which is the date of conversion of the Warrants, i.e. 7 January 2000. On that date, the un‑amended Section 15H of the Securities and Exchange Board of India Act applied and provided for a maximum monetary penalty of Rs 5,00,000. The Hon’ble Securities Appellate Tribunal, in the matters of D‑Link Holding Mauritius v. Securities and Exchange Board of India (Order dated 1 November 2004) and Rameshchandra Mansukhani v. Securities and Exchange Board of India (Order dated 7 February 2005), has upheld the position that the amount of monetary penalty imposed would be governed by the applicable cap on the day of the alleged breach., In D‑Link Holding Mauritius v. Securities and Exchange Board of India (SAT Order dated 1 November 2004), the Hon’ble Securities Appellate Tribunal held that “The amendment to the Securities and Exchange Board of India Act, 1992 did not contemplate that the enhanced penalties be retrospective in effect. The plain reading of the amendment would indicate that the amendment was to come into effect prospectively and not retrospectively. It is quite possible in some legislation that amendments are made with retrospective effect. But we do not find any such intention on the legislature from the perusal of the amendment.” (Emphasis supplied)., A similar view was taken by the Hon’ble Securities Appellate Tribunal in Rameshchandra Mansukhani NRI v. Securities and Exchange Board of India (SAT Order dated 7 February 2005) where the Tribunal held that “It is fairly conceded that there is nothing to show under the regulation that the regulation was amended with retrospective effect. Penalties unless specifically made retrospective must inevitably be only with effect from the date of amendment. Accordingly we hold that at the relevant time the maximum penalty was Rs 5 lacs.”, In view of the above, it is submitted that the reference in the Show Cause Notice to the amended Section 15H of the Securities and Exchange Board of India Act is irrelevant, misconceived and an erroneous interpretation of the law., Accordingly, we submit that the Learned Adjudicating Officer ought to withdraw the Show Cause Notice and drop the proceedings against the Noticees for the following reasons: (a) the adjudication proceedings are time‑barred and are hit by laches and delays; (b) Regulation 11(1) of the 1997 Substantial Acquisition of Shares and Takeovers Regulations did not apply to the Noticees; (c) the principal charge under Section 15H of the Securities and Exchange Board of India Act is ex‑facie patently erroneous as Section 15H does not apply; and (d) the Show Cause Notice refers to penalty provisions not applicable on the date of the alleged violation., The Noticees will be relying on judicial precedents in support of the submissions made herein. In this regard, we seek an opportunity to make legal submissions on the matter for which the Noticees will be represented by counsel. The Noticees request that no order be passed in the matter without granting an opportunity of a fair personal hearing., The present reply is without prejudice to the Noticees’ contention that they have not been granted full inspection of all documents and an opportunity to defend their case. The proceedings are being conducted in violation of natural justice., This reply is without prejudice to all other rights and contentions of the Noticees, which are expressly reserved and may be raised during the further course of the proceedings and personal hearings. All the rights of the Noticees in this regard are expressly reserved., Subsequently, the Noticees were granted an opportunity of personal hearing on 5 November 2020 through video conference on the Webex platform due to the pandemic. The following persons attended the hearing on behalf of the Noticees: Mr Janak Dwarkadas, Senior Advocate; Mr Rohan Rajadhyaksha, Advocate; Mr Ashwath Rau, Advocate, AZB & Partners; Mr Kashish Bhatia, Advocate, AZB & Partners; Mr Vivek Shetty, Advocate, AZB & Partners; Ms Cheryl Fernandes, Advocate, AZB & Partners; Mr K. R. Raja, Director, Reliance Industries Holding Private Limited; Ms Geeta Fulwadaya, Authorized Representative; Mr Sanjeev Dandekar, Authorized Representative; and Mr Amey Nabar, Advocate, Authorized Representative. The submissions made by the Noticees vide their letter dated 19 October 2020 were reiterated. Further, a list of dates in respect of the reply dated 19 October 2020 and list of dates in respect of documents, along with the compilation of documents, was shared by the Authorized Representatives via email on 5 November 2020. The aforesaid Authorized Representatives requested two weeks’ time for filing of written submissions post hearing. Accordingly, time till 19 November 2020 was granted to the Noticees for the same., Via email and letter dated 19 November 2020, the Authorized Representatives submitted post‑hearing written submissions on behalf of the Noticees along with annexures. The main contentions made therein are reproduced hereunder., Brief facts: (1) On 12 January 1994, Reliance Industries Limited allotted 6,00,00,000 – 14 % Non‑Convertible Secured Redeemable Debentures of Rs 50 each aggregating to Rs 300 crore, having warrants attached to them (Warrants), to 34 allottee entities. The Warrants were detachable and each Warrant entitled its holder to apply for equity shares of Reliance Industries Limited. The NCDs and Warrants were issued after due approval from the shareholders and board of directors of Reliance Industries Limited and were listed on the stock exchanges. (2) The issuance and allotment of NCDs and Warrants (including the approval of the board and shareholders) was completed in January 1994, i.e. before the Securities and Exchange Board of India notified the Substantial Acquisition of Shares and Takeovers Regulations, 1997. In fact, the issue and allotment were completed even before SEBI had notified the Substantial Acquisition of Shares and Takeovers Regulations, 1994 (the regulations which were replaced by the 1997 regulations). (3) On 7 January 2000, pursuant to the exercise of the option on the Warrants, the Board of Directors of Reliance Industries Limited approved the allotment of 12 crore equity shares to the 38 holders of the Warrants. (4) On 28 April 2000, Reliance Industries Limited filed the disclosure under Regulation 8(3) of the 1997 Takeover Regulations and intimated stock exchanges that the holders of the Warrants were persons acting in concert with the promoters of Reliance Industries Limited. A copy of the disclosure dated 28 April 2000 is annexed as Annexure‑1. (5) On 16 April 2010, the Noticees received a letter from SEBI stating that pursuant to a complaint, SEBI had conducted an investigation into alleged irregularities in the issue of 12 crore equity shares by Reliance Industries Limited to 38 allottee entities in January 2000, consequent to the exercise of the option on Warrants. The letter inter alia alleged that promoters and persons having control over Reliance Industries Limited and the 38 allottee entities that were persons acting in concert during 1999‑2000 had violated Regulation 11(1) of the 1997 Takeover Regulations. A copy of the letter dated 16 April 2010 is annexed as Annexure‑2. (6) By an order dated 15 December 2010, an Adjudicating Officer was appointed under Section 15(I) of the Securities and Exchange Board of India Act, 1992 to enquire into and adjudicate the alleged violation of the 1997 Takeover Regulations by the Noticees. (7) A Show Cause Notice was issued on 24 February 2011 by SEBI to the Noticees under Rule 4 of the SEBI (Procedure for Holding Inquiry and Imposing Penalties by Adjudicating Officer) Rules, 1995. The Noticees were called upon to show cause as why inquiry should not be held and penalty not be imposed for alleged contravention of Regulation 11(1) of the 1997 Takeover Regulations. A copy of the Show Cause Notice is annexed as Annexure‑3. (8) Thereafter, the Noticees filed a reply on 10 June 2011 raising objections to the Show Cause Notice, inter alia stating that: (a) the Show Cause Notice was vitiated on grounds of gross and unexplained delay and laches on SEBI’s part in issuing the notice, 17 years after the issuance of the Warrants and 11 years after the acquisition of the equity shares by the Noticees; (b) the application of the 1997 Takeover Regulations to the issue of Warrants and subsequent conversion of Warrants into shares was misplaced and the 1997 Takeover Regulations could not be applied retrospectively; (c) the acquisition of equity shares was in any event exempted under Regulation 3(1)(c) of the 1997 Takeover Regulations; and (d) the Show Cause Notice seeks to apply an enhanced penalty under Section 15H of the SEBI Act as amended on 29 October 2002 to an alleged infraction of the 1997 Takeover Regulations which took place on 7 January 2000, which is impermissible in law. The Noticees also called upon the Adjudicating Officer to first decide the aforesaid fundamental issues. A copy of the reply dated 10 June 2011 is annexed as Annexure‑4., The Noticees thereafter filed a consent application on 5 August 2011 in relation to the letter dated 16 April 2010 and the Show Cause Notice on the basis of the SEBI Circular dated 20 April 2007., On account of the gross and unexplained delay by SEBI in issuing the Show Cause Notice, two of the Noticees, Uditi Mercantile Private Limited and Pams Investments & Trading Co. Pvt. Ltd., filed appeals (being Appeal No. 16 of 2002 and Appeal No. 22 of 2002) before the Hon’ble Securities Appellate Tribunal against the order dated 15 December 2010 appointing an Adjudicating Officer. By the appeals, the two Noticees sought (a) quashing and setting aside of the order dated 15 December 2010 passed by the Executive Director, SEBI appointing an Adjudicating Officer to conduct proceedings under Chapter VI‑A of the SEBI Act; and (b) interim reliefs, being a stay on the above order and any proceedings initiated pursuant thereto until disposal of the appeal. The appeals were disposed by a common order dated 8 April 2013 passed by the Securities Appellate Tribunal, with the direction that once the Board has taken a view on the consent proceedings preferred by the appellants, the adjudicating officer of the Board may decide the preliminary objections taken by the appellants in the adjudication proceedings in accordance with law. Accordingly, as per the order dated 8 April 2013, the Adjudicating Officer at the first instance is required to adjudicate upon the preliminary objections raised by the Noticees., On 18 May 2020, SEBI, by email, rejected the settlement application filed by the Noticees. A copy of the email dated 18 May 2020 is annexed as Annexure‑6., On 22 June 2020, SEBI addressed a letter to the Noticees (received on 3 July 2020), informing the Noticees that an Adjudicating Officer had been appointed to enquire into and adjudicate the alleged violation of the 1997 Takeover Regulations. The Noticees were granted a period of seven days to make their submissions in response. A copy of the letter dated 22 June 2020 is annexed as Annexure‑7., On 16 July 2020, SEBI filed a Criminal Complaint dated 16 July 2020 under Sections 24(1) and 27 of the SEBI Act, inter alia, in respect of the same alleged violations of the 1997 Takeover Regulations referred to in the Show Cause Notice. This Criminal Complaint was dismissed by the Hon’ble Securities Appellate Tribunal on 30 September 2020 on account of being barred by limitation. A copy of the order dated 30 September 2020 is annexed as Annexure‑8., Between July 2020 and September 2020, the Noticees made several requests for inspection and copies of all documents, records and files with respect to the Show Cause Notice. The request was rejected by SEBI, and on 15 September 2020, the Noticees were granted inspection merely of the intimations dated 25 April 2000 and 28 April 2001 from Reliance Industries Limited to the stock exchanges under the 1997 Takeover Regulations and the two documents annexed to the Show Cause Notice. Copies of the intimations dated 25 April 2000 and 28 April 2001 were not provided to the Noticees. All correspondences exchanged between SEBI and the Noticees on the issue of inspection are annexed as Annexure‑9., On 25 September 2020, SEBI addressed an email to the Noticees’ Advocate, granting time to file reply to the Show Cause Notice by 19 October 2020. A copy of the email dated 25 September 2020 is annexed as Annexure‑10., On 19 October 2020, the Noticees’ Advocate replied to the Show Cause Notice raising preliminary objections as well as an objection on the ground of violation of principles of natural justice as the Noticees had not been given full inspection of all documents in the power, custody and possession of SEBI on the subject matter of the alleged violations of the 1997 Takeover Regulations referred to in the Show Cause Notice, which was contrary to settled law on the subject. The Noticees also requested a personal hearing in the matter., Personal hearing was provided to the Noticees on 5 November 2020, pursuant to which the Adjudicating Officer granted the Noticees an opportunity to file their written submissions by 19 November 2020. During the course of the arguments, the Noticees relied upon two lists of dates and events, which are annexed as Annexure‑18. The Noticees are accordingly making these submissions without prejudice to their contention that SEBI has not granted inspection of all documents, records and files with, and internal notings of, SEBI in respect of the Show Cause Notice, thereby denying full opportunity to the Noticees to represent their case. These submissions are in addition to the correspondence resting with the letter dated 19 October 2020 and the submissions made at the personal hearing held on 5 November 2020, which shall be deemed to be a part of these submissions., The Show Cause Notice is vitiated by principles of limitation, delay and laches. It is submitted that the adjudication proceedings are barred by limitation and/or unreasonable and unexplained delay and laches. (a) The issue and allotment of the NCDs and Warrants was approved by the shareholders of Reliance Industries Limited and by the board of directors of Reliance Industries Limited, and the issue of these securities, including the right to acquire shares, was completed in 1994. Further, both the NCDs and the Warrants were listed and therefore, the fact of issue of these NCDs and Warrants was known to stock exchanges (which approved their listing and were provided the relevant resolutions) and the public. Thus, SEBI is deemed to have been aware of the fact of issue of these NCDs and Warrants from 1994. (b) The only document relied upon by SEBI for the purpose of the Show Cause Notice is the disclosure dated 28 April 2000 along with annexures addressed by Reliance Industries Limited under Regulation 8(3) of the 1997 Substantial Acquisition of Shares and Takeovers Regulations (bearing stock exchange inward No. 31413). The issuance and acquisition of equity shares pursuant to the exercise of Warrants was admittedly intimated to the stock exchanges even in April 2000. Therefore, it is undisputable that the information relating to the issue of NCDs and Warrants was known publicly since 1994, and the information in relation to exercise of the Warrants and the issuance of equity shares by Reliance Industries Limited upon conversion of the Warrants was public knowledge and therefore, to SEBI’s knowledge, at least since the year 2000., Despite this, the Show Cause Notice has been issued by SEBI after a gross and unexplained delay (i.e. after a period of 17 years from the issuance of the Warrants in 1994 and 11 years from the acquisition of the equity shares upon conversion of Warrants in 2000). While the Noticees have also answered the Show Cause Notice on merits, there is no explanation whatsoever in the Show Cause Notice for it being issued after such an inordinate and gross delay. The issuance of the Show Cause Notice after such an inordinate and gross delay would not only defeat the purpose of the SEBI Act and the 1997 Takeover Regulations but also prejudice the right to natural justice of the Noticees., Although the provisions of the Limitation Act, 1963 may not be applicable, as per settled law, a Show Cause Notice cannot be issued after such a long and inordinate delay. Such a notice is barred by principles of limitation, delay and laches. In fact, as aforesaid, the Criminal Complaint dated 16 July 2020 filed by SEBI under Sections 24(1) and 27 of the SEBI Act, inter alia, in respect of the same alleged violations of the 1997 Takeover Regulations referred to in the Show Cause Notice was dismissed by the Hon’ble Securities Appellate Tribunal by an order dated 30 September 2020 on account of it being barred by limitation., In support of the aforesaid proposition on limitation, delay and laches, the following judgments may be noted: State of Punjab v. Bhatinda District Co‑op Milk Union Limited (2007) 11 SCC 363 (paragraphs 17 and 18); Universal Generics Pvt. Ltd. v. Union of India 1993 ECR 190 (Bombay) (paragraph 2); Bhagwandas S. Tolani v. B.C. Aggarwal and Others 1983 ELT 44 (Bombay) (paragraph 8); Mr Rakesh Kathotia & Ors. v. SEBI (Appeal No. 7 of 2016 decided on 27 May 2019) SAT (paragraphs 23 and 24); Ashok Shivlal Rupani & Anr. v. SEBI (Appeal No. 417 of 2018 decided on 22 August 2019) SAT (paragraphs 6 to 9); Sanjay Jethalal Soni v. SEBI (Appeal No. 102 of 2019 decided on 14 November 2019) SAT (paragraphs 11 to 14); Ashok Chaudhary v. SEBI (Appeal No. 69 of 2008 decided on 5 November 2008) SAT (paragraph 9)., It is submitted that initiation of adjudication proceedings by SEBI seventeen years after the issuance of the Warrants and eleven years after the acquisition of shares upon exercise of Warrants is unreasonable, time‑barred, and on this ground alone the Show Cause Notice ought to be set aside. The initiation of adjudication proceedings after such an inordinate delay causes grave prejudice to the Noticees as the Noticees have been deprived of a full, fair and effective opportunity of presenting their case., The delay in issuing the Show Cause Notice is unreasonable, arbitrary and causes grave prejudice to the Noticees. Initiation of adjudication proceedings after such an inordinate delay is unreasonable, arbitrary and violative of the constitutional guarantee of non‑arbitrariness under Article 14 of the Constitution of India and principles of equity and fairness., In view of the above, it is submitted that the adjudication proceedings sought to be initiated against the Noticees ought to be dropped on this ground alone., The provisions of the 1997 Takeover Regulations are not applicable to the issue of Warrants and conversion of Warrants. (a) The issue and allotment of the NCDs and Warrants was approved by the shareholders of Reliance Industries Limited and by the board of directors of Reliance Industries Limited, and the issue of these securities, including the right to acquire shares, was completed before SEBI notified the Substantial Acquisition of Shares and Takeovers Regulations, 1994 on 4 November 1994 or the 1997 Takeover Regulations on 20 February 1997. (b) While the Warrants were exercised and shares allotted on 7 January 2000, the issue of NCDs and the Warrants was completed in January 1994 (i.e. before SEBI had notified the 1997 Takeover Regulations). (c) It is also relevant to note that the Explanation to Regulation 3(4) of the 1997 Takeover Regulations, which provided that the relevant date in case of securities which are convertible into shares shall be the date of conversion of such securities, was inserted with effect from 9 September 2002. (d) In other words, the said provision was not in existence on 7 January 2000 when the Warrants were converted into equity shares of Reliance Industries Limited. It is submitted that the said Explanation does not apply retrospectively and neither could the Noticees have anticipated that such an Explanation would be inserted after more than two years in the future on 9 September 2002. (e) Therefore, the issue of Warrants and the allotment of shares on conversion of Warrants were not subject to the provisions of the 1997 Takeover Regulations., The acquisition of shares by the Noticees was exempt under Regulation 3(1)(c) of the 1997 Takeover Regulations. (a) Pursuant to the exercise of the Warrants, the equity shares of Reliance Industries Limited were acquired by the Noticees on 7 January 2000. As on that date, Regulation 3(1)(c) of the 1997 Takeover Regulations was a part of the 1997 Takeover Regulations (Regulation 3(1)(c) was deleted with effect from 9 September 2002). (b) Regulation 3(1)(c) provided that nothing in Regulations 10, 11 or 12 of the 1997 Takeover Regulations shall apply to a preferential allotment made in pursuance of the Companies Act, 1956. The exemption under Regulation 3(1)(c) applied to the acquisition of Reliance Industries Limited equity shares pursuant to exercise of the Warrants. (c) In this regard, the Noticees also rely upon the following extract in the Report of the Bhagwati Committee constituted by SEBI, which inter alia observed that the above provision provided an automatic exemption: “The Committee noted that a majority of the automatic exemption cases are pursuant to acquisition through preferential allotment. While such allotments can be made only with the shareholders’ approval, having regard to the low turnout of the minority shareholders in these meetings and the fact that effectively there is no exit option to the shareholders, the Committee felt that a re‑look is required at the automatic exemption in such cases. The Committee recommends that the present exemption for preferential allotment be continued subject to the condition that any resolution for preferential issue should provide for postal ballot to enable greater shareholder participation.” (Emphasis supplied). (d) From the provisions of the 1997 Takeover Regulations and the Report of the Bhagwati Committee, it is clear that the preferential allotments and schemes of merger were automatically exempt from making an open offer at the relevant time under specific exemptions for acquisitions pursuant to a preferential allotment and merger scheme. (e) The 1997 Takeover Regulations also provided for certain disclosures to be made before and after the acquisition of shares under Regulation 3(3) and Regulation 3(4). Even though it is not SEBI’s case in the Show Cause Notice that because the requisite disclosures under Regulation 3(3) and Regulation 3(4) were not made, the exemption is not available, it is nevertheless submitted that such a contention on SEBI’s part would be misconceived since it is settled law that the exemption would be available even if the disclosure was not made.
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From the provisions of the 1997 Takeover Regulations and the Report of the Bhagwati Committee, it is clear that preferential allotments and schemes of merger were automatically exempt from making an open offer at the relevant time under specific exemptions for acquisitions pursuant to a preferential allotment and merger scheme. In view of this, Regulation 11(1) of the 1997 Takeover Regulations is not applicable in the present case and the initiation of adjudication proceedings against the Noticees under Section 15H of the Securities and Exchange Board of India Act is untenable and erroneous. Therefore, on this ground as well, the Show Cause Notice and the adjudication proceedings sought to be initiated against the Noticees ought to be dropped., The Show Cause Notice refers to Section 15H as amended on 29 October 2002 in the context of an alleged infraction on 7 January 2000. A bare reading of the Show Cause Notice reveals that the alleged infraction of the 1997 Takeover Regulations was on account of allotment of shares on 7 January 2000. However, in paragraph 5 of the Show Cause Notice, after referring to Section 15H of the SEBI Act as it stood up to 29 October 2002, SEBI also referred to Section 15H of the SEBI Act as amended on that date., Section 15H of the SEBI Act as it stood up to 29 October 2002 provided: “Penalty for non‑disclosure of acquisition of shares and take‑overs – If any person, who is required under this Act or any rules or regulations made thereunder, fails to (i) disclose the aggregate of his shareholding in the body corporate before he acquires any shares of that body corporate; or (ii) make a public announcement to acquire shares at a minimum price; he shall be liable to a penalty not exceeding five lakh rupees.”, Section 15H of the SEBI Act as amended on 29 October 2002 provided: “Penalty for non‑disclosure of acquisition of shares and take‑overs – If any person, who is required under this Act or any rules or regulations made thereunder, fails to (i) disclose the aggregate of his shareholding in the body corporate before he acquires any shares of that body corporate; or (ii) make a public announcement to acquire shares at a minimum price; (iii) make a public offer by sending a letter of offer to the shareholders of the concerned company; or (iv) make payment of consideration to the shareholders who sold their shares pursuant to the letter of offer, he shall be liable to a penalty of twenty‑five crore rupees or three times the amount of profits made out of such failure, whichever is higher.”, While there is no question of violation of the 1997 Takeover Regulations, Section 15H of the SEBI Act as amended on 29 October 2002 can have no application to an alleged infraction which took place much prior to the amendment on 7 January 2000. Article 20(1) of the Constitution of India provides: “No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.” (Emphasis supplied), Accordingly, the application of Section 15H of the SEBI Act as amended on 29 October 2002 to the Noticees in the context of the alleged infraction dated 7 January 2000 would be ex facie unconstitutional and impermissible. Without prejudice to the contention that the Noticees have not violated any law, the penalty, if any, must be as per the law prevailing on the date of the alleged violation of the 1997 Takeover Regulations, i.e., the date of acquisition of shares upon exercise of the warrants, 7 January 2000. On that date, the un‑amended Section 15H of the SEBI Act applied and provided for a maximum monetary penalty of Rs 5,00,000., It is settled law that amendments to the SEBI Act to enhance penalties are prospective and not retrospective and therefore not applicable to alleged infringements committed prior to the date of the amendment. In support of this proposition, the following judgments may be noted: D‑Link Holding Mauritius v. SEBI (Appeal No. 70 of 2004 decided on 1 November 2004) – Securities Appellate Tribunal (paragraph 3); and Ramchandra Mansukhani v. SEBI (Appeal No. 151 of 2004 decided on 7 February 2005) – Securities Appellate Tribunal (paragraphs 20 to 22)., In view of the above, the reference in the Show Cause Notice to the amended Section 15H of the SEBI Act is irrelevant, misconceived and erroneous., The Noticees were not provided with a full inspection of documents in complete violation of the principle of natural justice. The Supreme Court of India has held that the principles of natural justice necessitate that inspection of all documents must be provided in order to give a fair opportunity for any noticee to defend itself., In SEBI v. Price Waterhouse & Co. and others (Civil Appeal Nos. 6003‑6004 of 2012), the Supreme Court of India directed SEBI to provide all statements recorded and inspection of all documents collected during the course of investigation to the respondents., Accordingly, the Noticees are entitled to seek inspection of all documents, records and files, including internal notings of SEBI, in respect of the Show Cause Notice, including without limitation the reports and papers relating to the investigation conducted by SEBI, namely: (i) the report submitted by Mr. Y. H. Malegam, Chartered Accountant appointed by SEBI; (ii) the brief for opinion prepared by SEBI for obtaining the written opinion of the Honorable Justice B. N. Srikrishna (Retd.); and (iii) the written opinion issued by Justice B. N. Srikrishna (Retd.) upon verification of facts and report by Mr. Malegam., SEBI’s reliance on the judgment of the Securities Appellate Tribunal in Shruti Vora v. SEBI is totally misconceived. In the present case, the Show Cause Notice was preceded by a letter dated 16 April 2010 addressed by SEBI, in which SEBI stated that an investigation had been conducted in 2002 in relation to the alleged infraction by the Noticees of the 1997 Takeover Regulations referred to in the Show Cause Notice and, inter alia, it had been found that there was a violation of the 1997 Takeover Regulations. The Show Cause Notice was issued only thereafter., Therefore, since SEBI’s letter dated 16 April 2010 concluded that there had been a violation of the 1997 Takeover Regulations, the Noticees were entitled to all documents incidental to or connected with that letter. This distinguishing feature was entirely absent in Shruti Vora v. SEBI and therefore that judgment does not apply to the present case., Based on principles of natural justice and settled law in the context of ensuring a fair hearing before a judicial or quasi‑judicial authority, including decisions of the Supreme Court of India, the Noticees were entitled to inspect all material collected by SEBI in relation to the matters connected with the Show Cause Notice to be able to effectively respond to it., In view of the aforesaid, it is absolutely necessary in the interest of justice, equity and good conscience that the Learned Adjudicating Authority be pleased to pass an order dismissing the adjudicating proceedings initiated against the Noticees by the Show Cause Notice, especially in view of the settled position in law on the proposition of delay and laches as set out hereinabove., On 7 December 2020, the Authorized Representatives of the Noticee informed that one of the Noticees, Mr. R. H. Ambani, had passed away on 27 July 2020 at Ahmedabad, and a copy of the death certificate was enclosed. Subsequently, on 14 December 2020, clarification was sought from the Authorized Representatives of the Noticees regarding compliance with Regulations 3(1)(c), 3(3) and 3(4) of the Takeover Regulations in the context of the present matter, as well as details of natural guardians of certain Noticees who were minors at the time of the alleged violations and any comments of those guardians. On 22 December 2020, the Authorized Representatives provided a reply to the aforesaid email. The main contentions made therein are as follows., Regulation 3(1)(c) of the SEBI Takeover Regulations, 1997 (as it stood on 7 January 2000) provided: “Nothing contained in Regulations 10, Regulation 11 and Regulation 12 of these regulations shall apply to: (c) preferential allotment, made in pursuance of a resolution passed under Section 81(1A) of the Companies Act, 1956, provided that (i) board resolution in respect of the proposed preferential allotment is sent to all the stock exchanges on which the shares of the company are listed for being notified on the notice board; (ii) full disclosure of the identity of the class of the proposed allottee(s) is made, and if any of the proposed allottee(s) is to be allotted such number of shares as would increase his holding to 5 % or more of the post‑issued capital, then the price, identity, purpose and reason for such allotment, consequential changes in the board of directors, voting rights, shareholding pattern and whether such allotment would result in change in control are all disclosed in the notice of the General Meeting called for the purpose of consideration of the preferential allotment.”, Regulation 3(3) of the SEBI Takeover Regulations, 1997 (as it stood on 7 January 2000) provided: “In respect of acquisitions under clauses (c), (e), (h) and (i) of sub‑regulation (1), the stock exchanges where the shares of the company are listed shall, for information of the public, be notified of the details of the proposed transactions at least four working days in advance of the date of the proposed acquisition, in case of acquisition exceeding 5 % of the voting share capital of the company.”, Regulation 3(4) of the SEBI Takeover Regulations, 1997 (as it stood on 7 January 2000) provided: “In respect of acquisitions under clauses (a), (b), (c), (e) and (i) of sub‑regulation (1), the acquirer shall, within 21 days of the date of acquisition, submit a report along with supporting documents to the Board giving all details in respect of acquisitions which (taken together with shares or voting rights, if any, held by him or by persons acting in concert with him) would entitle such person to exercise 15 % or more of the voting rights in a company.”, The above regulations were applicable for acquisition pursuant to preferential allotment of equity shares and convertible instruments. If a convertible instrument was issued and allotted pursuant to a preferential allotment after the SEBI Takeover Regulations, 1997 came into force, the filings under Regulation 3(1)(c) were required to be made by the issuing company, and the pre‑acquisition filing under Regulation 3(3) and the post‑acquisition filing under Regulation 3(4) were required to be made by the acquirer., The facts in the case of the Noticees are as follows: (a) The convertible instrument, namely the warrants, were issued and allotted in January 1994, when neither the SEBI Takeover Regulations, 1994 nor the SEBI Takeover Regulations, 1997 had come into force. (b) In January 2000, the warrants were converted into equity shares by the holders., It is clear that there was no issue and allotment of convertible instruments post the enactment of the SEBI Takeover Regulations, 1994/1997. When there is no issue and allotment of a convertible instrument, there cannot be any question of filing the above reports under Regulations 3(1)(c), 3(3) and 3(4). The 1997 Takeover Regulations, as they stood in January 2000, envisaged filings only when convertible instruments were issued and allotted. A mere conversion of a warrant into equity shares pursuant to a pre‑existing right held since 1994 did not trigger the filing requirements under Regulation 3., Even otherwise, it is submitted that in 1994: (a) the details of issue and allotment of convertible warrants were intimated to the stock exchanges; (b) the warrants were listed on the stock exchanges; (c) the public and shareholders were in full knowledge that before January 2000 these warrants were convertible into equity shares. The purpose of the filing is to make the public and shareholders aware of the issuance., The Explanation inserted in September 2002 to Regulation 3(3) and Regulation 3(4) states: “For the purposes of sub‑regulations (3) and (4), the relevant date in case of securities which are convertible into shares shall be the date of conversion of such securities.” After insertion, the position on filing of reports under Regulation 3 was as follows: (a) When a convertible instrument is issued on a preferential basis, the company makes the filing under Regulation 3(1)(c). (b) At the time of issue and allotment, the acquirer is not required to make any filing. (c) When the acquirer decides to exercise the conversion option, prior to conversion the acquirer must file the pre‑acquisition notice under Regulation 3(3), and upon conversion and acquisition of equity shares the acquirer must file the post‑acquisition report under Regulation 3(4)., Therefore, prior to the insertion of the Explanation in September 2002, the acquirer had to file the notice and the report at the time of acquiring the convertible instrument; the acquirer was not required to file any notice or report at the time of conversion. After insertion, the requirement of filing the notice under Regulation 3(3) and the report under Regulation 3(4) shifted to the time when the acquirer actually exercises the conversion option and acquires the equity shares., In the case of the Noticees: (a) No convertible instruments were acquired by the acquirers in January 2000 (they were acquired as early as January 1994); therefore there was no requirement to file the pre‑acquisition notice under Regulation 3(3) and the post‑acquisition report under Regulation 3(4). (b) The acquirers converted the warrants into equity shares in January 2000; therefore there was no requirement to file the pre‑ and post‑acquisition notice/report for conversion. Had the conversion occurred after September 2002, the filing would have been required., It cannot be denied that the acquirers would not have been aware of an Explanation which was to be inserted with effect from September 2002 and therefore did not file the pre‑acquisition notice and post‑acquisition report at the time of conversion in January 2000., Filing of forms by Reliance Industries Limited and the then promoter group of Reliance Industries Limited under Regulation 3(3) and Regulation 3(4) of the SEBI Takeover Regulations, 1997: (a) Reliance Industries Limited disclosed the details of issue and allotment of convertible warrants to the stock exchanges in 1994; the warrants were listed on the stock exchanges. (b) Consequently, there was no need for the promoter group to have filed any notice or report under Regulation 3(3) or Regulation 3(4). Accordingly, no notice or report has been filed to date under those regulations., Non‑filing does not invalidate the exemption: Without prejudice to the above contentions, even assuming (without admitting) that the notice and report under Regulation 3(3) and Regulation 3(4) respectively had to be filed by the promoter group, any non‑filing thereof does not take away the exemption from making an open offer. This is settled law as held in J. M. Financial & Investment Consultancy Services Ltd v. SEBI (Appeal No. 31 of 2000 decided on 16 March 2001)., Details of the natural guardians of the following Noticees (who were minors) at the relevant time i.e., January 2000 are: 1. Mr. Akash M. Ambani – natural guardian Mr. Mukesh D. Ambani; 2. Mr. Jayanmol Ambani – natural guardian Mr. Anil D. Ambani; 3. Ms. Isha M. Ambani – natural guardian Mr. Mukesh D. Ambani; 4. Mr. Vikram D. Salgaokar – natural guardian Mr. Dattaraj Salgaocar; 5. Ms. Isheta D. Salgaokar – natural guardian Mr. Dattaraj Salgaocar; 6. Ms. Nayan Tara B. Kothari – natural guardian Mr. Bhadrashyam Kothari., Subsequently, on 4 January 2021, the Authorized Representatives of the Noticees enclosed a copy of a letter dated 4 January 2021, wherein they wrote on behalf of and under instructions from Reliance Industries Holding Private Limited (representing the Noticees) that the Show Cause Notice was issued to the Noticees on 24 February 2011 on the basis of disclosures made by Reliance Industries Limited to the stock exchanges in the year 2000 and alleged that the Noticees, as persons acting in concert, had collectively acquired a 6.83 % stake on 7 January 2000 in Reliance Industries Limited, pursuant to the exercise of options on warrants issued by Reliance Industries Limited to the Noticees in January 1994., Seventeen years after the acquisition of the warrants (1994) and eleven years after the acquisition of shares and filings (2000), the Show Cause Notice sought to initiate adjudication proceedings against the Noticees only with respect to the alleged contravention of Regulation 11(1) of the SEBI (Substantial Acquisition of Shares and Takeovers) Regulations, 1997. Entity Communications Private Limited (representing few of the Noticees) filed a reply on 10 June 2011 raising preliminary objections to the Show Cause Notice, inter alia stating that the Show Cause Notice was vitiated on grounds of gross and unexplained delay and laches on SEBI’s part in issuing the Show Cause Notice, 17 years after the issuance of the warrants and 11 years after the acquisition of the equity shares. The Noticees requested that the preliminary objections be decided by the learned Adjudicating Officer., Being aggrieved by the time‑barred and highly belated initiation of the proceedings, the Noticees filed Appeals No. 16 of 2012 and No. 22 of 2012 before the Securities Appellate Tribunal. The Noticees impugned the initiation of adjudication proceedings and appointment of the Adjudicating Officer on the following grounds: (a) The passing of the impugned order and initiation of adjudication proceedings are barred by limitation and/or principles analogous thereto, as the warrants were issued in 1994, converted on 7 January 2000, and the impugned order was passed in December 2010, after a delay of almost 16 years from the issuance of the warrants, 10 years from the conversion, and 9 years after the information was specifically provided to the Respondent in February 2002. It is settled law that where no period for limitation is prescribed in a statute for initiation of any proceedings, the same ought to be initiated within a reasonable time. (b) The delay in initiation of proceedings gives scope for bias, mala‑fide conduct and misuse of power, rendering the proceedings non‑maintainable and liable to be quashed. (c) The delay deprives a noticee of a fair trial and the constitutional right of natural justice, as essential witnesses may not be available, crucial evidence may be lost, and memories may have faded. The test is whether the ability of the party to make a full answer and defence and to have a fair hearing is compromised. (d) The impugned order gives no justification or explanation for the delay, making it unfair and unreasonable to permit the Respondent to continue the proceedings, amounting to a gross miscarriage of justice and infringement of constitutional rights. (e) The impugned order amounts to a colourable exercise of power by a quasi‑judicial authority and is illegal, bad in law and perverse, and therefore ought to be quashed., The order dated 8 April 2013 (2013 SAT Order) passed by the Securities Appellate Tribunal disposed of the above appeals. For convenience, the relevant parts are reproduced. By its reply dated 10 June 2011 to the show‑cause notice, the appellants raised preliminary issues relating to adjudication proceedings being time‑barred and unreasonable. The learned senior counsel for the appellants submitted that the initiation of adjudication proceedings by the Board, seventeen years after the acquisition of warrants and eleven years after the acquisition of shares, is unreasonable, time‑barred and the show‑cause notice ought to be set aside on this ground alone., Shri Darius Khambatta, learned Advocate General appearing on behalf of the Board, referred to submissions made in the affidavit of the Respondent‑Board to oppose admission of the appeals, specifically paragraph 13 of the affidavit, wherein it was stated that this issue had been raised by the appellants before the adjudicating officer and ought to be left to be decided by the adjudicating officer. The minutes of the personal hearing on 17 October 2011 recorded that the Noticees submitted that consent applications had been filed in relation to the present proceedings and, at this stage, they would not wish to make submissions on the merits. They requested that the proceedings be kept in abeyance pending the final decision of the consent application and that the preliminary submissions dated 10 June 2011 be decided first before the matter is taken up for a decision on merits after the consent proceedings., The Tribunal held that this was not the stage for its intervention. The adjudicating officer was not in a position to give a ruling on the preliminary objections as the consent proceedings were pending, and the appellants had requested that the matter be taken up after the consent proceedings concluded. Accordingly, the appeals were disposed of with a direction that once the Board has taken a view on the consent proceedings, the adjudicating officer may decide the preliminary objections in accordance with law., In view of the disposal of the consent proceedings, the adjudication proceedings against the Noticees were resumed by letters dated 22 June 2020 (received by the Noticees on 3 July 2020). Through various correspondence, the Noticees requested inspection of all documents, records, files and internal notings of SEBI in respect of the Show Cause Notice. SEBI provided inspection only of the annexures to the Show Cause Notice, being stock‑exchange filings made by Reliance Industries Limited in 2000, and informed that SEBI was relying upon only those annexures for the purpose of the Show Cause Notice., The Noticees thereafter filed a reply dated 19 October 2020 to the Show Cause Notice, referring to the 2013 SAT Order and reiterating their preliminary submissions that (i) the adjudication proceedings are barred by limitation; (ii) the initiation of adjudication proceedings in 2011, seventeen years after the acquisition of the warrants (1994) and eleven years after the acquisition of shares, is unreasonable and bad in law; and (iii) the adjudication proceedings sought to be initiated against the Noticees ought to be dropped on this ground alone., The Noticees appeared during the oral hearing held on 5 November 2020 and, in view of the 2013 SAT Order, argued their case on the preliminary issues. They submitted that the Adjudicating Officer is expected to decide and give his ruling on the preliminary issue in compliance with the 2013 SAT Order. The Noticees filed written submissions on 19 November 2020, once again referencing the 2013 SAT Order and reiterating the aforesaid preliminary submissions. They emphasized that, as per the 2013 SAT Order, the Adjudicating Officer at the first instance is required to adjudicate upon the preliminary objections raised by the Noticees., We submit that the 2013 SAT Order is final and binding. In compliance with the 2013 SAT Order, it is incumbent upon the Adjudicating Officer to first give a decision on the preliminary issues. Notice that in compliance with the 2013 SAT Order, the Noticees have filed replies and made oral submissions primarily on the preliminary issues.
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Arguments were made on behalf of the Noticees on merits of the matter without prejudice to: (a) the preliminary objections raised, which relate to your jurisdiction and go to the root of the matter under adjudication; and (b) the submission that such preliminary objections must first be decided. This was done only upon your indicating that no further opportunity would be given for personal hearing in the matter., From a perusal of the 2013 Securities Appellate Tribunal Order, it emerges that the Tribunal did not think it fit to intervene in this matter at that stage and give its ruling on the preliminary objections raised by the Noticees in view of the pendency of the consent proceedings and on account of the request made by the Noticees to the Adjudicating Officer that the matter be taken up for hearing only upon conclusion of the consent proceedings., The 2013 Securities Appellate Tribunal Order was passed in the following conspectus of facts: a. As on that day, the consent proceedings were pending, b. Had these consent proceedings culminated in a settlement, the matter would be at an end, and there would be no occasion for the Adjudicating Officer to deal with the Show Cause Notice any further. It was obvious that only if the consent proceedings did not result in a settlement would the occasion to pass an order by the Adjudicating Officer arise., Correctly interpreted and read in the context of the direction contained in paragraph 4 of the 2013 Securities Appellate Tribunal Order, no discretion was left to the Adjudicating Officer whether he should or should not decide the preliminary objections at the threshold., It is our respectful submission that the preliminary objections with regard to delay, laches, denial of natural justice and colourable exercise of power in issuing the Show Cause Notice are based on incontrovertible and unassailable facts. In view thereof, it is respectfully submitted that the preliminary objections must and ought to be decided preliminary to any adjudication of the merits since otherwise the word preliminary will lose all significance and the direction contained in paragraph 4 of the 2013 Securities Appellate Tribunal Order would be defeated. Since the preliminary objections go to the root of the matter, they must be decided as a preliminary issue., In the above circumstances, may we earnestly request you to render a ruling on the preliminary objections, which if decided in favour of the Noticees will put an end to the entire proceeding and if not, leave it open to the Noticees to pursue their remedies under law. We look forward to receiving a confirmation in this behalf as soon as possible. All the rights of the Noticees in this regard are expressly reserved., I have carefully examined the material available on record and the submissions made by the Noticees. The issues that arise for consideration in the present case are: I. Whether the Noticees have violated the provisions of Regulation 11(1) of the Takeover Regulations? II. Does the violation, if established, attract monetary penalty under Section 15H of the Securities and Exchange Board of India Act, 1992? III. If yes, what would be the monetary penalty that can be imposed upon the Noticees, taking into consideration the factors mentioned in Section 15J of the Securities and Exchange Board of India Act, 1992 read with Rule 5(2) of the Rules?, Before I proceed with the matter, it is pertinent to mention the relevant legal provisions alleged to have been violated by the Noticees and the same are reproduced below: Takeover Regulations – Consolidation of holdings 11(1) No acquirer who, together with persons acting in concert with him, has acquired, in accordance with the provisions of law, 15 per cent or more but less than seventy five per cent (75%) of the shares or voting rights in a company, shall acquire, either by himself or through persons acting in concert with him, additional shares or voting rights entitling him to exercise more than 5 per cent of the voting rights in any financial year ending on 31 March unless such acquirer makes a public announcement to acquire shares in accordance with the regulations., Before I proceed to deal with the matter on merits, I would like to address certain preliminary issues raised by the Noticees. The Noticees have drawn my attention to a decision of the Hon'ble Securities Appellate Tribunal vide its order dated April 08, 2013, with respect to the arguments of the Noticees in regard to delay in initiation of adjudication proceedings. In this regard, I note that the Hon'ble Securities Appellate Tribunal in its order dated April 08, 2013, with regard to the preliminary issues raised by the Noticees vide their reply dated June 10, 2011, directed as follows: The appeals are disposed of with a direction that once the Board has taken a view on the consent proceedings preferred by the appellants, the adjudicating officer of the Board may decide the preliminary objection taken by the appellants in the adjudication proceedings in accordance with law., The Noticees contend that the Show Cause Notice has been issued after unreasonable and inordinate delay, i.e., after a period of 17 years from the issuance of the Warrants in 1994 and 11 years from the acquisition of the equity shares upon conversion of Warrants in 2000. On perusal of the written submissions of the Noticees dated November 19, 2020, I note that they have submitted a copy of the Order dated September 30, 2020 passed by the Hon'ble Special Court of the Judge under the Securities and Exchange Board of India Act, 1992 at Bombay, wherein it is mentioned that the Board received a complaint on 21/01/2002 from Mr. S. Gurumurthy alleging that the accused No. 1 Reliance Industries Ltd. and its associate companies and its directors committed fraud relating to preferential issues of non‑convertible debentures/shares to entities associated with the promoters of Reliance Industries Ltd. and Unit Trust of India., There are various other aspects pertaining to the investigation relating to several other violations spanning from the Securities and Exchange Board of India (Prohibition of Fraudulent and Unfair Trade Practices relating to Securities Market) Regulations, 1995, and Section 77(2) and 77A of the Companies Act, 1956, to the alleged violation of Regulation 11(1) of the Takeover Regulations. Though the present proceedings are restricted only to the allegation of violation of Regulation 11(1) of the Takeover Regulations, the investigations touch upon other allegations as referred above. The investigation generally is a detailed process involving analysis of various data, gathering of evidence, etc., that shall stand the test of legal scrutiny at various judicial fora. Pursuant to submission of the investigation report and further examination relating to the various issues involved, the various enforcement actions including the present adjudication proceedings for alleged violations of the Takeover Regulations were approved on September 15, 2010., In the case of SRG Infotech Ltd. & Ors. v. Securities and Exchange Board of India (2014 SCC OnLine Del 1684 : (2015) 217 DLT 771), the Delhi High Court held that only after the examination of the facts is complete and submitted to the Board for initiation of action and approval for filing a complaint under Section 26 does the limitation period, if any, begin to run. In the present case, the enforcement actions including the present adjudication proceedings for alleged violations of the Takeover Regulations were approved by the Competent Authority on September 15, 2010, after detailed examination. Consequently, the Show Cause Notice was issued to the Noticees on February 24, 2011. Hearing opportunities were granted by the erstwhile Adjudicating Officer on April 20, 2011, April 21, 2011, July 05, 2011 and October 17, 2011. The personal hearing in respect of the Noticees was held before the erstwhile Adjudicating Officer on October 17, 2011. The Noticees had been granted multiple opportunities of personal hearing before the erstwhile Adjudicating Officer. Certain Noticees filed reply pertaining to preliminary issues on June 10, 2011. The Noticees opted for settlement of the matter in August 2011. Accordingly, the matter was kept in abeyance in accordance with the securities law and considering the undertakings given and requests made by the Noticees. The settlement applications were rejected on May 15, 2020 and communicated to the Noticees on May 18, 2020, pursuant to which the present proceedings have resumed. Therefore, there is no delay, if any, on the part of the Securities and Exchange Board of India in initiation of the adjudication proceedings. I was appointed as Adjudicating Officer vide communique dated May 28, 2020, which was communicated to the Noticees vide letter dated June 22, 2020. In the interest of natural justice the Noticees have been provided opportunities to make their submissions in the instant proceeding., In this context I refer to the order passed by the Hon'ble Securities Appellate Tribunal in the case of Metex Marketing Pvt. Ltd. v. Securities and Exchange Board of India (order dated June 4, 2019) wherein the Tribunal held that in the absence of any specific provision in the Securities and Exchange Board of India Act or in the Takeover Regulations, the fact that there was a delay on the part of the Securities and Exchange Board of India in initiating proceedings for violation of any provision of the Act cannot be a ground to quash the penalty imposed for such violation., It is noted that in the instant matter the Noticees have been alleged to have failed to make a public announcement to acquire shares of Reliance Industries Ltd. and deprived the shareholders of their statutory rights/opportunity to exit from the target company, thereby breaching the provisions of the Takeover Regulations. The Hon'ble Securities Appellate Tribunal in Ranjan Varghese v. Securities and Exchange Board of India (Appeal No. 177 of 2009, order dated April 08, 2010) observed that the appellants acting in concert had made acquisitions which triggered the Takeover Code, and it was incumbent upon them to make a public announcement, which they failed to do, thereby prejudicing public investors/shareholders., The Hon'ble Supreme Court of India in State v. R. Vasanthi Stanley (AIR 2015 SC 3691) held that a serious economic offence or an offence that has the potential to create a dent in the financial health of institutions is not to be quashed on the ground of delay in trial., Even if delay is argued, it is not relevant to the present proceeding as the violation is a substantive violation in the nature of an economic offence. The Securities and Exchange Board of India Act, 1992 provides that the Securities and Exchange Board of India must undertake functions under the Capital Issues (Control) Act, 1947. Violations of that Act were considered economic offences under the Economic Offences (Inapplicability of Limitation) Act, 1974. With the repeal of the Capital Issues (Control) Act, 1947 effective 25 May 1992, there was no clarity regarding classification of securities law offences as economic offences. However, the Supreme Court in N. Narayanan v. Adjudicating Officer, Securities and Exchange Board of India, 2013 (12) SCC 152 and Sahara India Real Estate Corporation Ltd. & Ors. v. Securities and Exchange Board of India, 2013 (1) SCC 1 recognised that substantive offences under securities laws are economic offences, including civil proceedings, and must be dealt with sternly., Economic offences are generally strictly construed and not subject to delay or limitation, as held in Omprakash Gulabchandji Partani v. Ashok Ruprao Ulhe & Anr., 1993 (3) BomCR 611 and V. K. Agarwal v. Vasantraj Bhagwanji Bhatia & Ors., AIR 1988 SC 1106. Accordingly, any delay in the initiation of substantive securities law offences is not fatal. Legislative recognition of securities fraud, insider trading and takeover violation as economic offences is evident from the Fugitive Economic Offenders Act, 2016, which includes these offences as scheduled offences. Money laundering relating to these violations is also considered an economic offence under the Prevention of Money Laundering Act, 2002 and Shibamoy Dutta & Ors. v. Manoj Kumar, 2016 SCC Online Cal 62., Hence, it is no longer res integra that substantive violations relating to securities fraud, insider trading and takeover violations under the Securities and Exchange Board of India Act, 1992 are economic offences. If stringent criminal proceedings for substantive violations cannot be defeated on mere grounds of delay, it would be absurd to hold that civil adjudication for the same violation would be foreclosed on the ground of limitation or delay. Thus, delay will not ipso facto be fatal in respect of the present proceeding., Further, the Noticees have committed a serious violation against investors which has a public flavor, whereas any delay by the Securities and Exchange Board of India is of no consequence where public interest outweighs the requirement of adjudication., Considering the facts and circumstances of the matter, I find it difficult to accept the arguments of the Noticees that there was delay on the part of the Securities and Exchange Board of India, and consequently I find no merit in the arguments of the Noticees in this regard., Before moving forward, I deal with the contention raised by the Noticees with regard to supply of documents. The Noticees contended that they had sought inspection of all documents, records, files and internal notings of the Securities and Exchange Board of India in respect of the Show Cause Notice, including reports and papers relating to the investigation and certain reports/opinions obtained. They quoted the judgment of the Hon'ble Supreme Court in Securities and Exchange Board of India v. Price Waterhouse & Co. and others (Civil Appeal Nos. 6003‑6004 of 2012). The Show Cause Notice alleges that the Noticees acquired 6.83% shares of Reliance Industries Ltd. consequent to exercise of option on warrants attached with Non‑Convertible Secured Redeemable Debentures, which was in excess of the ceiling of 5% prescribed in Regulation 11(1) of the Takeover Regulations, without making any public announcement, thereby violating Regulation 11(1). The allegations are clearly delineated in the Show Cause Notice and all relevant documents relied upon have been provided to the Noticees as enclosures to the Show Cause Notice. The Show Cause Notice provided the list of the 38 allottee entities acting as Persons Acting in Concert and the copy of the filing under Regulation 8(3) of the Takeover Regulations by Reliance Industries Ltd. to the stock exchanges as annexure., The Hon'ble Securities Appellate Tribunal in its order dated February 12, 2020, in the matter of Shruti Vora v. Securities and Exchange Board of India observed that an inquiry report is distinct from an investigation report and only documents relied upon in the Show Cause Notice need to be supplied. The Tribunal noted that a minority view of this Tribunal in Price Waterhouse v. Securities and Exchange Board of India (Appeal No. 8 of 2011, order dated June 1, 2011) suggested that fairness demands that the entire material collected during investigation be made available, but this view is contrary to the Supreme Court decision in Natwar Singh case. The Tribunal held that the Act and Rules do not require supply of documents on which no reliance has been placed by the Adjudicating Officer., The Noticees contend that the observations in Shruti Vora v. Securities and Exchange Board of India are in a different factual context and do not apply. However, the Hon'ble Securities Appellate Tribunal has clearly mentioned that the Adjudicating Officer is required to supply the documents relied upon while serving the Show Cause Notice, which is essential for the person to file an efficacious reply. All documents relied upon for the present proceedings have been shared with the Noticees in accordance with that principle., The Hon'ble Securities Appellate Tribunal in Anant R. Sathe v. Securities and Exchange Board of India (Appeal No. 150 of 2020, order dated July 17, 2020) reaffirmed the principle that the Authority must supply the documents it relies upon while serving the Show Cause Notice, which has been done in the instant case., Since all relevant documents have been provided to the Noticees, I am of the opinion that principles of natural justice have been duly complied with and no prejudice in filing reply has been caused to the Noticees., Having decided the preliminary objections raised by the Noticees in terms of the directions of the Hon'ble Securities Appellate Tribunal in its order dated April 08, 2013 (Appeal No. 16 of 2012 with Appeal No. 22 of 2012), I now proceed to deal with the merits of the matter. Issue I: Whether the Noticees have violated the provisions of Regulation 11(1) of the Takeover Regulations?, From the facts of the present matter, 12 crore equity shares of Rs.10 each were allotted by Reliance Industries Ltd. to 38 allottee entities on January 07, 2000. The allotment was made consequent to the exercise of the option on warrants attached with 6,00,00,000 – 14% Non‑Convertible Debentures of Rs. 50 each aggregating to Rs. 300,00,00,000 (PPD IV) issued in 1994., The allegation is that 6.83% shares were acquired by Reliance Industries Ltd. promoters together with Persons Acting in Concert in exercise of option on warrants attached with Non‑Convertible Secured Redeemable Debentures, which exceeds the ceiling of 5% prescribed in Regulation 11(1) of the Takeover Regulations, without making any public announcement. Thus the Noticees are alleged to have violated Regulation 11(1)., Reliance Industries Ltd. disclosed on April 28, 2000, under Regulation 8(3) of the Takeover Regulations to BSE, the 38 allottee entities as Persons Acting in Concert with the promoters. The term 'acquirer' is defined in Regulation 2(1)(b) as any person who directly or indirectly acquires or agrees to acquire shares or voting rights in the target company, or acquires or agrees to acquire control, either by himself or with any person acting in concert. Hence the promoters along with the allottees are the acquirers., As per the filings under Regulation 8(3), the shareholding of the promoters together with Persons Acting in Concert increased from 22.71% on March 31, 1999 to 38.33% on March 31, 2000. Of this, 7.76% shares were acquired consequent upon a merger and are exempt under Regulation 3(1)(j)(ii). The remaining 6.83% shares acquired by exercise of warrants exceed the 5% ceiling, creating an obligation to make a public announcement on January 7, 2000, which was not made., The Noticees argue that the provisions of the Takeover Regulations are not applicable to the issue of warrants and conversion of warrants because the Non‑Convertible Debentures and warrants were approved by shareholders and the board before the 1994 Takeover Regulations or the 1997 Takeover Regulations came into existence. However, the warrants were issued in 1994, and the Takeover Regulations of 1997 were in force in 2000 when the shares were allotted. The principle that a company limited by shares is controlled by shareholding and voting rights applies, and therefore the promoters were required to comply with the Takeover Regulations., The words 'shares or voting rights entitling him to exercise' in Regulation 11(1) clearly indicate that the provision applies when a person acquires or agrees to acquire shares that confer voting rights, which is the case here., In Santosh Mani v. New Delhi Young Men Christian Association (Delhi), it was observed that an applicant for membership of a company does not acquire any right to interfere in the management affairs of the company.
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They have to wait till at least they are enrolled as members. Before that they have the right to seek enforcement of their right to be members., In the matter of Ch. Kiron Margdarshi v. Securities and Exchange Board of India [2001] 33 SCL 349, the Securities Appellate Tribunal held that the regulation is attracted by the acquisition of shares or voting rights which entitles the acquirer to exercise voting rights beyond certain limits. If the acquisition entitles an acquirer to exercise ten percent or more of the voting rights in a company, then the regulation is attracted. It is not the manner in which the shares are acquired but the effect that triggers action. If the acquisition has no impact on the voting rights, the regulation is not attracted., The warrants, by their very nature, do not entitle their holders to exercise voting rights in a company nor do they per se confer any power or authority of control over a target company. The warrants contain an option in favour of the holder to obtain the shares of the issuer company. Such option by itself does not confer voting rights or control. When the warrant holder exercises the option to subscribe to equity shares, he agrees to acquire shares that entitle him to voting rights in the target company. In Raghu Hari Dalmia & Others v. Securities and Exchange Board of India (Appeal No. 134 of 2011), the Securities Appellate Tribunal observed that the word \acquire\ implies acquisition of voting rights through a positive act of the acquirer with a view to gain control over the voting rights. The allottees had to opt in for shares, thus constituting a positive act on the part of the noticees with a view to gain control over the voting rights. The promoters and Persons Acting in Concert acquired the shares and voting rights on 7 January 2000, which is the date of acquisition in the present case, and the obligation to make a public announcement arises as a consequence thereof. The allotment of shares by Reliance Industries Limited in 2000 occurred when the Takeover Regulations, 1997 were in force, calling for a public announcement under Regulation 11(1) of the Takeover Regulations., In Sohel Malik v. Securities and Exchange Board of India, the Securities Appellate Tribunal dated 15 October 2008 held that it is the acquisition of voting rights that triggers the provisions regarding public announcements and public offers contained in the Regulations. Acquisition of securities without voting rights, including convertible warrants, will not by itself necessitate any public announcement or public offer., The Tribunal further held that although information about the issue of warrants became public at the Board of Directors meeting on 16 December 2006, that cannot be taken as information about the issue of shares. The issue of shares was contingent on the warrant holder exercising the option to convert the warrants and therefore the reference date for computing the offer price should be 28 June 2008, the date of the Board meeting when the shares were allotted., In Eight Capital Master Fund Ltd. and others v. Securities and Exchange Board of India (Appeal No. 111 of 2008), the Securities Appellate Tribunal dated 22 July 2009 held that compulsorily convertible debentures were allotted to the appellants on 21 July 2006 but did not carry voting rights on that date. The voting rights that triggered the takeover code were acquired only on 26 January 2008 when the debentures automatically converted and equity shares were allotted. Hence the provisions of the Takeover Regulations were applicable., The noticees contended that the Explanation to Regulation 3(4) of the Takeover Regulations, inserted with effect from 9 September 2002, was not in existence on 7 January 2000. The explanation merely aids interpretation and does not create a new substantive obligation. The Supreme Court of India in Sundaram Pillai v. Pattabiraman (1985 AIR 582, 1985 SCR (2) 643) clarified that an explanation to a statutory provision is not a substantive proviso; it merely clarifies ambiguities and cannot interfere with or change the enactment or take away a statutory right., The noticees also argued that their acquisition of shares was exempt under Regulation 3(1)(c) of the Takeover Regulations, which provides that nothing in Regulations 10, 11 or 12 shall apply to a preferential allotment made in pursuance of a resolution under Section 81(1A) of the Companies Act, 1956, provided certain conditions are met. They claimed the exemption applied to the Reliance Industries Limited equity shares acquired by exercise of the warrants., The noticees further claimed that there was no issue or allotment of convertible instruments after the enactment of the SEBI Takeover Regulations 1994/1997, and therefore filings under Regulations 3(1)(c), 3(3) and 3(4) were not required. However, the date of conversion into shares—7 January 2000—occurred when the Takeover Regulations were fully in force, making the date material for compliance., Regulation 3(1)(c) of the Takeover Regulations (as it existed before its omission on 9 September 2002) required that a Board resolution concerning the proposed preferential allotment be sent to all stock exchanges, full disclosures of the identity of the proposed allottee(s) be made, and, if any allottee would increase his holding to 5 % or more of the post‑issued capital, the price, identity, purpose, consequential changes in the board, voting rights, shareholding pattern and any change in control must be disclosed in the notice of the General Meeting., In Arya Holding Ltd. v. P. Sri Sai Ram (Adjudicating Officer) (2001) 31 SCL 549, the Securities Appellate Tribunal held that an acquisition pursuant to a preferential allotment will not be eligible for exemption under Regulation 3(1)(c) unless the requirements of clauses (i) and (ii) are complied with. The exemption is conditional upon strict compliance with the stipulated requirements., In Luxury Foams Ltd. v. Securities and Exchange Board of India (Order dated 20 March 2002), the Securities Appellate Tribunal observed that Regulation 3 provides exemption from complying with Regulations 10, 11 and 12 for certain types of acquisitions, but the exemption is available only if the acquirer satisfies the pre‑conditions specified in Regulation 3. Failure to comply with those pre‑conditions defeats the exemption., A combined reading of Regulation 3(1) and Regulation 11 of the Takeover Regulations shows two options: (i) inform shareholders with all prescribed details in the notice/explanatory statement of the General Meeting and obtain their approval, thereby obtaining exemption from a public announcement; or (ii) make a public announcement to acquire shares in accordance with the regulations. The noticees have neither obtained shareholder approval with the required disclosures nor made a public announcement, and thus have been enjoying the rights attached to the acquisition without complying with the relevant law., The allotment of shares in the year 2000 must conform to the law prevailing at that time, and the noticees cannot claim ignorance of the Takeover Regulations. Any prior resolution of shareholders is merely a grant of authority to the Board of Directors; if it is not in conformity with the law, it must either be discarded or reconfirmed in accordance with the law. The noticees could have approached the Securities and Exchange Board of India for clarity or sought shareholder approval with the required disclosures under Regulation 3(1)(c). Their failure to file the disclosures was a deliberate concealment of material facts from shareholders., The Supreme Court in Nirma Industries v. Securities and Exchange Board of India [2013 (8) SCC 20] held that the takeover code is meant to ensure fair and equal treatment of all shareholders in substantial acquisitions and that the process must not be clandestine, protecting the interests of shareholders., The Supreme Court further held that Regulation 10 mandates that no acquirer shall acquire shares or voting rights entitling him to exercise 15 % or more of the voting rights in a company unless a public announcement is made. Regulation 11 provides that an acquirer who, together with persons acting in concert, has acquired 15 % to less than 55 % of the shares or voting rights shall not acquire additional shares or voting rights entitling him to exceed 5 % of the voting rights unless a public announcement is made in accordance with the Regulations., The noticees referred to the Bhagwati Committee Report to argue that preferential allotments are eligible for automatic exemption. The report emphasizes the need for an effective exit option for shareholders, which aligns with the purpose of Regulation 3(1) of the Takeover Regulations. The conditions for exemption were therefore in force at the time the cause of action arose., It is settled law that where a statute provides an exception to a general mandate, the conditions stipulated for that exception must be strictly complied with. In Commissioner of Central Excise, New Delhi v. Hari Chand Shri Gopal and Ors. (Supreme Court, 18 November 2010), the Court held that a person claiming exemption must establish entitlement and that the provision must be construed strictly., The noticees contended that the issue and allotment of convertible warrants were disclosed to the stock exchange in 1994 and that the warrants were listed. They also claimed that the issuance and acquisition of equity shares pursuant to the exercise of warrants was intimated to the stock exchanges in April 2000. However, such disclosures cannot substitute for the specific requirements of Regulation 3(1)(c). The Securities Appellate Tribunal in Premchand Shah and Others v. Securities and Exchange Board of India (21 February 2011) held that when a law prescribes a manner in which a thing is to be done, it must be done in that manner., The noticees argued that the Securities and Exchange Board of India had filed a criminal complaint before the Special Court under the Securities and Exchange Board of India Act, 1992, which was dismissed on limitation grounds on 30 September 2020. The prosecution proceedings are separate from the present adjudication proceedings, and the adjudicating authority is not bound by the findings of the Special Court. The order of the Special Court has been challenged before the High Court of Bombay in criminal revision proceedings., From the noticees' reply it is evident that there has been no compliance with Regulation 3(1)(c) of the Takeover Regulations. Consequently, the noticees cannot claim that their acquisition was exempt from the open‑offer obligation under that provision., The noticees have also failed to make the pre‑acquisition filing under Regulation 3(3) and the post‑acquisition filing under Regulation 3(4) of the Takeover Regulations. No such filings have been made to date., Therefore, the impugned acquisition by the noticees was not exempted under Regulation 3(1)(c). Compliance with Regulations 3(1)(c), 3(3) and 3(4) is necessary to avail exemption from the open‑offer obligation under Regulation 11(1)., In the absence of exemption, the acquisition was illegal for failure to make a public announcement of the open offer (Vaman Madhav Apte & Ors. v. Securities and Exchange Board of India, 2019 SCC OnLine SAT 76). The noticees did not make the public announcement as required by Regulation 11, and the open offer remains a continuing obligation. Such failure constitutes a continuing violation., It is settled law that an acquisition in violation of Regulation 11 is ipso facto null and void and constitutes an absolute bar unless a public announcement of an open offer is made. The acquisition of shares that gives rise to voting rights is a continuous contravention of the bar in Regulation 11, and the acquirers and Persons Acting in Concert are not entitled to lawfully exercise the voting rights based on a null and void acquisition. This represents a continuing failure to give the public announcement required under Regulation 11(1)., The violation is not a one‑time breach but continues to the present day, representing disobedience of the statutory provisions that grant the noticees enhanced control through voting rights. The Securities and Exchange Board of India Act, 1992 is a social‑welfare legislation aimed at protecting investors, and its provisions must be interpreted to further that purpose. Acceptance of any argument for not making a public announcement would disregard the concerns of public shareholders and contravene the statute., The Supreme Court in AO, Securities and Exchange Board of India v. Bhavesh Pabari (2019) 5 SCC 90 held that in cases of continuing offence, liability continues until the rule or its requirement is obeyed. Accordingly, liability for making an open offer continues even today., It is observed that the following noticees—Mr. Akash M. Ambani, Mr. Jayanmol Ambani, Ms. Isha M. Ambani, Mr. Vikram D. Salgaokar, Ms. Isheta D. Salgaokar, and Ms. Nayantara B. Kothari—were minors at the time of the commencement of the violation on 7 January 2000. Their natural guardians at that time were Mr. Mukesh D. Ambani (for Akash, Isha), Mr. Anil D. Ambani (for Jayanmol), Mr. Dattaraj Salgaocar (for Vikram and Isheta), and Mr. Bhadrashyam Kothari (for Nayantara)., Section 8 of the Hindu Minority and Guardianship Act, 1956 provides that the natural guardian of a Hindu minor has the power, subject to the provisions of the section, to do all acts necessary or reasonable for the benefit of the minor or for the protection of the minor’s estate, but the guardian cannot bind the minor by a personal covenant., The natural guardians of the minor noticees are responsible not only on their own behalf but also on behalf of the minors. Mr. B. H. Kothari, the natural guardian of Noticee No. 15, passed away on 22 February 2015, and the proceedings against him were abated by an adjudication order dated 30 September 2020, resulting in no penalty being imposed on Noticee No. 15. Additionally, Mr. R. H. Ambani (Noticee No. 6) died on 27 July 2020; the Supreme Court in Girija Nandini v. Bijendra Narain Choudhury (AIR 1967 SC 2110) held that personal actions die with the death of the person, and the adjudication proceedings against him stand abated., Issue II & III: Do the violations, if established, attract monetary penalty under Section 15H of the Securities and Exchange Board of India Act, 1992? If yes, what monetary penalty can be imposed on the noticees, taking into consideration the factors mentioned in Section 15J of the Act read with Rule 5(2) of the Rules?, The Supreme Court of India in SEBI v. Shri Ram Mutual Fund held that once a violation of statutory regulations is established, the imposition of a penalty becomes a sine qua non of the violation, and the intention of the parties is irrelevant. Once the contravention is established, the penalty must follow., Thus, the violation of Regulations 11(1) of the Takeover Regulations makes the noticees liable for penalty under Section 15H of the Securities and Exchange Board of India Act, 1992. The text of Section 15H, as of the date of this order, provides for penalty for non‑disclosure of acquisition of shares and takeovers.
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If any person who is required under this Act or any rules or regulations made thereunder fails to (i) disclose the aggregate of his shareholding in the body corporate before he acquires any shares of that body corporate; or (ii) make a public announcement to acquire shares at a minimum price; or (iii) make a public offer by sending a letter of offer to the shareholders of the concerned company; or (iv) make payment of consideration to the shareholders who sold their shares pursuant to the letter of offer, he shall be liable to a penalty which shall not be less than ten lakh rupees but which may extend to twenty‑five crore rupees or three times the amount of profits made out of such failure, whichever is higher., Inserted by the Securities and Exchange Board of India (Amendment) Act, 2002, with effect from 29‑10‑2002., Substituted for the words twenty‑five crore rupees or three times the amount of profits made out of such failure, whichever is higher by the Securities Laws (Amendment) Act, 2014, with effect from 08‑09‑2014., Prior to substitution, as substituted by the SEBI (Amendment) Act, 2002, with effect from 29‑10‑2002, it read as under: not exceeding five lakh rupees., I note that the amount of profits made out of such failure has not been brought out in the available records for computing the amount of penalty in terms of Section 15H of the Securities and Exchange Board of India Act, 1992., The Noticees, in their reply to the Show Cause Notice, have contended that paragraph 5 of the Show Cause Notice, after referring to Section 15H of the Securities and Exchange Board of India Act, 1992 as it stood up to 29 October 2002, also referred to Section 15H of the Securities and Exchange Board of India Act, 1992 as amended on 29 October 2002. It was argued that Section 15H of the Securities and Exchange Board of India Act, 1992 as amended on 29 October 2002 can have no application to an alleged infraction which took place much prior to the said amendment. I note that the facts pertaining to this case have been elaborated earlier and therefore are not repeated here for brevity. I also note that the Noticees have not made a public announcement to acquire shares to date and have never given an open offer although the same was triggered by virtue of their acquisition as discussed above. In view of the aforesaid, the pre‑amendment and post‑amendment provisions of Section 15H of the Securities and Exchange Board of India Act, 1992 have rightly been mentioned in the Show Cause Notice. It is thus clear that under Section 15H of the Securities and Exchange Board of India Act, 1992, the failure to make a public announcement is punishable, and such failure has never been complied with to date in the present case. The statutory minimum penalty introduced in 2014 has retrospective effect in view of the law laid down in the matters Maya Rani Punj v Commissioner of Income Tax, [All India Reporter 1986 Supreme Court 293] following the Constitutional bench judgments of K. Satwant Singh v State of Punjab, [All India Reporter 1960 Supreme Court 266]. In respect of the present case where the Noticees have continued not to comply with the statutory obligation to make the public announcement, the higher penalty as per the amended law (as on date) would apply [S. S. Thakur & Ors v Securities and Exchange Board of India, 2014 (186) CompCas 134 (Delhi)] and the prohibition against ex post facto laws contained in Article 20(1) of the Constitution shall not apply in view of the law laid down by the Honourable Supreme Court of India in the case of Mohan Lal v State of Rajasthan, 2015 (6) Supreme Court Cases 222. I therefore find it necessary to impose the enhanced penalty as provided under the amended provision of the Securities and Exchange Board of India Act, 1992., Further, with respect to the provisions of Section 15J of the Securities and Exchange Board of India Act, the adjudicating officer shall have due regard to the following factors: (a) the amount of disproportionate gain or unfair advantage, wherever quantifiable, made as a result of the default; (b) the amount of loss caused to an investor or group of investors as a result of the default; (c) the repetitive nature of the default., Regarding the above factors to be considered while determining the quantum of penalty, I note that no quantifiable figures or data are available on record to assess the disproportionate gain or unfair advantage and the amount of loss caused to an investor or group of investors as a result of the default committed by the Noticee. However, the fact remains that the Noticees, by their failure to make a public announcement, deprived the shareholders of their statutory rights and opportunity to exit from the company., Accordingly, taking into account the aforesaid observations and in exercise of the power conferred upon me under Section 15I of the Securities and Exchange Board of India Act read with Rule 5 of the Adjudication Rules, I hereby impose the following penalty, to be paid jointly and severally, under Section 15H of the Securities and Exchange Board of India Act, 1992 for violation of Regulation 11(1) of the Takeover Regulations on the below‑mentioned Noticees:, Shri Mukesh D. Ambani (Noticee No. 1 and on behalf of minor Noticees Nos. 10 and 12) – Rs 25,00,00,000 (Rupees Twenty‑Five Crore Only); Shri Anil D. Ambani (Noticee No. 2 and on behalf of minor Noticee No. 11); Smt. K. D. Ambani (Noticee No. 3); Smt. Dipti D. Salgaokar (Noticee No. 4); Smt. Nina B. Kothari (Noticee No. 5); Shri Dattaraj Salgaokar (Noticee No. 7 and on behalf of minor Noticees Nos. 13 and 14); Smt. Nita Ambani (Noticee No. 8); Smt. Tina Ambani (Noticee No. 9); Reliance Industries Holding Private Limited (into which Noticees Nos. 16 to 26 and 28 to 33 have merged); Kankhal Trading LLP (earlier known as Kankhal Investments & Trading Co. Ltd.) (Noticee No. —); Reliance Realty Ltd. (earlier known as Terene Fibres India (P) Ltd.) (Noticee No. —)., The aforesaid Noticees shall remit/pay the said amount of penalty within 45 days of receipt of this order either by way of Demand Draft in favour of the Securities and Exchange Board of India – Penalties Remittable to Government of India, payable at Mumbai, or through the online payment facility available on the website of the Securities and Exchange Board of India by clicking on the payment link., The aforesaid Noticees shall forward the Demand Draft or the details/confirmation of penalty so paid to the Division Chief (Enforcement Department – DRA‑1), Securities and Exchange Board of India, SEBI Bhavan, Plot No. C‑4A, G Block, Bandra Kurla Complex, Bandra (East), Mumbai 400051. The Noticees shall also provide the following details while forwarding the Demand Draft/payment information: (a) Name and PAN of the Noticee; (b) Name of the case/matter; (c) Purpose of payment – Payment of penalty under Adjudicating Officer proceedings; (d) Bank name and account number; (e) Transaction number., In the event of failure to pay the said amount of penalty within 45 days of receipt of this Order, the Securities and Exchange Board of India may initiate consequential actions including, but not limited to, recovery proceedings under Section 28A of the Securities and Exchange Board of India Act, 1992 for realization of the penalty along with interest thereon, inter alia, by attachment and sale of movable and immovable properties., In terms of Rule 6 of the Adjudication Rules, a copy of this order is sent to the Noticees and also to the Securities and Exchange Board of India.
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Date of decision: 15 June 2021. Through: Mr. Adit S. Pujari, Ms. Tusharika Mattoo and Mr. Kunal Negi, Advocates, for the appellant. Through: Mr. Amit Mahajan, Mr. Amit Prasad and Mr. Rajat Nair, Special Public Prosecutors for the State, along with Mr. Dhruv Pande and Mr. Shantanu Sharma, Advocates, for the respondent., The appellant, Natasha Narwal, has preferred the present appeal under section 21(4) of the National Investigation Agency Act, 2008 (NIA Act) impugning the order dated 28 January 2021 made by the Special Court under the National Investigation Agency Act, 2008 (impugned order) rejecting the appellant's bail application in case FIR No. 59/2020 (subject FIR) dated 06 March 2020 registered initially under sections 147, 148, 149 and 120B of the Indian Penal Code, 1860 (IPC) at Police Station Crime Branch, New Delhi. Offences under sections 109, 114, 124A, 153A, 186, 201, 212, 295, 302, 307, sections 3 and 4 of the Prevention of Damage to Public Property Act, 1984 (PDPP Act), sections 25 and 26 of the Arms Act, 1959 and sections 13, 16, 17 and 18 of the Unlawful Activities (Prevention) Act, 1967 (UAPA) were subsequently added. The appellant has been in custody since 29 May 2020 in connection with the subject FIR., The appellant is a student pursuing an MPhil-Ph.D. programme in the Department Centre of Women’s Historical Studies at Jawaharlal Nehru University, New Delhi, having completed her Bachelor of Arts (Honours) and Master of Arts in History from Hindu College, Delhi University., In essence, the prosecution alleges that the appellant instigated the local population in certain Muslim‑dominated areas of Delhi, particularly women, to protest against the Citizenship Amendment Act, 2019 (CAA) and the exercise undertaken by the Central Government for creating a National Register of Citizens (NRC), by allegedly seeking to incite feelings of persecution. The allegation further states that, as part of a women’s rights group called Pinjra Tod (translated as “break free from the cage”) and other activist groups called the Delhi Protests Support Group (DPSG), the Jamia Coordination Committee (JCC), Warriors and Auraton ka Inquilab, the appellant participated in a larger conspiracy to commit offences that are the subject matter of the subject FIR, which also led to riots that occurred in the North‑East part of Delhi between 22 February 2020 and 26 February 2020., For completeness, it is necessary to mention that the appellant was also accused and arrested in two other FIRs: FIR No. 48/2020 dated 24 February 2020 registered under sections 147, 186, 188, 109, 283, 353, 341 and 34 of the IPC at Police Station Jafrabad, and FIR No. 50/2020 dated 26 February 2020 registered under sections 147, 148, 149, 186, 283, 302, 307, 332, 323, 353, 427, 109, 188, 120B and 34 of the IPC read with sections 25 and 27 of the Arms Act and sections 3 and 4 of the PDPP Act at Police Station Jafrabad. In FIR No. 48/2020 the appellant was arrested on 23 May 2020 and was granted bail by the Duty Metropolitan Magistrate by order dated 24 May 2020, observing that the appellant was merely protesting the passing of the CAA and the NRC and did not indulge in any violence. In FIR No. 50/2020 the appellant was arrested on 24 May 2020, the same day and from the same court that admitted her to bail in FIR No. 48/2020, and was subsequently granted bail by the Additional Sessions Judge, Karkardooma Courts, Delhi, by order dated 17 September 2020., The appellant was arrested in the subject FIR (FIR No. 59/2020) on 29 May 2020 while she was in judicial custody in Tihar Jail in connection with FIR No. 50/2020. Even at the time of her formal arrest in the subject FIR, the investigating officer did not seek her police custody; police custody was sought four days later, and she suffered police custody for five days beginning 03 June 2020., It appears that three separate FIRs were registered against the appellant, albeit arising from or in connection with the same event, namely her alleged involvement with the protests against the CAA and the NRC. Although FIR No. 59/2020 was registered on 06 March 2020, the appellant was arrested in that FIR some three months later on 29 May 2020., Upon completion of investigation in the subject FIR, the Delhi Police filed a charge‑sheet dated 16 September 2020 naming several accused persons, including the appellant. Supplementary charge‑sheets dated 22 November 2020 and 01 March 2021 were also filed, but they do not relate to the appellant and are therefore not relevant for the present proceedings. By order dated 17 September 2020 the Special Court under the National Investigation Agency Act, 2008 took cognizance of the offences alleged in the subject charge‑sheet, except offences under sections 124A, 153A, 109 and 120B of the IPC, for which sanction for prosecution was still awaited from the State Government as of the date of the impugned order. However, charges have not yet been framed against the appellant or any of the other accused persons., For completeness, it may be recorded that in Criminal Miscellaneous Case No. 2119/2020, by which the State had challenged the trial court’s direction to provide a hard copy of the charge‑sheet to all accused persons, further proceedings in the trial were stayed by a Single Judge of the Delhi High Court by order dated 10 November 2020. That stay order was vacated by the Single Judge by order dated 23 March 2021., Appellant’s submissions: Mr. Adit S. Pujari, counsel for the appellant, contends that, on the facts, the appellant was not involved in any of the acts or omissions alleged against her in the subject charge‑sheet. Specifically, the counsel submits that (a) the appellant was not involved or concerned with any violent protests against the CAA, whether as part of Pinjra Tod or DPSG, and she was not a member of the JCC, the Warriors or the Auraton ka Inquilab WhatsApp groups; (b) although the appellant does not deny that she was part of the women‑led 24×7 sit‑in protest at the site near Madina Masjid, Seelampur and of the protest at the 66‑foot Road at Jafrabad Metro Station, she was not present at those protest sites on the dates when riots and communal violence are alleged to have broken out (22 February 2020 to 26 February 2020), as would be evident from her Call Detail Records and video footage of CCTV cameras installed at and around the sites; (c) the appellant’s name is being falsely dragged into several allegations, including participation in various meetings and presence at protest sites where violence occurred, based only on statements of witnesses, most of whom are now protected witnesses, recorded much after the alleged incidents, while the best evidence such as Call Detail Records and relevant video footage have intentionally not been produced; (d) the State has not cited a single statement of any actual victim of the alleged violence, which would disprove the appellant’s presence during the riots; copies of the Call Detail Records and video footage have not been provided to the appellant to prevent her from showing that she was not present; (e) the charge‑sheet contains no specifics such as names, addresses or particulars of actual victims, nor any evidence of injuries sustained, nor any medical‑legal certificates, all of which would demonstrate the falsity of the allegations; applications made by the appellant before the Special Court seeking copies of the contents of her seized cell‑phone and for requisitioning her Call Detail Records and video footage have been rejected; the appellant contends that video footage of the protests was professionally recorded by a videographer engaged by the Delhi Police but has not been produced to block exculpatory evidence; (f) the effort of the State is to embroil the appellant in events with which she had nothing to do and in which she neither perpetrated nor participated, on the vague and untenable plea of a larger conspiracy; (g) there is no substantive factual allegation founded on concrete, verifiable evidence against the appellant, and the ingredients of the offences alleged under sections 15, 17 or 18 of the UAPA are not made out, so section 43D(5) of the UAPA has no application to the bail application; consequently, the bail application must be decided only on the general principles of bail – the triple test of flight risk, tampering with evidence and influencing witnesses; (h) the appellant was arrested almost three months after the registration of the FIR without even a notice under section 41A of the Code of Criminal Procedure being issued to her, yet she remained available for investigation at her residence throughout, and there is no chance of her fleeing from justice; all evidence required to be collected is already with the investigating agency and no documentary or other evidence is in the appellant’s possession, nor has she acted in a manner that could suggest she would tamper with evidence; considering her educational profile and situation in life as a student pursuing her M.Phil‑Ph.D. at JNU, she is in no position to influence any witnesses, and therefore there is no risk on that count., Respondent’s submissions: Mr. Amit Mahajan, Special Public Prosecutor for the Delhi Police, explained the alleged role of the appellant in the larger conspiracy. The prosecution’s allegations may be summarised as follows: (a) the appellant, as a member of the women’s rights organisation Pinjra Tod and as part of the WhatsApp groups Warriors, Auraton ka Inquilab, DPSG and JCC, engaged in a conspiracy to plan riots and destabilise the Government in the guise of an anti‑CAA and anti‑NRC protest; (b) on 23 January 2020 the appellant was present at the Pinjra Tod office in E‑1/13 Seelampur, Delhi, where a principal accused advised those present to escalate their planned chakka jaam (a complete stoppage of vehicles and blockade of roads), stating that merely giving inciting speeches would not work; (c) on the night of 16/17 February 2020 the appellant allegedly attended a meeting in Chand Bagh where conspirators pledged to execute a chakka jaam, including at the time the US President was scheduled to visit New Delhi; (d) the appellant was among the leaders who organised protests at the Plot of Chaudhary Mateen in Jafrabad, at the site opposite Tent Wala School, Jafrabad, and at the Fruit Market, Seelampur; (e) the appellant was one of the conspirators who organised and instigated the 24×7 sit‑in protest led by about 300 women at Madina Masjid, Seelampur, and on 23 February 2020 a group of protesting women occupied the 66‑foot Road at Jafrabad Metro Station, completely blocking traffic and creating a chakka jaam, where the appellant also engaged in sloganeering and inciting speeches against the Government; (f) the appellant distributed packets of chilli‑powder to women protesters for use against police and military, and asked women and youngsters to stockpile chilli‑powder, sticks, empty bottles, acid and stones for future use; (g) the appellant was part of the group of protesting women who proceeded from the Jafrabad protest site towards the Maujpur‑Babarpur Metro Station, near a pro‑CAA protest site, where she allegedly distributed chilli‑powder, bottles and stones to women protesters, which were thrown at the pro‑CAA protesters; (h) the appellant’s name is also sought to be included in the commission of the actual riots that occurred in North‑East Delhi, which allegedly broke out in execution of a common conspiracy; the State alleges that the perpetrators used firearms, petrol bombs, acid, iron rods, swords, knives, stones, slingshots and chilli‑powder to terrorise people and society; (i) the prosecution alleges that the above‑mentioned allegations are substantiated by statements of several witnesses, many of whom have been declared protected witnesses, and that video recordings seized by the police show the appellant’s presence., Basis and reasoning of the impugned order: The Special Court under the National Investigation Agency Act, 2008 considered several aspects while rejecting the appellant’s bail. First, the Court noted that under section 45 of the UAPA, prior sanction of the Central Government is required before a court can take cognizance of any offence under Chapters IV or VI, and that the Central Government must consider the report of an authority appointed by it to make an independent review of the evidence gathered during investigation. The Court observed that an independent review had been undertaken and that sanction for prosecution had been granted, which it perceived to almost obviate the need for the Court to apply its own mind to whether any offence is disclosed against the appellant. Second, the Court’s reasoning was that the appellant was a member of Pinjra Tod, DPSG, Warriors and Auraton ka Inquilab and was part of a multi‑layered conspiracy, regularly in touch with higher conspirators, making her actions culpable. Third, the Court appeared to accept that the independent review and the Central Government’s sanction eliminated the necessity for the Court to independently assess whether the charge‑sheet disclosed any offence under the UAPA, despite the seriousness of the alleged offences., Interpretation of terrorist act and related provisions under the UAPA: In the judgment of 15 June 2021 in Asif Iqbal Tanha v. State (Criminal Appeal No. 39 of 2021), this Court analysed the provisions relating to terrorist act and conspiracy or act preparatory to the commission of a terrorist act. The Court held that although section 15 of the UAPA gives a wide definition of “terrorist act”, the courts must employ the definitional words carefully and not use them lightly so as to trivialise the heinous nature of the offence. The Supreme Court, in Hitendra Vishnu Thakur & Ors. v. State of Maharashtra, observed that terrorist activity must go beyond the effect of an ordinary crime and must not arise merely from disturbance of law and order. Terrorism is an attempt to acquire or maintain power or control by intimidation, causing fear and helplessness in the minds of the people, and is a totally abnormal phenomenon. The Court further clarified that not every criminal act qualifies as terrorism; only acts that have effects beyond ordinary criminal activity fall within the ambit of anti‑terrorism legislation. In People’s Union for Civil Liberties & Anr. v. Union of India, the Supreme Court described terrorism as the use of violence whose most important result is not merely physical and mental damage to the victim but a prolonged psychological effect on society as a whole. The Court emphasized that terrorist acts aim to destabilise the nation, challenge its sovereignty and integrity, create fear, tear apart the secular fabric, overthrow democratically elected government and are not merely law‑and‑order problems. More recently, in Yakub Abdul Razak Memon v. State of Maharashtra, the Supreme Court listed various forms of terrorism, including assassinations, kidnappings, hijackings, bomb scares, use of chemical, biological and nuclear weapons, among others. The Court reiterated that the definition of “terrorist act” in section 15 of the UAPA must retain its essential character and cannot be applied cavalierly to ordinary offences. The Constitution Bench in A.K. Roy v. Union of India stressed that criminal statutes must be defined with appropriate definitiveness so that persons are clearly informed of what conduct is prohibited. The Court warned that vague or broadly worded provisions with serious penal consequences must be construed narrowly to avoid unjustly encompassing conduct that the legislature did not intend to punish., Right to protest: As in Asif Iqbal Tanha, this matter arises from protests organised against the CAA and the NRC. The Court must examine when the constitutionally guaranteed right to protest under Article 19(1)(b) of the Constitution, which allows peaceful assembly without arms, turns into a cognisable offence under ordinary penal law, and when it further vitiates into a terrorist act, conspiracy or act preparatory to a terrorist act under the UAPA. The analysis must delineate the permissible contours of protest that do not threaten the nation’s security and sovereignty.
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The observations of the Honourable Supreme Court of India in Mazdoor Kisan Shakti Sangathan vs Union of India and Another give the most lucid answer, explaining the contours of legitimate protest. In that decision, the Court says that legitimate dissent is a distinguishable feature of any democracy and the question is not whether the issue raised by the protestors is right or wrong or whether it is justified or unjustified, since people have the right to express their views; and a particular cause, which in the first instance may appear to be insignificant or irrelevant, may gain momentum and acceptability when it is duly voiced and debated. The Court further says that a demonstration may take various forms: it may be noisy, disorderly and even violent, in which case it would not fall within the permissible limits of Article 19(1)(a) or 19(1)(b) and the Government has the power to regulate, including prohibit, such protest or demonstration. The Government may even prohibit public meetings, demonstrations or protests on streets or highways to avoid nuisance or disturbance of traffic but it cannot close all streets or open areas for public meetings thereby defeating the fundamental right that flows from Article 19(1)(a) and 19(1)(b) of the Constitution., In the present case, we are not deciding whether the protests, in which the appellant is alleged to have been involved, were within the constitutionally guaranteed right to assembly, or whether they crossed the limit of what is permissible under Article 19(1)(a) and 19(1)(b) and became non‑peaceful protests. However, we find that there is nothing to say that the Government had prohibited the protest in the first instance. The offences, if any, alleged to have been committed because the protests turned non‑peaceful are the subject of FIR Nos. 48/2020 and 50/2020, in which the appellant is one of the accused and has been admitted to bail and will face trial in due course. There is absolutely nothing in the charge‑sheet, by way of any specific or particularised allegation, that would show the possible commission of a terrorist act within the meaning of section 15 of the Unlawful Activities (Prevention) Act; or an act of raising funds to commit a terrorist act under section 17; or an act of conspiracy to commit or an act preparatory to commit a terrorist act within the meaning of section 18 of the Unlawful Activities (Prevention) Act. Accordingly, prima facie we are unable to discern in the charge‑sheet the elemental factual ingredients that are a must to found any of the offences defined under sections 15, 17 or 18 of the Unlawful Activities (Prevention) Act., The charge‑sheet and the material filed therewith do not contain any specific, particularised factual allegations that would make out the ingredients of the offences under sections 15, 17 or 18 of the Unlawful Activities (Prevention) Act. As observed in Asif Iqbal Tanha (supra), alleging extremely grave and serious penal offences under those sections against people frivolously would undermine the intent and purpose of Parliament in enacting a law meant to address threats to the very existence of the Nation. Wanton use of serious penal provisions would only trivialise them. Whatever other offence(s) the appellant may or may not have committed, at least on a prima facie view, the State has been unable to persuade us that the accusations against the appellant show commission of offences under sections 15, 17 or 18 of the Unlawful Activities (Prevention) Act., Since, in our opinion, no offence under sections 15, 17 or 18 of the Unlawful Activities (Prevention) Act is made out against the appellant on a prima facie appreciation of the charge‑sheet and the material collected and cited by the prosecution, the additional conditions, limitations and restrictions on grant of bail under section 43D(5) of the Unlawful Activities (Prevention) Act do not apply; and the court must therefore apply the usual and ordinary considerations for bail under section 439 of the Criminal Procedure Code., The general principles of grant or refusal of bail are well settled. Since a detailed discussion of such principles has recently been made by us in our judgment in Asif Iqbal Tanha (supra), only a brief reiteration of the principles would suffice in the present case, since both cases arise from the same subject FIR., Though grant of bail involves exercise of discretionary power by the court, the exercise of discretion must be judicious and not perfunctory or as a matter of course. In granting bail the court must keep in mind not only the nature of accusations but also the severity of the punishment and the nature of evidence in support of the accusations. Apart from being prima facie satisfied as regards the charges levelled, the court must also reasonably assess the apprehension of flight risk, evidence tampering and witness intimidation, with careful regard to the genuineness of the prosecution. The court must also consider the character, behaviour, means, position and standing of the accused and the likelihood of the offence being repeated., Furthermore, we remind ourselves that the object of bail is neither punitive nor preventative but is principally to secure the presence of the accused at the trial; punishment begins only after conviction and everyone is deemed innocent until duly tried and found guilty. It is well settled that detention in custody pending completion of trial can cause great hardship to an accused; it is improper for any court to refuse bail as a mark of disapproval of past conduct or to refuse bail to a person yet to be convicted only to give him a taste of imprisonment as a lesson. The necessity to secure the attendance of an accused at trial, the Supreme Court of India has held, is the operative test. It also requires to be understood that, though the larger interest of the public or the State and other similar considerations are also relevant, there is no hard and fast rule. Each case has to be considered on its own facts, circumstances and merits., Since courts often tend to fall into this error, it is extremely important to bear in mind the words of the Supreme Court of India that grant of bail cannot be thwarted merely by asserting that an offence is grave, since the gravity of the offence can only beget the length of the sentence, which may be awarded upon conclusion of the trial., We must also never forget the profound insight of Justice V. R. Krishna Iyer, when he said that the consequences of pre‑trial detention are grave; that by being kept in custody, an under‑trial accused, though presumed innocent, is subjected to psychological and physical deprivations of jail life; that the accused is also prevented from contributing to the preparation of the defence; and that the burden of pre‑trial detention frequently falls heavily on the innocent members of the family., In the present case, a closer reading of the allegations made against the appellant shows that no specific, particularised or definite act is attributed to the appellant, apart from the admitted fact that she engaged herself in organising anti‑Citizenship Amendment Act and anti‑National Register of Citizens protests around the time when violence and rioting broke out in certain parts of North‑East Delhi. On a reading of the portions of the charge‑sheet highlighted by the State, it is seen that invariably the appellant’s name appears along with several other alleged co‑conspirators and even the instructions and directions issued by the main accused persons are not directed towards the appellant. In our reading of the charge‑sheet and the material included in it, therefore, the allegations made against the appellant are not borne out from the material on which they are based. The State cannot thwart grant of bail merely by confusing issues., Allegations relating to inflammatory speeches, organising of chakka jam, instigating women to protest and stock‑piling various articles, in our view, at worst are evidence that the appellant participated in organising protests, but we can discern no specific or particularised allegation, much less any material to bear out the allegation, that the appellant incited violence, committed a terrorist act or conspired or prepared to commit a terrorist act as understood in the Unlawful Activities (Prevention) Act., It seems that in its anxiety to suppress dissent, the State’s mind blurs the line between the constitutionally guaranteed right to protest and terrorist activity. If this mindset gains traction, it would be a sad day for democracy., Therefore, after carefully considering the allegations in the charge‑sheet dated 16 September 2020 along with the material adduced therewith, we are not persuaded to think that prima facie the accusations made against the appellant make out any offence under sections 15, 17 or 18 of the Unlawful Activities (Prevention) Act; consequently the stringent conditionalities contained in section 43D(5) of the Unlawful Activities (Prevention) Act would not apply and the appellant’s bail plea must be considered on the general principles of bail enunciated above., The charge‑sheet has been filed before the learned Special Court; cognizance of some of the offences has been taken; but charges are yet to be framed. Some 740 prosecution witnesses, including public witnesses, protected witnesses and police witnesses, are stated to have been cited in the charge‑sheet but deposition of the witnesses is yet to commence. Considering the prevailing situation, namely the havoc created by the second wave of the COVID‑19 pandemic, it is hardly likely that trial will proceed, much less conclude anytime soon., Moreover, the appellant has already been granted regular bail by the learned Assistant Sessions Judge by order dated 17 September 2020 in FIR No. 50/2020; and by the learned Duty Metropolitan Magistrate by order dated 24 May 2020 in FIR No. 48/2020, in which the latter order recorded that the appellant was only protesting the passage of the Citizenship Amendment Act and the conduct of the National Register of Citizens and had not indulged in any violence. There is bound to be some overlap between what the appellant is alleged to have done in the said two other FIRs and in the subject FIR from which this appeal arises, since the offences alleged against the appellant are in the context of the violence and rioting that occurred in the North‑East part of Delhi within a few days in February 2020., In our considered opinion, keeping in view the background, profile and position of the appellant, there is no reasonably discernible basis to suspect, nor do we entertain any reasonable apprehension, that the appellant will either flee from justice; tamper with evidence; intimidate witnesses; or otherwise attempt to frustrate trial. It is also noted that the appellant was not arrested in the subject FIR for nearly three months after the date of its registration., Consequently, we are of the view that the appellant is entitled to be enlarged on regular bail. We set aside the impugned order dated 28 January 2021 made by the learned Special Court in the case arising from FIR No. 59/2020 dated 6 March 2020 registered at Special Cell, Delhi; and admit the appellant to regular bail until conclusion of trial, subject to the following conditions: (a) The appellant shall furnish a personal bond in the sum of Rs 50,000 (Rupees Fifty Thousand Only) with two local sureties in the like amount, to the satisfaction of the learned trial court; (b) The appellant shall furnish to the Investigating Officer/Station House Officer a cellphone number on which the appellant may be contacted at any time and shall ensure that the number is kept active and switched on at all times; (c) The appellant shall ordinarily reside at her place of residence as per trial court record and shall inform the Investigating Officer if she changes her usual place of residence; (d) If the appellant has a passport, she shall surrender the same to the learned trial court and shall not travel out of the country without prior permission of the learned trial court; (e) The appellant shall not contact, nor visit, nor offer any inducement, threat or promise to any of the prosecution witnesses or other persons acquainted with the facts of the case. The appellant shall not tamper with evidence nor otherwise indulge in any act or omission that is unlawful or that would prejudice the proceedings in the pending trial., Nothing in this order shall be construed as an expression on the merits of the pending trial., A copy of this order shall be sent to the concerned Jail Superintendent., The appeal stands disposed of in the above terms., Pending applications, if any, are also disposed of., The names and other identifying details of persons other than the appellant and co‑accused Devangana Kalita have been redacted by this court.
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Criminal Jurisdiction Date: 11.02.2024 S. Gurumoorthy Petitioner/Accused No.3 vs State represented by the Sub Inspector of Police, Theppakulam Police Station, Madurai District (Crime No. 264/2023). Respondent/Complainant for Petitioner: Mr. S. S. Sundarapandian, Advocate. For Respondent: Mr. P. Kottaichamy, Government Counsel (Criminal side). The petition seeks interim bail in Crime No. 264/2023 on the file of the respondent police., The Madras High Court made the following order after hearing both sides. The petitioner was arrested and remanded to judicial custody on 13.06.2023 for offences under Sections 20(b)(ii)(C), 29(1) and 8(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 in Crime No. 264 of 2023 on the file of the respondent police. The petitioner's father passed away on 10.02.2024. The petitioner, wishing to participate in the funeral rites, seeks interim bail., Considering the urgency of the situation, the Honourable Administrative Judge directed the court to hold a special sitting and dispose of this petition. The learned counsel appearing for the petitioner relied on the order dated 04.02.2024 made in Criminal Original Petition (Madras Division) No.1793 of 2024 and submitted that in a similar situation interim bail was granted. The court was not persuaded by the submission., As rightly pointed out by the learned Government Advocate (Criminal side) appearing for the respondent, while granting bail in cases involving commercial quantity the court must bear in mind the parameters laid down under Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985. Section 37(1)(b)(ii) states that the court must be satisfied that there are reasonable grounds for believing that the accused is not guilty of the offence in question and that he is not likely to commit any offence while on bail. This restriction applies only if the offences involved are Sections 19, 23, 27(A) or involve commercial quantity. In this case, the petitioner was allegedly found in possession of 24 kg of ganja, which is a commercial quantity, and therefore Section 37(1)(b)(ii) will come into play., The Government Advocate (Criminal side) categorically opposed the petitioner's application, pointing out that the petitioner has two previous cases: Crime No. 116 of 2022 for offences under Sections 294(b), 323, 324 and 506(ii) of the Indian Penal Code on the file of Manamadurai Town Police Station, and Crime No. 43 of 2022 for the offence under Section 8(C) read with 20(b)(ii)(B) of the NDPS Act on the file of Mandamadurai Town Police Station. Accordingly, the court cannot find that the petitioner is not likely to commit any offence while on bail., Section 37 of the NDPS Act applies not only to the grant of bail but also to the grant of interim bail. Consequently, the Madras High Court rejects the petitioner's request for interim bail., Although the petitioner's request for interim bail is declined, the court is mindful of his fundamental rights. His father has passed away, a fact not denied by the respondent. As a son, the petitioner must participate in the final rites of his father., A dead person is entitled to a dignified cremation or burial, and close relatives may participate in the ceremony. The right to protect one's relative is a guaranteed fundamental right under Article 25 of the Constitution. The petitioner, a Hindu, must discharge certain religious obligations such as offering 'Pinda' and lighting the pyre, matters of religion for which the court must have due regard. While bail cannot be granted, the court can issue directions invoking the inherent power under Section 482 of the Code of Criminal Procedure., The existence of this right has been authoritatively settled by a learned Judge of the Madras High Court, Abdul Quddhos, J., in the decision reported in 2021 (3) Madras Law Journal 479 (Anandhi Simon vs. State of Tamil Nadu). The Supreme Court in Ashray Adhikar Abhiyan vs. Union of India (2002) held that it is the obligation of the State to give a decent burial to a deceased person as per their religious beliefs. The Madras High Court in S. Sethuraja vs. Chief Secretary (W.P. MD No. 3885 of 2007) held that the same human dignity extended to a dead person as to a living person., Trespassing a burial place, place of worship or sepulcher is an offence under Section 297 of the Indian Penal Code, which prohibits irreverence to dead bodies. The provision reads: 'Whoever, with the intention of wounding the feelings of any person, or of insulting the religion of any person, or with the knowledge that the feelings of any person are likely to be wounded, or that the religion of any person is likely to be insulted thereby, commits any trespass in any place of worship or on any place of sculpture, or any place set apart from the performance of funeral rites or as a depository for the remains of the dead, or offers any indignity to any human corpse, or causes disturbance to any persons assembled for the performance of funeral ceremonies, shall be punished with imprisonment for a term which may extend to one year, or with fine, or with both.' Thus, the right to decent burial is protected under the Indian Penal Code as well., In the instant case, anti‑social elements have been booked by the police for preventing a decent burial for Dr. Simon Hercules at Kilpauk cemetery., The Division Bench of this Court, in a public interest litigation involving the same Dr. Simon Hercules, observed in its order dated 20.04.2020 in Suo Motu W.P. No. 7492 of 2020 that the scope and ambit of Article 21 of the Constitution includes the right to a decent burial, and invoked Section 297 of the Indian Penal Code., Section 404 of the Indian Penal Code deals with dishonest misappropriation of property possessed by a deceased person. It provides that whoever dishonestly misappropriates or converts to his own use property, knowing that such property was in the possession of a deceased person at the time of death and has not since been in the possession of any person legally entitled to such possession, shall be punished with imprisonment for a term which may extend to three years and may also be liable to fine; if the offender was employed by the deceased as a clerk or servant, the imprisonment may extend to seven years. The object behind Section 404 is to protect the property of a deceased person., Section 499 of the Indian Penal Code, which deals with defamation, also defines that libel or slander against a dead person constitutes the offence of defamation., Section 503 of the Indian Penal Code, which deals with criminal intimidation, includes threatening a person with injuring the reputation of a dead person dear to him as an offence., In a recent decision, the Division Bench of the Calcutta High Court in Vineet Ruia vs. Principal Secretary, Ministry of Health and Family Welfare, Government of West Bengal and Others (AIR 2020 Cal 308) considered the disposal of dead bodies of COVID‑19 victims and recognized the fundamental right of any family member to perform funeral rites for a COVID‑19 victim, subject to public health considerations., Freedom of conscience and free profession and practice of religion is protected under Clause (1) of Article 25 of the Constitution. The term 'religion' need not be linked to any particular religion and includes personal faith and conscience. The right to perform funeral rites, whether cremation or burial, is therefore a fundamental right, subject to reasonable restrictions in the interest of public order, health and morality as provided in Part III of the Constitution., Even though bail is denied, the court directs the Superintendent, Central Prison, Madurai to make appropriate arrangements so that the petitioner can take part in the final rites of his father. The petitioner shall be taken out of prison before 04:30 pm on 11.02.2024, escorted by prison authorities, and returned to Central Prison, Madurai by the evening of 12.02.2024 at 06:00 pm. He shall also be permitted to participate in the 16th‑day ceremony, being taken out at 06:00 am on that day and returned before sunset. The cost of the escort shall be borne by the State., The court notes that in some cases prisoners taken out on escort escape, leading to suspension of the escort team, and that handcuffing has been held unconstitutional by the Supreme Court. Therefore, the escort team shall maintain reasonable distance and respect the privacy of the petitioner., The registry is directed to upload this order immediately so that the Superintendent, Central Prison, Madurai can act on the web copy. The learned Government Advocate (Criminal side) is also directed to communicate this direction to the Superintendent, Central Prison, Madurai. With the above directions, this Criminal Original Petition is disposed of., The parties to be served are: (1) The Superintendent of Central Prison, Madurai; (2) The Sub Inspector of Police, Theppakulam Police Station, Madurai District; (3) The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai; (4) The Registrar (Judicial), Madurai Bench of Madras High Court, Madurai., Emergency case taken on 11.02.2024. Criminal Original Petition (Madras Division) No. 228 of 2024 dated 11/02/2024. Madurai Bench of Madras High Court is issuing certified copies in this format.
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Reportable Civil Appeal No. 7000 of 2021 (Arising Out of SLP (C) No.18591 of 2021) Avni Prakash Appellant versus National Testing Agency (NTA) and others Respondents Justice Dr Dhananjaya Y Chandrachud, Justice. Introduction: Leave granted., This appeal arises from a judgment of a Division Bench of the High Court of Judicature at Bombay dated 29 October 2021. The High Court dismissed the appellant's petition under Article 226 of the Constitution., The appellant suffers from Dysgraphia, which is a specified disability listed in Entry 2(a) of the Schedule to the Rights of Persons with Disabilities Act 2016. The appellant has been diagnosed with a 40 per cent permanent disability, falling within the statutory definition of a person with benchmark disability under Section 2(r) of the Rights of Persons with Disabilities Act 2016. The appellant claims that as a person with disability, she is entitled to reasonable accommodation and certain relaxations, including the benefit of inclusive education by a suitable modification to the examination system, as mandated by Section 17(i) of the Rights of Persons with Disabilities Act 2016., The Ministry of Social Justice and Empowerment issued guidelines for conducting written examinations for persons with benchmark disabilities on 29 August 2018. These guidelines govern the examinations of all students covered by the Rights of Persons with Disabilities Act 2016 and are to be followed by all examining authorities and educational institutions conducting regular or competitive examinations. The National Testing Agency, the first respondent, is responsible for conducting the National Eligibility cum Entrance Test for admission to undergraduate medical courses., The appellant appeared for the National Eligibility cum Entrance Test on 12 September 2021. Given her PwD status, she claimed a relaxation in terms of an additional hour of compensatory time, as against the total time of three hours prescribed for regular candidates. The appellant was allotted Thakur College of Engineering and Technology, Kandivali (East), Mumbai as her centre for undertaking the test. The appellant averred that the second respondent was ignorant of the grant of special facilities that had to be provided to PwD candidates. The grievance is that the second respondent initially assured her that facilities for PwD, if prescribed in the rules, would be provided, but towards the end of the scheduled three‑hour duration, her answer sheet was forcibly collected together with the category of regular students, depriving her of compensatory time., On 23 September 2021, the appellant moved a writ petition under Article 226 of the Constitution before the High Court of Judicature at Bombay. Among other alternative reliefs, she sought a direction to the first respondent to hold a fresh NEET examination for the appellant while accommodating her with all relaxations and benefits to which she was entitled under the rules and regulations., On 11 October 2021, the High Court passed the following interim order: The petition seeks an order and direction against the first respondent to re‑appear for the National Eligibility cum Entrance Test by providing her with compensatory time and all other relaxations and benefits that she is entitled to by virtue of her person with disability status. The petitioner obtained a disability certificate on 6 June 2021 from Sion Hospital certifying that she was suffering from Dysgraphia and recommending remedial measures, and another certificate of learning disability on 15 September 2021 issued by Sion Hospital. The petitioner produced these certificates to the second respondent college, which conducted the test on behalf of the first respondent. The second respondent did not grant the additional hour. By an ad interim order dated 30 September 2021, this Court directed the first and third respondents not to declare the result of the petitioner. Learned counsel for the first respondent placed reliance on the information bulletin issued by the first respondent for NEET (UG‑21), particularly clauses 5.3.1, 5.3.3, 5.3.4, 5.3.5, 5.4(b) and Appendices XIII‑A and XIII‑B, and submitted that the petitioner had not obtained a disability certificate in the format prescribed in Appendix XIII‑A and Appendix XIII‑B, and therefore was not entitled to additional compensatory time. It was submitted that if the petitioner produces a disability certificate from one of the centres recognised by the first respondent in Appendix VIII‑B, the case would be considered., The High Court observed that the third respondent college permitted the petitioner to appear for the test despite the learning disability certificate issued by Sion Hospital, and that the petitioner had requested the benefit of clause 5.4(b) for compensatory time of one hour without using a scribe. In view of the statement made by counsel for the first respondent and the fact that the petitioner had already appeared in the test without objection by the second respondent, the Court directed the first respondent to take an appropriate decision on the petitioner's application for re‑appearing in the test, keeping in mind the principles laid down by the Honourable Supreme Court of India in Vikash Kumar versus Union Public Services Commission & Others (2021) 5 SCC 370 regarding reasonable accommodation. The petitioner agreed to produce a certificate from an agency prescribed in Appendix VIII‑B within one week. The first respondent shall consider the certificate and communicate its decision within two days of receiving it. The order shall not be used as a precedent in any other matter., The petition was placed on board for admission on 28 October 2021. Parties were directed to act on the authenticated copy of this order., In furtherance of the interim order of the High Court, the appellant stated that she approached Grant Government Medical College, Mumbai (the sixth respondent) on 12 October 2021, but was informed that the certificate in the format prescribed under Appendix VIII‑A is applicable at the time of admission when a PwD candidate is claiming reservation and not for claiming relaxation and benefits during the examination. For further clarification, the appellant approached the Directorate of Medical Education and Research (the fifth respondent), which reiterated that the certificate under Appendix VIII‑A cannot be issued before the declaration of results., On 26 October 2021, an additional affidavit was filed by the appellant indicating that a certificate conforming to Appendix VIII‑A is issued only after the declaration of results and is required only at the time of seeking admission. By the impugned judgment dated 29 October 2021, a Division Bench of the High Court dismissed the appellant's writ petition. While dismissing the petition, the High Court noted that the statement made on behalf of the first respondent that the appellant's case would be considered if a certificate is produced from one of the centres referred in Appendix VIII‑B was incorrect and was made due to a miscommunication. Despite noting the appellant's contention that she is not required to obtain such a certificate, the High Court declined to entertain the petition for the following reasons: The certificate produced by the petitioner from Sion Hospital was not from a designated agency prescribed in Appendix VIII‑B, and even after the opportunity granted on 11 October 2021, the petitioner has not produced a certificate from the said agency. Consequently, the Court is not inclined to grant prayer clause (a) allowing the petitioner to appear for the test with compensatory time and other relaxations., The Division Bench observed that if the appellant submits a representation to the first respondent, it would be duly considered within four weeks. The High Court also referred to an ad interim order dated 28 October 2021 of this Court in a Special Leave Petition under Article 136 of the Constitution instituted by the National Testing Agency versus Vaishnavi Vijay Bhopale. This Court stayed the interim order of the High Court directing a fresh examination in that case. Relying on the interim order of this Court dated 28 October 2021, the High Court vacated its interim order and dismissed the writ petition filed by the appellant., The Court heard Mr Rushabh Vidyarthi, learned counsel for the appellant, and Mr Rupesh Kumar, learned counsel for the first respondent, who appeared on caveat. Since the dispute essentially concerns the appellant and the first respondent, notice to the other respondents is dispensed with., Applicable laws and guidelines. On 29 August 2018, the Ministry of Social Justice and Empowerment (Department of Empowerment of Persons with Disabilities) issued guidelines for conducting a written examination for persons with benchmark disabilities. The guidelines underscore the need for a comprehensive policy. Paragraph 1, Clause II stipulates that there should be a uniform and comprehensive policy across the country for persons with benchmark disabilities for written examinations, taking into account improvement in technology and new avenues, and providing a level playing field, with flexibility to accommodate specific needs on a case‑to‑case basis. Paragraph 1, Clause III provides that there is no need to stipulate separate criteria for regular and competitive examinations. The remaining guidelines prescribe several facilities by way of reasonable accommodation, including the facility of a scribe/reader/lab assistant for a PwBD who has limitation in writing, an option of choosing the mode for taking the examinations such as Braille, computer, or large print, and compensatory time for appearing in the examination., Paragraph 1, Clause XII of the Guidelines for Written Examinations provides for compensatory time in the following terms: The term 'extra time' or 'additional time' should be changed to 'compensatory time' and shall not be less than 20 minutes per hour of examination for persons who are allowed the use of a scribe/reader/lab assistant. All candidates with benchmark disability not availing the facility of a scribe may be allowed additional time of a minimum of one hour for an examination of three‑hour duration. If the duration of the examination is less than an hour, the additional time should be allowed on a pro‑rata basis, not less than five minutes and in multiples of five. Paragraph 2 of the notification issuing the guidelines stipulates that they should be scrupulously followed by all recruitment agencies, academic and examination bodies under the administrative control of each ministry or department., NEET Bulletin 2021. Chapter V of the NEET Bulletin 2021, issued by the first respondent, deals with counselling and reservation for admission to MBBS and BDS courses. In compliance with the Ministry of Social Justice and Empowerment's Guidelines for Written Examination, Clause 5.4 deals with the facilities to be provided to PwBD candidates while appearing in the examination. Clause 5.4 states: Facilities for PwBD candidates to appear in the exam – a candidate with one of the benchmark disabilities holding a Disability Certificate in the format prescribed in Appendix VIII‑A is entitled to the facility of a scribe, if physically limited, certified by a CMO/Civil Surgeon/Medical Superintendent of a Government Health Care Institution in the format given at Appendix VIII‑C, and, as a measure of caution due to the COVID‑19 pandemic, the candidate must bring his/her own scribe along with a Letter of Undertaking given at Appendix VIII‑D. The candidate is also entitled to compensatory time of one hour for an examination of three‑hour duration, whether or not the candidate uses the facility of a scribe., The minimum degree of disability should be 40 per cent (benchmark disability) to be eligible for reservation for persons with specified disability. The extent of specified disability shall be assessed in accordance with the Guidelines for the purpose of assessing the extent of specified disability under the Rights of Persons with Disabilities Act 2016, notified in the Gazette of India by the Ministry of Social Justice and Empowerment on 4 January 2018. No change in the category will be entertained after the last date specified by the National Testing Agency for NEET (UG)‑2021 registration, and no subsequent changes will be effective after the declaration of NEET (UG) Score 2021., Appendix VIII‑A of the NEET Bulletin 2021 provides the format for a certificate of disability. The relevant portion includes the name of the designated centre (as per Appendix VIII‑B), certification that the person has a specified disability, and details of the disability type, such as physical, visual, hearing, speech and language, intellectual disability, specific learning disabilities (including dyslexia, dysgraphia, dyscalculia, dyspraxia, developmental aphasia), and autism spectrum disorders., Appendix VIII‑B provides a list of authorised centres for the issuance of disability certificates. Appendix VIII‑C provides a format for a certificate regarding the physical limitation of an examinee to write the examination., Submissions of the appellant's counsel: (i) In 2017, the appellant's school teachers suspected her of a typical case of learning disabilities and advised her to seek an urgent diagnosis. She was referred to LTMG Sion Hospital, Paediatric Neurodevelopment Centre, where she was diagnosed with Dysgraphia, popularly known as a writer's cramp. (ii) On 6 June 2017, a certificate of disability was issued by LTMG Sion Hospital. In March 2019, the appellant appeared for the class 10 CISCE examination where she was allowed the facility of a scribe and passed with an aggregate of 92.5 per cent. (iii) In September 2021, the appellant passed her class XII examinations with an aggregate of 87.4 per cent and a best‑of‑four special score of 90.25 per cent. (iv) Anticipating the NEET, the appellant approached Grant Medical College on 28 July 2021 and was directed to Cooper Hospital Mumbai and thereafter to LTMG Sion Hospital for requisite tests and renewal of her earlier certificate dated 6 June 2017. A disability certificate dated 7 September 2021 was issued, but the name of her mother was misspelt, and the corrected certificate was issued on 15 September 2021 and uploaded by the Department of Empowerment of Persons with Disabilities on 23 September 2021. (v) The admit card for the NEET required her to state her PwD status, which she answered affirmatively. (vi) On 12 September 2021, the allotted examination centre did not grant her the compensatory hour on the ground that the centre was not informed of such a rule and forcibly collected her answer sheet along with the general category students. (vii) The appellant lodged a protest with the first respondent by an email dated 12 September 2021 and received an auto‑generated reply dated 13 September 2021., Submissions of the first respondent's counsel: (i) The appellant appeared in NEET and attempted 84 out of 180 questions, answering 50 correctly and 34 incorrectly, and was awarded 166 marks out of 720. (ii) The appellant secured rank 1721 in the PwD category, rank 206003 in the General category, and an All India rank for counselling of 661699. (iii) The first respondent considered the case and deliberated on possible relief such as awarding proportionate marks, but a total of 1,544,275 candidates appeared for the examination, and any alteration in the result at this stage would prejudice candidates ranked above the appellant and cause further delays in the admission process. (iv) To bring more clarity and sensitisation towards the requirement of a scribe and compensatory time for NEET (UG) 2022, guidelines will be issued to all stakeholders, including candidates, invigilators and superintendents, requiring declaration of disability status, type of disability, need for compensatory time, and upload of the disability certificate at the time of registration, with the admit card reflecting these details., Analysis: The grievance of the appellant is that on 12 September 2021, the allotted examination centre did not grant her the compensatory hour on the ground that the centre was not informed of such a rule. Dysgraphia is contemplated as a specified disability in Entry 2(a) of the Schedule to the Rights of Persons with Disabilities Act 2016, which defines intellectual disability and specific learning disabilities, including dysgraphia. Through the appellant's certificates dated 6 June 2017 and 23 September 2021, it is evident that she is a PwBD having dysgraphia for the purposes of Section 2(r) of the Rights of Persons with Disabilities Act 2016., Obligations under the NEET Bulletin 2021: The roles, powers and functions of the first respondent are specified in the NEET Bulletin 2021. Paragraph 2.3 contains necessary disclaimers and clarifies the functions of the first respondent. Sub‑clause 2.3.1 states that the responsibility of the National Testing Agency is limited to inviting online applications, conducting the entrance test, declaring the result, and providing All India Rank to the Directorate General of Health Services, Ministry of Health and Family Welfare, Government of India. Sub‑clause 2.3.2 provides that the information in the bulletin relating to pattern of exam, syllabus, eligibility criteria, quota of seats, reservation, PwBD, and admission norms is as per the norms set out by the respective regulatory bodies. Sub‑clause 2.3.3 states that the result and All India Rank will be prepared and notified by the National Testing Agency as per the criteria fixed by the regulatory bodies. Sub‑clause 2.3.4 provides that in case of any doubt or dispute, the information in the respective regulations and notifications shall be considered authentic and final., Paragraph 5.3 of the NEET Bulletin 2021 specifically provides guidelines for PwD candidates: 5.3.1 – Candidates with a disability shall be considered for admission in medical courses against 5 per cent of the total seats, in accordance with the criteria prescribed under the Regulation on Graduate Medical Examination (1997) as amended up to 13 May 2019, and the PwBD certificate shall be in the format given at Appendix VIII‑A and from the designated centres at Appendix VIII‑B. 5.3.2 – For AIIMS, PwD reservation on a horizontal and category basis will be followed subject to evaluation by the Medical Board of Institute to determine eligibility. 5.3.3 – Candidates who consider themselves eligible are advised to ensure eligibility by getting examined at any Government Medical College, District Hospital or Government Hospital, which shall issue a disability certificate in reference with Chapter VIII of the Rights of Persons with Disabilities Rules, 2017, as per the Schedule to the Rights of Persons with Disabilities Act 2016 and the Guidelines notified by the Ministry of Social Justice and Empowerment on 4 January 2018.
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The certificate shall ascertain whether a candidate can apply to the National Testing Agency for appearing in the National Eligibility cum Entrance Test (NEET) Undergraduate 2021 under the Persons with Benchmark Disabilities (PwBD) quota only., After selection under the PwBD category, candidates must produce a Disability Certificate issued by the Disability Assessment Board, assessed per criteria prescribed under the Regulations on Graduate Medical Education, 1997 as amended up to 14 May 2019. Candidates after result declaration must appear before the Disability Assessment Board to determine registration for common online counselling. Ineligible candidates cannot register; any provisional allotment would be fraudulent. Physical verification of certificates occurs upon reporting for admission., Certificates issued by authorized centres (Appendix VIII-B) designated for the purpose of the Directorate General of Health Services (DGHS) shall only be considered for admission; no other certificates from other government medical colleges, district hospitals or government hospitals will be accepted., The Disability Certificate format given in Appendix VIII-A (DGHS Notice Ref. No. U 11011/04/2020/05-MEC dated 26 October 2020) must be issued by designated centres (Appendix VIII-B) as per criteria under the Regulations on Graduate Medical Education (1997) as amended up to 14 May 2019 with respect to common counselling conducted by the Medical Counseling Committee (MCC) / DGHS for All India Quota seats and for medical institutions subject to common counselling., Designated counselling authorities of State/UT governments shall constitute Disability Assessment Boards/Centres for assessing suitability of candidates per the same criteria and shall notify the same on their websites., The reservation policy prescribed by the government will be followed by admitting institutes; candidates are advised to look for details at the time of admission., Paragraph 5.3.1 indicates that a Person with Disability (PwD) shall be considered for admission to medical courses for five percent of total seats in accordance with the Regulations on Graduate Medical Education 1997 as amended up to 13 May 2019. The PwBD certificate must be prepared in the format prescribed in Appendix VIII-A and from a designated centre specified in Appendix VIII. Appendix VIII contains the Graduate Medical Education Regulations (Amendment) 2019. The amendment substitutes Appendix H with Appendix H-1, which provides guidelines regarding admission of students with specified disabilities under the Rights of Persons with Disabilities Act, 2016 with respect to MBBS admission., Note 1: The Certificate of Disability shall be issued in accordance with the Rights of Persons with Disabilities Rules, 2017 notified in the Gazette of India by the Ministry of Social Justice and Empowerment on 15 June 2017. Note 2: The extent of specified disability shall be assessed in accordance with the Guidelines for assessing the extent of specified disability under the Rights of Persons with Disabilities Act, 2016 (49 of 2016) notified on 4 January 2018. Note 3: The minimum degree of disability should be 40 percent (Benchmark Disability) to be eligible for reservation for persons with specified disability., Appendix VIII-A contains a format of the certificate of disability, providing the rank obtained in NEET and roll number. The certificate cannot be issued before the candidate appears for NEET and results are declared. It bears endorsement that it must be issued as per Gazette notification dated 5 February 2019 / 13 May 2019 for admission to medical courses in the All India Quota., Paragraph 5.3.3 of the NEET Bulletin 2021 requires candidates who consider themselves eligible for the PwD category to ensure eligibility by getting examined at a government medical college, district hospital or government hospital which would issue a disability certificate with reference to Chapter VII of the Rights of Persons with Disabilities Rules 2017. Such a certificate is issued pursuant to the schedule to the Rights of Persons with Disabilities Act 2016 and guidelines notified on 4 January 2018. Paragraph 5.3.3 clarifies that this certificate does not confer a right to seek admission under the PwBD quota., Upon selection under the PwBD category, the candidate must produce a disability certificate issued by the Disability Assessment Board as per guidelines under Paragraph 5.3.4. The Board assesses candidates with reference to the criteria prescribed under the Regulations on Graduate Medical Education 1997 as amended up to 14 May 2019. Hence, after result declaration, PwBD candidates must appear before the Disability Assessment Board to determine registration for common online counselling., Paragraph 5.3.5 specifies that certificates (Appendix VIII-B) issued by centres authorized by DGHS shall only be considered for admission. Paragraph 5.3.6 also stipulates that the disability certificate issued in Appendix VIII-A format by a centre designated under Appendix VIII-B shall be issued in terms of the criteria regulating common counselling., The discussion indicates that the first respondent, as a testing agency, has specific functions clarified in the NEET Bulletin 2021. The appellant, who suffers from dysgraphia with a disability of 40 percent, suffered a series of errors in the admission process for graduate medical courses in 2021, over which she had no control., The first respondent, as a testing agency, was duty‑bound to comply with the Guidelines on Written Examination dated 29 August 2018, prescribed by the Ministry of Social Justice and Empowerment. The appellant’s grievance is that she was deprived of the compensatory additional one hour for attempting the examination because the second respondent (the designated centre) was unaware of the rights of PwD candidates and the corresponding obligations. This reflects the responsibility of the first respondent to ensure that personnel at examination centres are trained and provided with clear guidelines for implementation of provisions for PwD. In the absence of adequate training, rights conferred on candidates with specified disabilities by Parliament are nullified., The tragedy of errors was compounded by the manner in which the case proceeded before the High Court of India. On 11 October 2021, the first respondent’s counsel informed the High Court that the appellant was not entitled to an additional one hour because she had not obtained a disability certificate in Appendix VIII-A from a centre designated in Appendix VIII-B. The appellant’s counsel agreed to produce a certificate from an authorized agency in Appendix VIII-B within a week. The High Court directed the first respondent to consider the certificate within a week of its production., It is unfortunate that the first respondent issued such instructions to its counsel. The statement of the first respondent before the High Court on 11 October 2021 was plainly contrary to the provisions of the NEET Bulletin 2021. Paragraph 5.4(b) of the NEET Bulletin 2021 indicates that the appellant was entitled to compensatory time of one hour for a three‑hour examination, irrespective of reliance on a scribe. Paragraph 5.3 indicates that the requirement of a certificate in Appendix VIII-A applies after results are declared. If this were not so, there would be no purpose in requiring the candidate to disclose the NEET rank. Paras 5.3.1, 5.3.3, 5.3.4 and 5.3.5 make clear that a certificate issued by a designated centre under Appendix VIII-B is to be considered only at the stage of admission. Yet, the High Court was led to believe that an Appendix VIII-A certificate from a designated centre was required to seek an extra hour of compensatory time. This confusion between authorities at the first respondent led to a tragedy affecting the legitimate rights of a student with a specified disability., D.2 Applicability of the Rights of Persons with Disabilities Act 2016. D.2.1 Distinction between PwD and PwBD. In Vikash Kumar v. Union Public Service Commission, this Court observed that the concept of benchmark disability applies to Chapter VI of the Rights of Persons with Disabilities Act 2016, titled Special Provisions for Persons with Benchmark Disabilities. These provisions include Section 31 (free education), Section 32 (reservation), Section 33 (identification of posts), Section 34 (reservation), Section 35 (incentives to employers), Section 36 (special employment exchange), and Section 37 (special schemes and development programmes)., Section 2(r) defines “person with benchmark disability” as a person with not less than forty percent of a specified disability, certified by the certifying authority. Section 2(s) defines “person with disability” as a person with long‑term physical, mental, intellectual or sensory impairment which, in interaction with barriers, hinders full and effective participation in society equally with others. Rights and entitlements conferred upon PwD are specified in Chapter II. Section 3 embodies the duty of the appropriate government to ensure equality, dignity and respect for integrity. Sub‑section (5) requires reasonable accommodation for PwD. Section 4 requires measures to ensure women and children with disabilities enjoy equal rights., These rights cannot be constricted by adopting the definition of benchmark disability as a condition precedent for availing rights. Benchmark disability is used only in Chapter VI. To seek admission under the five percent quota, the candidate must, under Section 32(1), fulfil the description of a PwBD. However, where the statute confers broader rights on PwD, those rights cannot be diluted by the benchmark definition., Section 32 provides that all government higher education institutions and other aided institutions shall reserve not less than five percent of seats for persons with benchmark disabilities and shall give an upper age relaxation of five years. This has been clarified in Vikash Kumar, emphasizing that Section 2(s) cannot be constrained by the measurable quantifications of Section 2(r)., The concept of benchmark disabilities has been adopted in relation to provisions of Chapter VI and Chapter VII. Conflating rights of PwD with benchmark disability disserves the purpose of the Rights of Persons with Disabilities Act 2016. Denying rights to PwD because they do not meet benchmark disability is ultra vires., In Vikash Kumar, the Union Public Service Commission (UPSC) relied on the Civil Services Examination Rules 2018 to submit that only PwBD can be provided a scribe. This Court held that the petitioner was entitled to reasonable accommodation in the form of a scribe even without benchmark disability. Despite this clarification, the National Testing Agency (NTA) continues to restrict facilities to PwBD. Reservation under Section 32 is available to PwBD; other facilities for PwD cannot be restricted by administrative order., D.2.2 Right to Inclusive Education. Education is key to social and economic inclusion. Inclusive education is indispensable for universal, non‑discriminatory access. The Convention on the Rights of Persons with Disabilities recognises inclusive education as essential. The Rights of Persons with Disabilities Act 2016 provides statutory backing. Section 2(m) defines “inclusive education” as a system wherein students with and without disability learn together and teaching is suitably adapted., Chapter III of the Rights of Persons with Disabilities Act contains provisions on rights of PwD to inclusive education. Section 17 mandates suitable modifications in curriculum and examination system, including extra time or a scribe. Section 18 obliges government and local authorities to promote participation of PwD in adult and continuing education. Chapter VI provides reservation for PwBD. The distinction between PwD (broader) and PwBD (subset) extends to inclusive education efforts., Reasonable accommodation is defined in Section 2(y) as necessary and appropriate modification and adjustments without imposing a disproportionate burden, to ensure enjoyment of rights equally with others. The principle of reasonable accommodation is at the heart of equality under the Rights of Persons with Disabilities Act 2016. Denial of reasonable accommodation amounts to discrimination. The State has a positive obligation to create conditions for full participation., In the present case, the appellant was denied her entitlement to reasonable accommodation and the State failed to fulfil its positive duty of protecting her right to inclusive education. The Guidelines for Written Examination dated 29 August 2018 issued by the Ministry of Social Justice and Empowerment govern written examinations for PwD candidates., In Vidhi Himmat Katariya v. State of Gujarat, a three‑judge Bench observed that the certificate under Appendix VIII-A is applicable while seeking admission to medical courses. The essential eligibility criteria must be considered when petitioners seek admission under the PwD quota. The Expert Committee report on guidelines for admission of persons with specified disabilities was placed before the Executive Committee of the Medical Council of India (MCI) on 5 June 2018. The Court directed admission as per the unamended Graduate Medical Education Regulations, 1997, until the amendment dated 4 February 2019 was published. Therefore, the essential eligibility criteria as per Appendix H apply at the time candidates seek admission, after NEET results are declared., Under the Rights of Persons with Disabilities Act 2016, there is a clear distinction between rights available to a candidate at the examination stage (Section 17(i) of Chapter III) and rights at the admission stage (Section 32 of Chapter VI). The High Court’s direction that the appellant seek a certificate in Appendix VIII-A to obtain compensatory time was a miscarriage of justice, arising from ambiguity in the NEET Bulletin 2021 and inadequate training of the second respondent (the designated centre)., The injustice was compounded by the High Court’s instructions to the first respondent’s counsel, which were contrary to the Guidelines for Written Examination dated 29 August 2018 and Paragraph 5.4(b) of the NEET Bulletin 2021. Paragraph 5.4(b) seeks to enforce the provision of compensatory time for PwD candidates., Redressing the injustice. The first respondent’s submissions suggest issuing further guidelines to candidates, invigilators, centre supervisors, observers and city coordinators, but this does not address the immediate issue of the appellant’s suffering caused by inadequate knowledge at the designated centre and ambiguity in the NEET Bulletin 2021., One perspective is that in a competitive entrance examination such as NEET, a large number of candidates appear nationwide, and individual cases of prejudice are an unfortunate consequence. The alternative view is that the first respondent must use its experience to proactively rectify deficiencies and ensure that injustices to students are remedied. The career of a student depends on proper conduct of NEET and adherence to binding norms prescribed by the Ministry of Social Justice and Empowerment., The appellant does not claim misfeasance by the first respondent but alleges negligence in complying with rights and entitlements provided to PwD under the Rights of Persons with Disabilities Act 2016. Safeguards must be enforced and breaches answerable at law. Responsibility without accountability is anathema to the Constitution., The first respondent is justified in taking the stance that a re‑examination cannot be ordered for one student. The option of a re‑examination for a single student was rejected by a two‑judge Bench of the Supreme Court of India in National Testing Agency v. Vaishnavi Vijay Bhopale on 12 November 2021. In that case, two respondents appeared in NEET on 12 September 2021; a mix‑up of answer booklets and sheets occurred. The respondents reported the mix‑up to invigilators, who did not rectify it, and the respondents answered as many questions as they could within the remaining time.
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In pursuance of an interim order of the High Court dated 7 October 2021, the first respondent suggested that the answer key would be implemented for scoring and evaluation of the six candidates in whose cases there was a mix‑up in the distribution of the test booklet code and OMR sheets as per the sequence of questions given in the test booklet code. However, the High Court on 20 October 2021 directed the National Testing Agency to hold a fresh examination for the two candidates. On 28 October 2021, the Supreme Court of India stayed the judgment of the High Court and requested the Solicitor General to suggest a course of action to be adopted in respect of the two students who have suffered due to the fault of the invigilators. When the proceedings were taken up by the Supreme Court of India on 12 November 2021, the Solicitor General informed the Court that the results of the National Eligibility cum Entrance Test (Undergraduate) had been declared and that the answer sheets of the two candidates had been corrected on the basis of the suggestion given by the first respondent to the High Court. The concession made by the National Testing Agency was recorded by the Supreme Court of India in its order dated 12 November 2021: The learned Solicitor General submitted that the answer sheets of respondent Nos. 1 and 2 have been corrected on the basis of the suggestion that was given by the petitioner to the High Court. Without insisting on the test booklet code and OMR sheets being different, the answers given by the petitioners have been evaluated. Against this backdrop, the Bench consisting of Justice L. Nageswara Rao and Justice B. R. Gavai set aside the order of the High Court directing the holding of a fresh examination., The Supreme Court of India observed that there is no dispute that there was a mix‑up in distribution of the answer sheets and the test booklet where the code is different. Realising that a wrong answer given to a question would attract negative marks and also relying upon the instructions given to the candidates, respondent Nos. 1 and 2 pointed out to the invigilators that the correct answer sheet with a proper code has to be provided to them. The Court perused the answer sheets of respondent Nos. 1 and 2 and the marks given to them from the material furnished by the learned Solicitor General on 28 October 2021. They have attempted most of the questions and no negative marks have been given to them. The Court found substance in the submissions of Mr. Choudhary that due to the loss of precious time, respondent Nos. 1 and 2 could not answer all the questions and also appreciated the mental state of mind of respondent Nos. 1 and 2 due to the confusion. Though the Court sympathised with the cause of respondent Nos. 1 and 2, it found it difficult to direct re‑examination for them alone and therefore set aside the direction given by the High Court to conduct re‑examination for respondent Nos. 1 and 2., The above extract indicates that during the course of the proceedings before the High Court, the first respondent, having realised that the mistake had occurred due to the fault of the invigilators which was not rectified, took steps to alleviate the hardship to the two students to the extent that was practical. In view of the benefit extended by the first respondent to the students, the Supreme Court of India held that the direction to conduct a fresh examination could not be sustained. In the present case, the appellant had sought a re‑examination where she would be allowed compensatory time as mandated by the Guidelines for Written Examination and the NEET Bulletin 2021. The Court is in agreement with the view in Vaishnavi Vijay (supra) that holding a fresh examination is neither practicable nor proper. Holding a fresh examination will delay medical admissions and cause uncertainty and chaos. To that extent, the denial of the relief sought for conducting a fresh examination for the appellant is not disturbed. At the same time, the Court is of the view that the first respondent must factor in the possibility of such errors occurring in the process of conducting the National Eligibility cum Entrance Test (Undergraduate). The manner in which the first respondent deals with cases of serious prejudice, as occasioned in the present case, has to be decided by it as an expert agency., The Supreme Court of India would eschew the course of dictating the manner in which the grievance should be rectified, leaving it to the discretion of the testing agency which is entrusted with the overall responsibility of conducting the examination. The first respondent took certain steps as noted above in Vaishnavi Vijay (supra). Similarly, in the present case, the Court is of the categorical view that the first respondent cannot shirk or abrogate its responsibility to rectify the injustice which has been caused to the appellant. The first respondent may consider extrapolation of the marks awarded to the appellant or grant compensatory marks. Similar to the steps in Vaishnavi Vijay (supra), the first respondent could also consider adopting a no‑negative‑marks scheme. The Court is not restricting the first respondent to only the above options and will leave the decision on the modalities of remedying the injustice caused to the appellant to the first respondent. The injustice which has resulted is clearly due to a breach in observing the entitlements due to the appellant under the Rights of Persons with Disabilities Act 2016., During the course of the hearing, the first respondent urged that sixteen lakh students appeared for the National Eligibility cum Entrance Test (Undergraduate) and hence injustice to a one‑off student cannot be remedied. In the written submissions filed on behalf of the first respondent, the following statement was submitted in regard to the candidature of the appellant vis‑vis other candidates. The petitioner had appeared in NEET (UG) 2021 on 12 September 2021 as a candidate in General (Unreserved) – Persons with Disabilities category. She had attempted 84 out of 180 questions, answered 50 questions correctly and 34 questions incorrectly and was awarded 166 marks out of 720 marks in the result declared on 1 November 2021. Accordingly, she qualified in NEET (UG) 2021 and secured the following ranks for admission to MBBS/BDS courses: All India Rank for Counselling – 661699, General (Unreserved) – 206003, Persons with Disabilities – 1721. The rank of the petitioner has been juxtaposed with the other Persons with Disabilities candidates of NEET (UG) 2021 as follows: Category – General, EWS, SC, ST, OBC, Total; All India Registered – 1801, 533, 740, 243, 2883, 6200; Qualified – 783, 262, 278, 76, 1285, 2684. State – Maharashtra: Registered – 225, 109, 117, 25, 444, 920; Qualified – 85, 46, 51, 8, 200, 390. Out of 390 candidates of the Persons with Disabilities category, her rank is 249. The Respondent No. 1 has duly considered the case of the petitioner to try to find some solution including awarding additional proportionate marks. However, it has been observed that there are in total 15,44,275 candidates (out of total registered candidates 16,14,777) who had appeared in NEET (UG) 2021 on 12 September 2021 for which result has already been declared on 1 November 2021 and All India Rank has already been forwarded on 9 November 2021 by the Respondent No. 1 to the Directorate of Health Services, Ministry of Health & Family Welfare, Government of India to conduct counselling for admission to MBBS/BDS courses for the academic year 2021‑21. Therefore, any alteration in the result at this stage will cause serious prejudice to the numerous candidates who are presently ranked above the petitioner but would have to be placed below her, thereby disturbing the ranks of other candidates. None of such students are before the Supreme Court of India and may result in further complications or litigations. Further, it may also affect the counselling process which may result in delay in the completion of the admission process., The above statement indicates that the appellant has secured an All India Rank of 1721 out of 2684 candidates qualified in the Persons with Disabilities category. In relation to the State of Maharashtra, the appellant has secured rank 249 out of 390 candidates in the Persons with Disabilities category. The first respondent has stated that approximately 15.4 lakh candidates appeared at the NEET (UG) 2021 on 12 September 2021 for which the result was declared on 1 November 2021 and the All India Rank was forwarded on 9 November 2021 to the Ministry of Health and Family Welfare, Government of India to conduct counselling for admission. It was submitted that alteration of the result at this stage would prejudicially affect other candidates who are ranked above the appellant., In essence, the above submissions boil down to the first respondent informing the Court that in an examination of such large proportions where over 16 lakh students registered and over 15 lakh students appeared, it would not be possible to undo the injustice which has been done to a single candidate. The first respondent must remember that all authority under the law is subject to responsibility and, above all, to a sense of accountability. The first respondent is governed by the rule of law and by the constitutional requirement of observing fairness. Behind the abstract number of 15 lakh students lie human lives that can be altered due to the inadvertent, yet significant errors of the first respondent., The first respondent, as an examining body, was bound to scrupulously enforce the Guidelines for Written Examinations dated 29 August 2018 which provides for specific relaxations. The appellant has suffered injustice by a wrongful denial of these relaxations and a lack of remedy by the Supreme Court of India would cause irretrievable injustice to the life of the student. The Rights of Persons with Disabilities Act 2016 prescribing beneficial provisions for persons with specified disabilities would have no meaning unless it is scrupulously enforced., In our view, the first respondent cannot be allowed to simply get away when confronted with the situation in hand whereby injustice has been caused to a student by standing behind the situation of a large competitive examination. Individual injustices originating in a wrongful denial of rights and entitlements prescribed under the law cannot be sent into oblivion on the ground that these are a necessary consequence of a competitive examination., Accordingly, in view of the above discussion, we conclude and direct as follows: (i) The relief sought by the appellant for holding a re‑examination for the National Eligibility cum Entrance Test (Undergraduate) is denied; (ii) The appellant was wrongfully deprived of compensatory time of one hour while appearing for the NEET without any fault of her own, despite her entitlements as a Person with Disabilities and a Person with Benchmark Disabilities. Accordingly, the first respondent is directed to consider what steps could be taken to rectify the injustice within a period of one week and shall take necessary consequential measures under intimation to the Director General of Health Services; (iii) In the future, the first respondent shall ensure that provisions which are made at the NEET in terms of the rights and entitlements available under the Rights of Persons with Disabilities Act 2016 are clarified in the NEET Bulletin by removing ambiguity, as noticed in the present case; (iv) Having due regard to the decision of this Court in Vikash Kumar (supra) and the statutory provisions contained in the Rights of Persons with Disabilities Act 2016, facilities which are provided by the law to Persons with Disabilities shall not be constricted by reading in the higher threshold prescribed for Persons with Benchmark Disabilities; (v) By way of abundant caution, it is clarified that for the purpose of availing of the reservation under Section 32 of the Rights of Persons with Disabilities Act 2016 or an upper age relaxation as contemplated in the provisions, the concept of benchmark disability continues to apply; (vi) It was brought to our notice that the second respondent was ignorant about the facilities to which the appellant was entitled. There was evident confusion between the authorities working at the first respondent as well. The persons working for the first respondent and exam centres like that of the second respondent should be sensitised and trained on a regular basis to deal with requirements of reasonable accommodation raised by Persons with Disabilities., The steps taken by the first respondent in furtherance of direction (ii) above in Paragraph 57 must be communicated to the Registry of the Supreme Court of India by filing a status report within a period of two weeks from the date of this judgment., The appeal is disposed of in the above terms. Pending applications, if any, shall stand disposed of.
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The petitioner retired as Regional Engineer from the Kerala State Housing Board (the Board) on 31 May 2002. The third respondent, the Secretary of the Board, by proceedings dated 20 May 2006, sanctioned the pensionary benefits of the petitioner but withheld his Deferred Compensatory Retirement Gratuity (DCRG) amounting to Rs. 2,57,400 and also the last pay for the month of May 2002 amounting to Rs. 21,712 towards his liability on account of audit objections. Aggrieved by the withholding of DCRG, the petitioner approached the Kerala High Court and the Court, by Exhibit P1 judgment, directed the Board to disburse the DCRG withheld together with the salary for May 2002 within one month from the date of receipt of the judgment. The entitlement of the petitioner to claim interest for the delay in disbursement of DCRG and pay for the last month was left open. Pursuant to Exhibit P1 judgment, the Secretary of the Board, by Exhibit P2 proceedings dated 4 April 2012, accorded sanction for payment of DCRG and the last month's pay., The petitioner, who was an employee of the Board, is regulated by the Kerala State Housing Board Employees' (Pension and Other Retirement Benefits) Regulations, 1990. Regulation 4 of those Regulations provides that the rules contained in Part III of the Kerala Service Rules for the time being in force and the decisions, rulings and notifications issued by the Government of Kerala, except those specified in the schedule appended to the Regulations, shall mutatis mutandis apply to all employees of the Board for regulating their pension and other retirement benefits. Rule 68 of Part III of the Kerala Service Rules deals with the amount of gratuity payable to an employee. The petitioner falls within the ambit of section 2(e) of the Payment of Gratuity Act, 1972. Although he is governed by the Kerala Service Rules, section 14 of the Payment of Gratuity Act, 1972 provides that the provisions of the Act and the rules made thereunder shall have overriding effect on other enactments. The Government of Kerala has not exempted the Board from the operation of the provisions of the Payment of Gratuity Act, 1972 invoking its powers under section 5 of the Act. Consequently, under the overriding provisions of section 4(3) of the Payment of Gratuity Act, 1972, employees of the Board can claim gratuity in terms of that section, but they cannot simultaneously claim gratuity under the Kerala Service Rules. If the employee claims gratuity under the Payment of Gratuity Act, section 4 provides for payment of gratuity at the rate of fifteen days' wages for each completed year of service subject to a maximum as may be notified by the Central Government under sub‑section 3. If the employee claims DCRG under the Kerala Service Rules, the amount of gratuity is determined under Rule 68, subject to the maximum prescribed therein, which is one half of the emoluments of an employee for each completed year of qualifying service subject to a maximum of sixteen times the emoluments., As per section 4 of the Payment of Gratuity Act, 1972, gratuity is payable to an employee on termination of his employment. The petitioner’s employment terminated on 31 May 2002 on superannuation, making the gratuity payable from that date. He may claim gratuity either under the Payment of Gratuity Act or under the Kerala Service Rules, but the amount must be determined according to the applicable provision and cannot exceed the maximum notified under the respective enactment as on the date the gratuity becomes payable. Even if the petitioner’s claim were under the Payment of Gratuity Act, the maximum amount of gratuity payable under that Act must be determined with respect to the date on which the gratuity became payable, not the date of sanction or actual disbursement. Accordingly, there is no merit in the petitioner’s contention that he is entitled to the maximum gratuity of Rs. 10,00,000 as per section 4(3) of the Payment of Gratuity Act, as amended by Act 15 of 2010. The Kerala High Court, by Exhibit P1 judgment, has left open the petitioner’s entitlement to claim interest for the delay in disbursement of DCRG. The petitioner may approach the third respondent for interest; upon receipt of a representation, the third respondent shall consider it and pass appropriate orders within two months. The writ petition is disposed of.
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W.P. (Criminal) No. 402 of 2021\nJiramani Devi, Petitioner\nVersus\n1. State of Jharkhand through Director General of Police, Dhurwa, Ranchi\n2. Superintendent of Police, Latehar\n3. Union of India through Directorate General, Central Reserve Police Force, Block No. 1 (Central Government Offices), CGO Complex, Lodhi Road, New Delhi\nRespondents\nFor the Petitioner: Mr. Shailesh Poddar, Advocate\nFor the State: Mr. Manoj Kumar, Government Advocate III\nFor the Union of India: Mr. Prashant Vidyarthi, Advocate, Heard on 14 August 2023: Mr. Shailesh Poddar, learned counsel for the petitioner; Mr. Manoj Kumar, learned Government Advocate III for the State; and Mr. Prashant Vidyarthi, learned counsel for the Union of India. The petition seeks a direction to hand over the investigation to the Central Bureau of Investigation or the Special Branch of the Criminal Investigation Department with regard to the death of the petitioner’s husband, the late Bramhadev Singh., The petitioner states that on 12 June 2021, about ten to eleven tribal men from Piri Village gathered in front of the house of Rajeshwar Singh at around 8 a.m. to go hunting as part of celebrating Nem Sarhul, an annual tribal festival in Jharkhand. The villagers customarily hunt small animals such as rabbits and boars using a locally made bhartua gun, which is loaded with gunpowder and can fire only a single shot. Among the group was Bramhadev Singh, aged about 24 years, the petitioner’s husband. After moving about 50 feet into the forest, security personnel started firing from the opposite side without any warning. Some villagers hid behind a mahua tree; Bramhadev, Dinanath and four others raised their hands, placed their guns on the ground and shouted that they were ordinary villagers, not Maoists, and pleaded not to be shot. Bramhadev removed his t‑shirt and pants, raised his hands and pleaded his innocence, but the firing continued. Dinanath Singh was first hit in the hand, followed by Bramhadev Singh, who fell to the ground. The remaining persons fled the scene., The petitioner further states that Bramhadev’s aunt, Panpatiya Devi, arrived at the spot and was chased away and verbally abused by the security forces. Villagers observed security personnel lift Bramhadev from the forest, carry him across a river, and place him on the ground while he was still alive, his hands and feet trembling. The forces then shot him again, changed his clothes, and he was later seen wearing blue jeans and a yellow t‑shirt, a detail widely reported in the newspapers as part of a cover‑up amounting to a fake encounter. The petitioner and the victim’s elder brother were offered a cash amount of Rs 30,000 to Rs 35,000 and a promised job by the local police, who admitted their mistake and asked the family to accept the money. When the petitioner refused, the police threatened them and lodged a false case, Garu Police Station Case No. 24 of 2021, on 13 June 2021 against six villagers. Despite a complaint to the Officer‑in‑Charge of Garu Police Station and a direction from the Chief Judicial Magistrate of Latehar in Complaint Case No. 378 of 2021 to register an FIR under Section 156(3) of the Criminal Procedure Code, the police did not register the FIR for more than five months., On 13 January 2022, the High Court of Jharkhand, hearing the matter via video conferencing due to the COVID‑19 pandemic, noted the petitioner’s representation that on 12 June 2021, ten to eleven tribal men gathered for hunting during the Nem Sarhul festival and were fired upon without warning, resulting in the death of Bramhadev Singh. The petitioner further submitted that after realizing an innocent villager had been shot, the security forces assaulted the victim again. The petitioner’s wife had made representations before the Deputy Commissioner of Latehar, the Chief Secretary of Jharkhand, and the Director General of Police, Jharkhand, alleging that a fair investigation was not being conducted. The court issued notice to respondents No. 1 to 3; Mr. Manoj Kumar accepted notice on behalf of respondents No. 1 and 2, and Mr. Niraj Kumar accepted notice on behalf of respondent No. 3. The respondents were directed to file counter‑affidavits within four weeks, and the matter was fixed for 17 February 2022., The non‑registration of the FIR despite the magistrate’s order under Section 156(3) of the Criminal Procedure Code was considered by the High Court on 12 May 2022. The State of Jharkhand was directed to file a supplementary counter‑affidavit, after which an FIR (Garu Police Station Case No. 11 of 2022) was finally registered against the named police officials. The case was entrusted to the Criminal Investigation Department, which investigated both cases. On 4 July 2023, the court called for a progress report; a supplementary counter‑affidavit was filed, and Annexure‑D admitted that the late Bramhadev Singh died from a police bullet. Nevertheless, the case was closed on the ground of “mistake of fact” in Garu Police Station Case No. 11 of 2022, and similarly in Garu Police Station Case No. 24 of 2021, the final report cited lack of evidence. Annexure‑D also included a request for proper compensation to the petitioner., The petitioner submits that although the case has been registered against the erring police personnel, the closure on the basis of lack of evidence effectively proves a fake encounter that caused Bramhadev Singh’s death. He further alleges that the victim was tortured and shot again, constituting a second death. The petitioner requests that the matter be handed over to the Central Bureau of Investigation and that suitable compensation be awarded to the petitioner., The State submits that the Criminal Investigation Department has investigated the matter and that final reports in both cases state a mistake of fact and lack of evidence. The State points out that Annexure‑D, annexed to the supplementary counter‑affidavit, recommends proper compensation and therefore requests that the matter be disposed of., The Union of India submits that the Central Reserve Police Force personnel were far from the spot in question from which the deceased was shot., Having considered the submissions of counsel for all parties, the High Court of Jharkhand notes that Annexure‑D admits that Bramhadev Singh died due to a police bullet. An FIR has been registered against the erring police officials, but the case was closed on the ground of a mistake of fact. In view of the admitted facts, an offence under Section 304 of the Indian Penal Code is made out, yet the Criminal Investigation Department has given a clean chit to the police officials., Article 21 of the Constitution of India was considered by the Supreme Court of India in People’s Union for Civil Liberties v. State of Maharashtra & Ors., (2014) 10 SCC 635, regarding police encounters causing death or grievous injury. The Court laid down guidelines (para 31 to 31.16) for thorough, independent investigation of such encounters, including requirements for written intelligence, immediate registration of an FIR, investigation by a senior officer‑supervised team, preservation of evidence, magisterial inquiry under Section 176 of the Criminal Procedure Code, involvement of the National Human Rights Commission where necessary, medical aid to victims, timely submission of reports to the court, and compensation under Section 357‑A of the Code of Criminal Procedure. The guidelines also prescribe that weapons be surrendered for forensic analysis, families be informed, and no out‑of‑turn promotions or gallantry awards be granted without proper verification., The Court observes that accused persons must be punished and that the State’s authority must not be used to shield its officials. Courts must intervene where investigation or prosecution deficiencies are evident, ensuring that investigations are fair, transparent, and judicious as required by Articles 20 and 21 of the Constitution of India. The Court cites Neetu Kumar Nagaich v. State of Rajasthan & Ors., (2020) 16 SCC 777, and Babubhai v. State of Gujarat, (2010) 12 SCC 254, emphasizing that when an investigation is not conducted properly, the Court may order a de novo investigation by an independent agency to prevent miscarriage of justice., In Bharati Tamang v. Union of India, (2013) 15 SCC 578, the petitioner sought a quashing of the charge‑sheet and a mandamus for a de novo investigation by a Special Investigation Team of competent persons. The Court relied on Zahira Habibulla H. Sheikh v. State of Gujarat, (2004) 4 SCC 158, stating that courts must ensure accused persons are punished and that State power is not misused. The Court reiterated that Section 173(8) of the Criminal Procedure Code allows for further investigation, and in exceptional circumstances, the Court may direct a fresh investigation to secure justice., The power of the Constitutional Court to direct reinvestigation was again noted in Pooja Pal v. Union of India & Ors., (2016) 3 SCC 135. The Court held that a citizen who is a de facto complainant in a criminal case alleging cognizable offences against high‑ranking officials may seek a direction for investigation by the Central Bureau of Investigation, but such a direction should be granted only in rare, exceptional situations where credibility and confidence in the investigation are at stake, or where the matter has national or international ramifications. The Court further referred to Anant Thanur Karmuse v. State of Maharashtra & Ors., (2023) 5 SCC 802, and Himanshu Kumar v. State of Chhattisgarh, (2023) 12 SCC 592, reiterating that investigation may be transferred to the Central Bureau of Investigation only in rare and exceptional cases, and that such power must be exercised sparingly, cautiously, and only when necessary to ensure complete justice and protect fundamental rights.
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Services v. Sahngoo Ram Arya, (2002) 5 SCC 521 : 2002 SCC (L&S) 775, had said that an order directing an enquiry by the Central Bureau of Investigation should be passed only when the High Court, after considering the material on record, comes to the conclusion that such material discloses a prima facie case calling for an investigation by the Central Bureau of Investigation or any other similar agency., In an appropriate case when the Supreme Court of India feels that the investigation by the police authorities is not in a proper direction, and in order to do complete justice in the case and if high police officials are involved in the alleged crime, the Supreme Court of India may be justified in such circumstances to hand over the investigation to an independent agency like the Central Bureau of Investigation. By now it is well settled that even after the filing of the charge sheet the Supreme Court of India is empowered in an appropriate case to hand over the investigation to an independent agency like the Central Bureau of Investigation., The extraordinary power of the constitutional courts under Articles 32 and 226 respectively of the Constitution of India qua the issuance of directions to the Central Bureau of Investigation to conduct investigation must be exercised with great caution as underlined by the Supreme Court of India in Committee for Protection of Democratic Rights (State of West Bengal v. Committee for Protection of Democratic Rights, (2010) 3 SCC 571 : (2010) 2 SCC (Cri) 401), observing that although no inflexible guidelines can be laid down in this regard, such an order cannot be passed as a matter of routine or merely because the parties have levelled some allegations against the local police and can be invoked in exceptional situations where it becomes necessary to provide credibility and instil confidence in the investigation, where the incident may have national or international ramifications, or where such an order may be necessary for doing complete justice and for enforcing the fundamental rights., We are conscious of the fact that though a satisfaction of the want of proper, fair, impartial and effective investigation eroding its credence and reliability is the precondition for a direction for further investigation or reinvestigation, submission of the charge sheet ipso facto or the pendency of the trial can by no means be a prohibitive impediment. The contextual facts and the attendant circumstances have to be singularly evaluated and analysed to decide the needfulness of further investigation or reinvestigation to unravel the truth and mete out justice to the parties. The prime concern and the endeavour of the court of law should be to secure justice on the basis of true facts which ought to be unearthed through a committed, resolved and competent investigating agency., The above principle has been reiterated in K.V. Rajendran v. Superintendent of Police, (2013) 12 SCC 480, where a three‑Judge Bench of the Supreme Court of India held that the power of transferring such investigation must be in rare and exceptional cases where the court finds it necessary in order to do justice between the parties and to instil confidence in the public mind, or where investigation by the State Police lacks credibility and it is necessary for a fair, honest and complete investigation, particularly when it is imperative to retain public confidence in the impartial working of the State agencies., Elaborating on this principle, the Supreme Court of India further observed that the Court could exercise its constitutional powers for transferring an investigation from the State investigating agency to any other independent investigating agency like the Central Bureau of Investigation only in rare and exceptional cases, such as where high officials of State authorities are involved, or the accusation itself is against the top officials of the investigating agency thereby allowing them to influence the investigation, and further that it is so necessary to do justice and to instil confidence in the investigation or where the investigation is prima facie found to be tainted or biased., The Supreme Court of India reiterated that an investigation may be transferred to the Central Bureau of Investigation only in rare and exceptional cases. One factor that courts may consider is that such transfer is imperative to retain public confidence in the impartial working of the State agencies. This observation must be read with the observations made by the Constitution Bench in Committee for Protection of Democratic Rights, that mere allegations against the police do not constitute a sufficient basis to transfer the investigation., In Romila Thapar v. Union of India, (2018) 10 SCC 753, Justice A.M. Khanwilkar, speaking for a three‑Judge Bench of the Supreme Court of India (Justice D.Y. Chandrachud dissenting), noted the dictum that the accused does not have a say in the matter of appointment of investigating agency. In reiterating this principle, the Supreme Court of India relied upon its earlier decisions in Narmada Bai v. State of Gujarat, (2011) 5 SCC 79, Sanjiv Rajendra Bhatt v. Union of India, (2016) 1 SCC 111, E. Sivakumar v. Union of India, (2018) 7 SCC 365, and Divine Retreat Centre v. State of Kerala, (2008) 3 SCC 542. The Court observed that the consistent view of this Court is that the accused cannot ask for changing the investigating agency or to do investigation in a particular manner including for court‑monitored investigation., It has been held by the Supreme Court of India in CBI v. Rajesh Gandhi, (1996) 11 SCC 253, that no one can insist that an offence be investigated by a particular agency. An aggrieved person can only claim that the offence he alleges be investigated properly, but he has no right to claim that it be investigated by any particular agency of his choice., The principle of law that emerges from the precedents of the Supreme Court of India is that the power to transfer an investigation must be used sparingly and only in exceptional circumstances. In assessing the plea urged by the petitioner that the investigation must be transferred to the Central Bureau of Investigation, we are guided by the parameters laid down by the Supreme Court of India for the exercise of that extraordinary power., Now, so far as the reliance placed upon the decision of the Supreme Court of India in Vinubhai Haribhai Malaviya v. State of Gujarat, (2019) 17 SCC 1, is concerned, it is required to be noted that in the said decision the Supreme Court of India was considering the powers of the Magistrate. Even in that decision it was observed and held that there is no good reason given by the Court as to why a Magistrate's powers to order further investigation would suddenly cease upon process being issued. It is further observed that the power of the police to further investigate the offence continues right till the stage the trial commences. Article 21 of the Constitution demands no less than a fair and just investigation. In paragraph 42 it was held that there is no good reason why a Magistrate's powers to order further investigation should cease while the police retain the power to investigate until charges are framed. Such a view would not accord with earlier judgments of this Court, including Sakiri Vasu v. State of Uttar Pradesh, (2008) 2 SCC 409, Samaj Parivartan Samudaya v. State of Karnataka, (2012) 7 SCC 407, Vinay Tyagi v. Irshad Ali, (2013) 5 SCC 762, and Hardeep Singh v. State of Punjab, (2014) 3 SCC 92, which have clearly held that a criminal trial does not begin after cognizance is taken, but only after charges are framed., Applying the law laid down by the Supreme Court of India in Dharam Pal v. State of Haryana, (2016) 4 SCC 160 and Bharati Tamang v. Union of India, (2013) 15 SCC 578 and to do complete justice and in furtherance of fair investigation and fair trial, the constitutional courts may order further investigation, reinvestigation or de novo investigation even after the charge sheet is filed and the charges are framed. If the submission on behalf of the accused and even as observed by the High Court that once the charge sheet is filed and the charges are framed there may not be any order for further investigation is accepted, the accused may see to it that the charges are framed to avoid any fair investigation or fair trial, which would lead to a travesty of justice., Be that as it may, even according to the State investigating agency, further investigation is required. As observed and held by the Supreme Court of India in the aforesaid decisions, the victim has a fundamental right to a fair investigation and fair trial. Therefore, mere filing of the charge sheet and framing of the charges cannot be an impediment in ordering further investigation, reinvestigation or de novo investigation, if the facts so warrant., Thus, in view of the above judgments, if a constitutional court comes to a conclusion that the investigation has been done in a perfunctory way and it is only an eyewash, the constitutional court is duty bound to rise to the occasion to pass an appropriate order., In the case in hand, by way of Annexure‑D to the counter affidavit, the Central Investigation Department has itself admitted that the death has occurred due to police firing., It is only when the Supreme Court of India has intervened thereafter that the order passed by the learned Chief Judicial Magistrate, Latehar under Section 156(3) of the Code of Criminal Procedure was complied by the State and the case was registered, in which it has now been admitted that the death occurred due to police firing of an innocent villager in the State of Jharkhand, where it has been claimed that the tribals are being protected. The closure report is therefore a clear hasty action leaving much to be desired regarding the nature of investigation, because if a detailed investigation had already been done as is now suggested, there is no reason why a final report could not have been filed by the investigating agency in the normal course of events without an order from the High Court. The court further finds that the closure report lacks bona fide basis and, in the interest of justice, the case requires de novo investigation to maintain confidence of the police in society and to uphold the rule of law for everybody., Accordingly, this Supreme Court of India set aside the closure report arising out of Garu P.S. Case No. 11 of 2022, considering that Annexure‑D to the supplementary counter affidavit admits that the death of the deceased occurred due to police firing. A fresh team of investigators shall be constituted under a senior police official by the Director General of Police and Secretary, Home Department, Government of Jharkhand, consisting of efficient personnel well conversant with modern investigation technology. No officer who was part of the investigation team leading to the closure report shall be part of the team conducting the de novo investigation., Much time has already elapsed and, seeing the urgency in the matter, the Supreme Court of India directs that such fresh investigation must be concluded within a maximum period of three months from today and the police report be filed before the court concerned, thereafter the matter shall proceed in accordance with law., Seeing the admission made by the police in Annexure‑D of the supplementary counter affidavit that the death of the husband of the petitioner has occurred due to police firing, the Supreme Court of India further considered that it is required to pass an appropriate order to compensate the petitioner suitably. The State of Jharkhand has a policy for compensation upon police atrocities and death in police lockup, but despite that only a recommendation has been made in Annexure‑D and compensation has not yet been paid., In view of the above the Honourable Supreme Court of India in the case of Joginder Kumar v. State of Uttar Pradesh & Ors., reported in (1994) 4 SCC 260, held that the horizon of human rights is expanding while the crime rate is also increasing. The Court observed that the law of arrest is a balance between individual rights, liberties and privileges on the one hand and individual duties, obligations and responsibilities on the other, and that society's interest must be weighed against the individual's., In Kiran Bedi v. Committee of Inquiry & Anr., reported in (1989) 1 SCC 494, the Honourable Supreme Court of India reproduced an observation that the right to the enjoyment of a private reputation, unassailed by malicious slander, is of ancient origin and is necessary to human society. A good reputation is an element of personal security, and is protected by the Constitution equally with the right to the enjoyment of life, liberty, and property., Further, reputation of an individual is an inseparable facet of his right to life with dignity, as held in Vishwanath Agrawal v. Sarla Vishwanath Agrawal., The excessive use of force by the police was also the subject matter before the Honourable Supreme Court of India in Delhi Judicial Service Association (Tis Hazari Court) v. State of Gujarat & Ors., reported in (1991) 4 SCC 406, where it was held that the Chief Judicial Magistrate, as head of the Magistracy in the district, exercises control and supervision over the investigating officer under Chapter XII of the Code of Criminal Procedure, 1973, to ensure that the police act according to law in investigation of crimes without indulging in excesses and causing harassment to citizens., In view of the above facts, reasons, discussions and analysis, and also considering Annexure‑D to the supplementary counter affidavit wherein it has been admitted that the death of the husband of the petitioner has occurred due to police firing, the State of Jharkhand shall pay a sum of Rs. 5,00,000 (rupees five lakhs) in favour of the petitioner within four weeks from the date of receipt of this order, to be implemented through the Home Secretary, Government of Jharkhand, Ranchi., With the above observation and direction at paragraphs 18 and 25 of this judgment, this petition is allowed and disposed of.
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S.B. Civil Writ Petition No. 16367/2021. Petitioners: (1) School Development Management Committee, Shri Hari Singh Senior Secondary School, Pilwa, Panchayat Samiti, Dechu, District Jodhpur (Rajasthan) represented by its member Harish Khatri, son of Phool Chand Khatri, aged about 40 years; (2) Harish Khatri, aged about 40 years, Pilwa, Panchayat Samiti, Dechu, District Jodhpur (Rajasthan); (3) Kaishi, wife of Samda Ram Meghwal, aged about 44 years, Pilwa, Panchayat Samiti, Dechu, District Jodhpur (Rajasthan). Respondents: (1) State of Rajasthan, through the Secretary, Department of Education, Government of Rajasthan, Jaipur; (2) Director, Secondary Education, Bikaner; (3) State Education Research and Training Centre, Udaipur, through its Director; (4) District Education Officer (Secondary), Jodhpur; (5) Principal, Shri Hari Singh Senior Secondary School, Pilwa, Panchayat Samiti, Dechu, District Jodhpur (Rajasthan). For petitioners: Mr. Moti Singh. For respondents: Mr. Pankaj Sharma, Additional Advocate General, with Mr. Rishi Soni and Mr. Deepak Chandak., The instant writ petition raises rather uncommon but intriguing and intricate questions relating to the rights of the children having their education in a Government school, known as Shri Hari Singh Senior Secondary School, located in Village Pilwa, Panchayat Samiti, Dechu, District Jodhpur., The petitioner No.1 is the School Development Management Committee (SDMC) represented by one of its members while petitioners No.2 and 3 are parent‑members of the SDMC whose wards are studying in the school., It is noteworthy that the School Development Management Committee is a statutory body constituted under Section 21 of the Right of Children to Free and Compulsory Education Act, 2009 (the RTE Act)., The petitioners feel aggrieved by the decision dated 13 September 2021 taken by the State Government and the consequential order dated 20 September 2021 of the Director, Secondary Education, which converted the school to an English‑medium Mahatma Gandhi Government School., For the purpose of adjudication, a brief narration of the facts is imperative. Shri Hari Singh Senior Secondary School, Pilwa, has been functioning since 1980. The school caters to the educational needs of about 600 children, including girls, from the village and nearby villages. The medium of instruction has been Hindi since its inception., The enrolment figures are as follows: Boys – General 62, Girls – General 87; Boys – Minority 8, Girls – Minority 7; Total 288 (SIC 298) boys and 298 (SIC 303) girls, making a grand total of 601 students., In Panchayat Circle Pilwa, two other Government schools were established during the last two decades; a Girls Primary School merged in 2013 and a Government Primary School merged with the present school in 2012‑13. Consequently, the present school is the only institution imparting education from class 1 to class 12 to 601 students in Hindi medium., According to the petitioners, other schools are situated at a distance of about six to eight kilometres from the school in question., In the budget of 2021‑22, the Chief Minister and Finance Minister announced that within two years about 1,200 Mahatma Gandhi Government Schools would be opened to impart education in English in all villages and towns having a population of more than ten thousand., In furtherance of the budget announcement, the SDMC met on 3 April 2021 and resolved that an English‑medium school be opened in the vacant building of the merged Government school and that the existing school operate in two shifts – the first shift for Hindi‑medium students and the second shift for English‑medium students. It was specifically resolved that the existing Hindi‑medium school not be closed., The State Government, vide its order dated 13 September 2021 and the Director, Secondary Education, vide order dated 20 September 2021, permitted the conversion of 345 Government schools to Mahatma Gandhi Government Schools (English medium), which included the present school., Following the conversion, the SDMC met on 28 September 2021 and discussed the State Government’s proposal. The SDMC resolved that the school should not be converted to an English‑medium school because such conversion would adversely affect the future of the students, particularly the girls., Representations were sent to the State Government requesting that the medium of instruction not be changed. One such representation dated 26 October 2021, signed by various students and addressed to the Principal, has been placed on record., Finding that the representations had no effect and that the State Government was determined to implement the conversion, the petitioners approached the Rajasthan High Court invoking its extraordinary jurisdiction under Article 226 of the Constitution of India., Relevant constitutional and statutory provisions are as follows. Article 21A of the Constitution provides that the State shall provide free and compulsory education to all children of the age of six to fourteen years. Article 19 guarantees freedom of speech and expression. The Right of Children to Free and Compulsory Education Act, 2009 defines ‘school’, prescribes the composition of the School Management Committee under Section 21, and outlines the preparation of a School Development Plan under Section 22. Section 29 of the Act requires that, as far as practicable, the medium of instruction be the child’s mother tongue., The Right to Free and Compulsory Education Rules, 2010 specify the composition and functions of the School Management Committee, including that at least seventy‑five percent of its members shall be parents or guardians, and that the Committee shall meet at least once a month., Preliminary objections were raised by the learned Additional Advocate General. The objections were: (i) no resolution of the SDMC had been filed; (ii) no resolution authorising petitioner No.2 to swear the affidavit on behalf of the other petitioners; and (iii) the petition involves a disputed question of fact. The Court held that the first two objections, though technically correct, do not render the writ petition non‑maintainable, and rejected the third objection as the State had not shown any disputed question of fact., The petitioners’ contentions are that they are not opposed to English as a medium of instruction but object to the overnight conversion of the school and the displacement of existing students. They submit that the SDMC resolution allowed for an English‑medium school to be run in a second shift without disturbing the Hindi‑medium students, and that the State’s conversion is arbitrary and violative of Article 21A and Section 29(f) of the RTE Act., The petitioners also rely on the National Education Policy 2020, which emphasizes the use of the home language or the second Indian language, and on the Supreme Court judgment in State of Karnataka & Anr. v. Associated Management of English Medium Primary and Secondary Schools & Ors. (2014) 9 SCC 485, arguing that the present conversion is contrary to that precedent., The State, through the learned Additional Advocate General, contended that the conversion is a policy decision in the public interest, that safeguards have been provided, and that students who do not wish to study in English can be admitted to nearby Hindi‑medium schools. The State also submitted that an assessment exercise had been carried out, that the SDMC resolutions were found to be irregular, and that the existing infrastructure of Shri Hari Singh Senior Secondary School is suitable for conversion., The Court identified the following questions for consideration: (i) whether Article 21A guarantees the right to receive education in the mother tongue; (ii) whether the right to education in the mother tongue or Hindi is a fundamental right; (iii) whether the consent of the SDMC is necessary before converting a Hindi‑medium school to an English‑medium school; (iv) whether the State’s policy of conversion conflicts with Sections 20, 21, 22 and 29(2)(f) of the RTE Act; and (v) who is competent to change the medium of instruction of a school.
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Crux of argument of learned counsel for the petitioners was that, if Article 21A of the Constitution of India is read conjointly with section 29(2)(f) of the Right to Education Act, 2009, the right to education enshrined under Article 21A includes the right to get education in mother tongue or home language, while learned Additional Advocate General was opposed to such contention of the petitioners., A look at Article 21A of the Constitution of India reveals that it enjoins upon the State to provide free and compulsory education to all children between the age of six to fourteen years, but such right is not an absolute right, as its expanse has been hedged by the expression 'in such manner as the State may, by law, determine'., Since Article 21A is tethered with the words 'in such manner as the State may, by law, determine', according to the Rajasthan High Court the State may by law provide the medium and manner to provide such free education, which in a given case can be Hindi, English or even regional dialect – the mother tongue of the child. No child or parent can claim as a matter of right that his ward should be instructed in a particular language or the mother tongue only, on the basis of what has been guaranteed under Article 21A., My aforesaid view finds strength from the judgment of Honourable Supreme Court of India, rendered in the case of State of Karnataka (supra), particularly paragraph 44 thereof, which is reproduced here: Article 21 of the Constitution provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. In Unni Krishnan, J.P. v. State of A.P., a Constitution Bench of the Rajasthan High Court has held that under Article 21 every child/citizen of this country has a right to free education until he completes the age of fourteen years. Article 21-A provides that the State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine. Under Articles 21 and 21-A, therefore, a child has a fundamental right to claim from the State free education up to the age of fourteen years. The language of Article 21-A further makes it clear that such free education which a child can claim from the State will be in a manner as the State may, by law, determine. If, therefore, the State determines by law that in schools where free education is provided under Article 21-A the medium of instruction would be in the mother tongue or in any language, the child cannot claim as of right under Article 21 or Article 21-A that he has a right to choose the medium of instruction in which the education should be imparted to him by the State. The High Court, in our considered opinion, was not right in concluding that the right to choose a medium of instruction is implicit in the right to education under Article 21 and 21-A., The right to get education in a particular language, in the opinion of the Rajasthan High Court, is relatable to Article 19(1)(a) of the Constitution – freedom of speech and expression. A child or, on his behalf, his parent(s) have the right to choose the language in which his or their child should be imparted education. The right to have education in mother tongue or in a particular medium is guaranteed by Article 19(1)(a) of the Constitution of India, as has been held by Honourable Supreme Court of India in paragraph 45 of the judgment in the case of State of Karnataka (supra)., A question may then arise that such right is also subject to reasonable restriction, as per clause (2) of Article 19 of the Constitution of India and if that be so then the State can prescribe a medium of instruction considering the overall development of the child and socio‑economic factors., It is to be noted that in the present case, the State's decision, which is purely administrative in nature, cannot firstly be said to be a law and, apart from that, it cannot be said to be a reasonable restriction for the purposes mentioned in clause (2) of Article 19, which postulates that restriction can be imposed for the purpose of and in the interest of sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of Court, defamation or incitement to an offence., Since the fundamental right guaranteed under Article 19(1)(a) is only subject to reasonable restriction by law to be enacted by the State, in the opinion of the Rajasthan High Court, the instant decision taken or the State's policy decision cannot whittle down the fundamental right of a child to be taught in a particular medium, which is assured and protected by Article 19(1)(a) of the Constitution of India., Section 21 of the Right to Education Act, 2009 provides for constitution of a School Management Committee comprising representatives of the local authority, parents/guardians of the children and teachers. Such committee is authorised to perform various functions including monitoring the working of the school and preparing and recommending a school development plan., The Central Government has promulgated Rules of 2010 in exercise of its powers under section 38 of the Act and similarly the State of Rajasthan has promulgated Rajasthan Right of Children to Free and Compulsory Education Rules, 2011 (for short Rules of 2011), vide notification dated 29.03.2011., According to sections 21 and 22 of the Act and Rule 4 and 5 of the Rules of 2011, the School Management Committee is required to prepare a school development plan which shall contain details of class‑wise enrollments each year, requirement of additional teachers, requirement of additional infrastructure etc. Such development plan is required to be a three‑year plan comprising three annual sub‑plans., Rule 3 of the Rules of 2011 requires the School Management Committee to ensure enrollment and continued attendance of all the children from the neighbourhood of the school., By reading the provisions of the Act and Rules of 2011, which were heavily relied upon by Mr. Moti Singh, the Rajasthan High Court is unable to conclude that prescription of medium of instruction is a decision to be taken by the School Management Committee as part of the school development plan. Preparing a school development plan cannot be misconstrued to mean the prescription of syllabus and medium of instruction; it has to be done by experts in the field of education., In the meeting held on 03.04.2021, the SDMC unequivocally objected to conversion of the entire school to an English medium school and the same was duly reiterated in its subsequent meeting held on 28.09.2021. Sub‑section (2) of section 21 of the Act, 2009, in no ambiguous terms, prescribes that the school management committee shall monitor the working of the school; prepare and recommend the school development plan. In the opinion of the Rajasthan High Court, the functions to be discharged by the SDMC under clause (a) and (b) of section 21(2) do not include the decision to be taken with respect to language or medium in which the students shall be taught. The medium of instruction is to be determined by the Appropriate Authority or Rajasthan School Education Council., Upon a close and conjoint reading of sections 21 and 22 of the Act and Rule 3 and 22 of the Rules of 2011, this Court is of the firm opinion that it is not within the domain of the SDMC to decide the language in which pupils will be instructed., It is noteworthy that as per the provisions of the Act and Rules of 2010, seventy‑five percent of the strength of the Committee is to be from amongst the parents or guardians of the children. Rules of 2011 as framed by the State of Rajasthan are slightly different as far as constitution of school management committee is concerned. Rule 3(2) provides that parent/guardian of every child studying in the school will be member of the committee. Rule 3 specifies various functions to be discharged by such committee., Rule 3 of the Rules of 2011: (1) A School Management Committee shall be constituted in every school, other than an unaided school, and reconstituted every two years, as per the directions issued by the State Government/Local Authority from time to time. (2) The Committee shall have the following members: (a) Parent/Guardian of every child studying in the school; (b) all the teachers working in the school; (c) the person elected from the ward of the local authority in which the school is located; and (d) all other elected members of the local authority residing in the village/ward in which the school is located. (3) The Chairperson, Vice‑Chairperson and Member‑Secretary of the Executive Committee shall be the Chairperson, Vice‑Chairperson and Member‑Secretary, respectively of the Committee. (4) The Committee shall meet at least once in every three months, and the minutes and decisions of the meetings shall be properly recorded and made available to the public. (5) The Committee shall, in addition to the functions specified in clause (a) to (d) of sub‑section (2) of section 21, perform the following functions: (a) communicate in simple and creative ways to the population in the neighbourhood of the school the rights of the child as enunciated in the Act and also the duties of the State Government, local authority, school, parent and guardian; (b) ensure the implementation of clause (a) and (e) of sub‑section (1) of section 24 and section 28; (c) monitor the compliance of section 27; (d) ensure the enrolment and continued attendance of all the children from the neighbourhood in the school; (e) monitor the maintenance of the norms and standards specified in the Schedule; (f) bring to the notice of the local authority any deviation from the rights of the child, in particular mental and physical harassment of children, denial of admission, and timely provision of free entitlements as per sub‑section (2) of section 3; (g) identify the needs, prepare a plan, and monitor the implementation of the provisions of section 4; (h) monitor the identification and enrolment of, and facilities for education of children with disability, and ensure their participation in and completion of elementary education; (i) monitor the implementation of the mid‑day meal in the school; and (j) prepare an annual account of receipts and expenditure of the school. (6) Any money received by the Committee for the discharge of its functions under the Act shall be kept in a separate account, to be audited annually. (7) The accounts referred to in clause (j) to sub‑rule (5) and in sub‑rule (6) shall be signed by the Chairperson or Vice‑Chairperson and Member‑Secretary of the Committee and made available to the local authority within one month of their preparation., In the case the impugned administrative decision of the State is upheld without the wishes and consent of the SDMC, the school cannot be abruptly converted to an English medium school. Changing the medium of instruction of the school in any case cannot be done in the manner that has been done by the State in the present case., Changing the medium of instruction of a school which houses 601 rural students, out of which 303 are girls and a major part hail from lower strata, including SC, ST, OBC and minorities, cannot be countenanced by the Rajasthan High Court. Scooping out 601 students with one stroke of a pen in a bargain of an assurance of being accommodated in nearby schools is violative of their constitutional rights and is likely to affect their emotional quotient as well. For children, their school is not only a structure of stones, cement and concrete; it is a second home, a sort of temple where they learn, play and grow. Their bonding resulting from togetherness helps them grow as a society and a community., In the opinion of the Rajasthan High Court, the State should not undermine the sanctity or ignore the powers of the School Development Management Committee, which is a creature of the statute, particularly section 21 of the Act and Rule 3 of the Rules of 2011. Merely because the State has taken a stand that, in view of the demand for more English medium schools, one English medium school in all villages having a population of more than 5000 should be established, the opinion of the SDMC cannot be given a go‑by altogether. The argument that there is no requirement of consent of the SDMC for the school in question, as it is founded, funded, maintained and controlled by the State, cannot be accepted., Notwithstanding the above, as the SDMC of the school in question has not objected to the very establishment of the English medium school, and its stand has been that the present Hindi medium school be continued, despite being persuaded, this Court is not inclined to hold that no English medium school shall function in the building in question., The decision of the State dated 20.09.2021 of converting the school per se to Mahatma Gandhi English Medium School is, as per this Court, violative of not only fundamental rights enshrined under Article 19(1)(a) of the Constitution of India, but also violative of Article 14 of the Constitution of India, as such decision is not based on any research, study or intelligible criteria and is contrary to section 29(1) & 2(f) and beyond the powers of the State., The impugned decision is, in ignorance if not derogation of the powers of the Academic Authority and the resolution of the SDMC, which, in no uncertain terms, has resolved that the existing Hindi medium school not be closed and, if necessary, the infrastructure of the school be used for functioning of the English medium school in the second shift, without disturbing the existing students of Hindi medium., The respondents have not placed any material to show that any study of pros and cons was made about the feasibility of establishing the English medium school in another building or by constructing a new building or using any abandoned building. No material has been placed to show why this particular school has been chosen to be converted to English medium school, which in a small town of 5000 is catering to the needs of a large number of students (about 600)., This Court, therefore, is of the opinion that the decision of the State Government of converting the present school out of 344 schools to English medium schools by a single stroke of pen is arbitrary and contrary to the provisions of the Act of 2009 and the Rules of 2011., The defence that the children of this school will be accommodated in nearby schools cannot be accepted as a valid justification for uprooting 601 students from the present school to be placed in nearby schools, even if they are within the vicinity of two kilometres. Such action cannot be taken in the middle of the academic session 2011‑22. The State's decisions dated 13.09.2021 and 20.09.2021 are arbitrary and deserve to be quashed, however, such adjudication is confined to the present school., It is noteworthy that Section 29 of the Right to Education Act specifically provides that curriculum and evaluation procedure shall be laid down by the Academic Authority. Rule 22 of the Rajasthan Right of Children to Free and Compulsory Education Rules, 2011, framed in exercise of powers under section 38 of the RTE Act, provides for an Academic Authority. The Academic Authority, which is the State Institute of Educational Research and Training, is the competent authority to lay down the curriculum, which inherently includes medium of instruction., Since medium of instruction is to be determined by the Academic Authority, which in the State of Rajasthan is the Rajasthan School Education Council, the School Management Committee, in the opinion of the Rajasthan High Court, cannot decide the medium of instruction, whether Hindi or English., Section 29(2)(f) of the Act of 2009 and the National Education Policy, 2020 prescribe that the medium of education or instruction till elementary level shall be in the mother tongue. This Court has no hesitation in holding that the same cannot be changed to English medium at least by an administrative decision like the one taken on 13.09.2021 or 20.09.2021. If it were to be done, it could be done by appropriate legislation brought by the State Legislature and not even by the Academic Authority. The conversion of the school in question to English medium is therefore clearly contrary to the provisions of sections 21, 22, 29(1) and 29(2)(f) of the Right to Education Act., Before reaching the final conclusion, it would be fitting to refer to a recent Division Bench judgment of the Andhra Pradesh High Court, rendered on 15.04.2020 in the case of Dr. Srinivas Guntupalli v. State of Andhra Pradesh & Ors., Writ Petition (PIL) No.183/2019. By a Government notification dated 20.11.2019, it was provided that all Government schools from Grade I to VIII for the academic session 2020‑21 and Grade IX & X for the academic session 2021‑22 shall be converted to English medium schools. When the decision came to judicial scrutiny, the Andhra Pradesh High Court quashed the notification holding, inter alia, that it was violative of Article 21A and Article 19(1)(g) of the Constitution of India, apart from being in contravention of provisions of section 29(2) of the Right to Education Act, 2009 and sections 7(3) and 7(4) of the Andhra Pradesh Right to Education Act, 1982., The Division Bench of Andhra Pradesh headed by Honourable Chief Justice held: In the light of the discussion, looking to the history of pre‑independence and post‑independence and as per the recommendations of the Report of the States Reorganisation Commission, 1955 and the National Policy on Education Act, 1968 and various other reports, it is unequivocally recognised that medium of instruction in schools, particularly up to standards I to VIII, must be in the mother tongue. The effect of the National Policy on Education, 1968 and other reports cannot be whittled down by way of issuing a government order by the State Government, contrary to the spirit of the Right to Education Act and also to the provisions of the Constitution and the judgments of the Supreme Court of India. Therefore, the decision of the Government converting the medium of instruction from Telugu to English medium from standards I to VI or I to VIII, en bloc, is against the National Policy on Education Act, 1968 and various other reports, and the impugned government order deserves to be set aside., In view of the discussion, the inescapable conclusion is that G.O. No.85 dated 20.11.2019 is against the spirit of various constitutional provisions and the amendment proposed by the State Government is repugnant and, without its assent, it cannot confer any power to the State Government to issue the said order. The writ petitions are allowed, setting aside G.O. No.81 dated 05.11.2019 and G.O. No.85 dated 20.11.2019. The parties are directed to bear their own costs. All pending miscellaneous applications stand closed., As an outcome of the discussion foregoing, this Court is of the considered opinion that changing the mode of instruction to English or imparting education in English per se is not violative of fundamental rights guaranteed to the children or to their parents under Article 21A of the Constitution of India, because Article 21A only assures the right of a child below fourteen years to have access to free and compulsory education, whereas the manner has been left to the discretion of the State to be determined by law., However, it cannot be ruled that the right to have education in a particular medium or in a language in which the child has been brought up is not covered by any of the fundamental rights., Article 19(1)(a) of the Constitution of India is the fountainhead, being the repository of the right to freedom of speech and expression, from where flows such right. Article 19(1)(a) has wide ambit and includes within its fold the right to have education in a particular medium., The right of having elementary education in the mother tongue is also a statutory right conferred by section 29(2)(f) of the Act of 2009, according to which medium of instruction, as far as practicable, is required to be in the child's mother tongue or home language., The power to frame laws in the subject of education falls in Entry No.25 of the Concurrent List (list III) of the Seventh Schedule. Since the Act of 2009 occupies the field which unequivocally prescribes that medium of instruction in elementary education, as far as practicable, be in the mother tongue/home language of the child, any law made or framed by the State but for the assent of the President would be repugnant by virtue of Article 254 of the Constitution., In the opinion of the Rajasthan High Court, English as a medium of instruction cannot be thrust upon a child even by legislation enacted by the State Government, much less by a policy decision., Be that as it may, since petitioner No.1 SDMC, of which petitioners No.2 and 3 are members, has itself decided to have a school of English medium, the impugned decision of the State at the instance of the present petitioners cannot be quashed, more particularly because the decision of the State or its policy as such are not under challenge., In line with the mandate of section 29(2)(f), the Central Government has framed National Policy 2020, which, according to clause 4.9, requires the medium of instruction to be in the home language., The rights of the petitioners and the pupil of the school to have instruction in Hindi that are protected under Article 19(1)(a) of the Constitution of India can be diluted only by way of legislation enacted in the contingencies mentioned in clause (2) of Article 19. In the absence of any valid legislation brought by the State of Rajasthan, this Court is of the view that such right cannot be abrogated or taken away., The impugned decision dated 20.09.2021 seeking to convert the school in question to a Hindi medium school with immediate effect (session 2021‑22) is, in the opinion of this Court, violative of Article 19(1)(a) and Article 14 of the Constitution of India. The same is hereby quashed with respect to Shri Hari Singh Senior Secondary School., Now, moving on to the statutory rights of the petitioners and other children having education in the school. Indisputably, the School Development Management Committee is a statutory body, constituted under the provisions of section 21 of the Act of 2009 and Rule 3 of the Rules of 2011. Sections 21(2) and 22 of the Act enjoin upon the committee to monitor the working of the school and prepare/recommend the school development plan., In the opinion of the Rajasthan High Court, the State's administrative decision and action of forcing English as a mode or medium of instruction is violative of sections 21 and 22 of the Act of 2009, particularly in the face of resolutions dated 03.04.2021 and 28.09.2021 adopted by the SDMC., Though this Court is of the view that the State's decision dated 20.09.2021 (in absence of decision of the Academic Authority) is contrary to Education Policy 2020 and the provisions of sections 29(1) and 29(2)(f) of the Right to Education Act and Rules framed thereunder, but since the policy decision itself is not under challenge and the petitioners themselves had in principle welcomed or accepted the establishment of an English medium school, it is hereby directed that, for the ensuing session 2022‑23, if the State wishes to convert the school in question to Mahatma Gandhi English Medium School, it shall convene a meeting of the SDMC constituted under Rule 3 of the Rules of 2011 in the presence of the Sub‑Divisional Magistrate/Tehsildar and a nominee of the District Education Officer concerned. Notice of the meeting with the proposed agenda will be circulated well in advance., If the School Development Management Committee by majority of the members present resolves that the school in question be converted to an English medium school, then only the State's decision to convert the school to Mahatma Gandhi English Medium School shall be given effect. Otherwise, the school will not be converted to an English medium school., The writ petition stands allowed in the above terms. The stay application and all other interlocutory applications stand disposed of.
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Mister Dhyandev Kachruji Wankhede, Plaintiff/Applicant; Nawab Malik, Defendant; Mister Arshad Shaikh, Senior Advocate with Mister Divakar Rai, Mister R. S. Rane, Miss Bhavika Solanki, Mister Nitin Rai in behalf of Saurabh Tamhankar for the Plaintiff/Applicant. Mister Atul Damle, Senior Advocate with Mister Ramesh Dube Patil, Kunal Damle, Rajesh Tekale, Ashish Gaikwad, Anandrao Kate, Rushikesh Sable and Komal Bhoir, in behalf of Jay & Co. for the Defendant. Heard Mister Arshad Shaikh, learned Senior Counsel for the Plaintiff and Mister Atul Damle, learned Senior Counsel for the Defendant., At the outset, Mister Shaikh, the learned Senior Counsel appearing for the Plaintiff, clarified that at this stage the Plaintiff is only pressing for ad interim relief in terms of prayer clause 5(c) of the Interim Application. The said prayer clause 5(c) is reproduced herein below for ready reference: Pending the hearing and final disposal of the present Interim Application, this Honourable Court be pleased to pass an order of injunction preventing and/or restraining the Defendant, his agents, servants, authorized representatives, his party members and all others acting under and on his instructions from publishing, writing, speaking in any media, including electronic media and the social media handles, or publishing in any manner whatsoever any content or material which is defamatory about the Plaintiff and/or his family members., Before considering the rival submissions, it will be necessary to set out the pleadings of the parties. The Plaintiff’s case as set out in the plaint is as follows: (a) The Plaintiff is a retired Government official and was working as Senior Police Inspector of the State Excise Department at the time of his retirement in 2007. (b) The Plaintiff’s family comprises of (i) daughter Mistress Yasmeen Aziz Khan, née Miss Yasmeen Dhyandev Wankhede, who is an Advocate by profession practising at various courts in Mumbai; (ii) son Mister Sameer Wankhede, who is presently posted as the Zonal Director of the Narcotics Control Bureau, Government of India; and (iii) his daughter‑in‑law Mistress Kranti Sameer Wankhede, née Miss Kranti Redkar, who is a film actress., The Defendant is an Indian politician affiliated to the Nationalist Congress Party (NCP) and who is the current Cabinet Minister of State of Maharashtra, Minority Development, Aukaf, Skill Development and Entrepreneurship. The Defendant is the National Spokesperson and Mumbai President of the Nationalist Congress Party. The Defendant is active in news and media on and through his Twitter account, viz. Nawab Malik @nawabmalikncp., It is the case of the Plaintiff that the interviews and press conferences given by the Defendant to various news channels and the posts uploaded by him on his social media accounts, including the said Twitter account, are highly defamatory, slanderous as well as libellous, as they contain incorrect facts and conclusions, communicate misinformation and incomplete information, and constitute a deliberate, calculated move on the Defendant’s part to knowingly and maliciously defame, inter alia, the Plaintiff and/or his family members, causing him and his other family members, as mentioned above, not only an incalculable loss, harm and damage to their reputation at large but also, prima facie, impair their right to live with human dignity., In paragraph 6 of the plaint, the Plaintiff has set out the following tweets and social media contents which, according to the Plaintiff, are defamatory: Fletcher Patel seen in this picture, with someone who he calls My Lady Don. Who is this Lady? Ugahi ka dhandha Maldives me! Here are the proofs! Sameer Wankhede has accepted the fact that he had visited Maldives but he denies the visit to Dubai. Here is the proof of his visit to Dubai with his sister. Sameer Wankhede was at Grand Hyatt Hotel in Dubai on 10th December 2020. His lie stands exposed. Pehchan kaun? Sameer Dawood Wankhede ka yaha se shuru hua farjiwada. Who is this Wankhede Dawood? Photo of a Sweet Couple Sameer Dawood Wankhede and Dr. Shabana Qureshi. This is the Nikah Nama of the first marriage of Sameer Dawood Wankhede with Dr. Shabana Quraishi. Who is this person? What is his relation with Dawood Wankhede and Sameer Dawood Wankhede? Please let us know. He farzi certificate chya aadharavar yanna nokari milali nasati tar hotkaru ek gareeb dalit porga kinva porgi ti ya padavar basali asti Sameer Wankhede ne toh dharma parivartan nahi liya hum maan te hai kyun ki janam se who Muslim hai. Unke pitashree ne dharma parivartan kiya tha. Dono bachche bachpan se Muslim hai. Screenshot of the WhatsApp chat between Yasmeen Dawood Wankhede (sister of NCB official Sameer Dawood Wankhede) and a drug peddler. Question arises, is this morally, ethically and legally right? Aur aaj main phir kayam hoon apni baat pe. Jis tarah se farziwada karke certificate Sameer Dawood Wankhede ne banaya, uski quasi‑judicial authority Maharashtra ke Zilla Adhikari yaha se Mumbai Shaher se certificate jaari hua. Humein pura vishwas hai ki jo farziwada hua hai, us farziwadape ki jaanch ke baad mohar lagegi., In paragraph 8(b) of the plaint it is contended by the Plaintiff that in the course of his duties as an officer of the Narcotics Control Bureau (NCB), the Plaintiff’s son was, and even today is, actively involved in busting drug rackets. In the said process, he has arrested various criminals associated with the drugs, including but not limited to drug suppliers and drug addicts‑consumers. His son has recently cracked various cases in which relatives of various politicians and Bollywood personalities were arrested. In a nutshell, the Plaintiff’s son was, and even today is, handling various high‑profile Narcotic Drugs and Psychotropic Substances (NDPS) cases. One such case being handled by the Plaintiff’s son was that of Mister Sameer Khan, the Defendant’s son‑in‑law, who was also arrested under various offences punishable under several sections of the NDPS Act, 1985. Mister Sameer Khan was arrested on 13 January 2021 by the NCB in connection with the drug case. He was released on bail on 27 September 2021, i.e., almost after eight months in prison., Since lodging of said case against the Defendant’s son‑in‑law, the Defendant has been hounding the Plaintiff’s son, satisfying his personal vendetta with extortive and provoking threats, in public and also on national television, with a mala fide aim to pressure him to succumb to his high‑handed political tactics so that the Plaintiff’s son would not efficiently and efficaciously do what he was supposed to legally do and for what he is known for., It is specifically contended by the Plaintiff that to the best of his knowledge and belief, his son did not slack off anywhere and had done his job well. It is further contended that the Defendant’s motive is to malign and disrepute Mister Sameer Wankhede to ultimately sub‑serve his claim in the Defendant’s son‑in‑law’s case by discrediting the work of Mister Sameer Wankhede and the NCB. It is further contended that it is apparent that all such remarks seem to be nothing but pressure tactics and an attempt to induce fear in the Plaintiff’s son’s mind to derail the investigation being carried out by the Narcotics Control Bureaus, of which the Plaintiff’s son is a proud and honest part, at the cost of maligning not only the Plaintiff’s son but also the Plaintiff and his other family members’ image and societal status., In the circumstances set out in the plaint, the Plaintiff issued notice dated 29 October 2021 calling upon the Defendant not to resort to such arm‑twisting, high‑handed tactics thereby tarnishing the name, reputation, social image and character of the Plaintiff and his family members., It is contended that the defamatory statements, as mentioned above, have not only lowered the Plaintiff and his family in the estimation of right‑thinking members of society, generally including peers and relatives, amongst whom the Plaintiff’s reputation, which was painstakingly built over a period of years, is now looked down upon and questioned. It is stated that while clearly the allegations levelled by the Defendant are false and malicious, a large section of the society within which the Defendant and his family reside holds the general view that there is no smoke without fire. The Plaintiff further states and submits that in his zeal to aid his son‑in‑law, the Defendant has gone to the extent of tarnishing the image of everyone connected to Mister Sameer Wankhede, i.e., the Plaintiff’s son, relying on the fact that being a Member of the Legislative Assembly, he (the Defendant) can reach a wide audience and would be in a position to influence a large number of people., It is submitted that had the Defendant bona fide obtained knowledge of any illegalities committed by the family of Mister Sameer Wankhede, the Plaintiff or the Plaintiff’s family, it was always open for the Defendant to have initiated such actions as are permissible in law for redressal, if he so desired. The Defendant can never justify tarnishing the image of the Plaintiff and his family in public as set out above., By taking the above and other contentions, the Plaintiff filed the suit seeking a declaration that the Defendant’s remarks mentioned in Paragraph 6 of the plaint and/or any other remarks, insinuations and/or imputations, whether in writing or oral, stated by him during press releases and/or interviews or uploaded on his social media handles, including but not limited to his Twitter account, viz. Nawab Malik (@nawabmalikncp), and his family members are tortious and defamatory in nature. The Plaintiff has also sought a permanent injunction preventing and/or restraining the impugned actions and for deletion and/or removal of all articles, tweets, interviews, press releases, and has sought compensation of Rupees One Crore Twenty‑Five Lakhs only (Rs. 1,25,00,000). The Plaintiff has taken out the above Interim Application in the suit seeking various reliefs. However, as set out above, the Plaintiff at this stage is only pressing prayer clause 5(c)., The Defendant filed an Affidavit-in-reply dated 9 November 2021 to the Interim Application. It is specifically clarified that the said reply is filed only for the limited purpose of dealing with the Plaintiff’s ad interim relief and leave to file a detailed reply is sought. The Defendant raised the following contentions: The Plaintiff has filed the present suit claiming alleged defamation of the Plaintiff and his family members and has sought the relief of declaration and injunction against the Defendant in favour of the Plaintiff and his family members. Therefore, the Plaintiff has filed the present suit on behalf of his family members in a representative capacity. In the circumstances, it was incumbent upon the Plaintiff to comply with the provision of Order 1 Rule 8 of the Civil Procedure Code, 1908. Family members of the Plaintiff have not initiated any legal proceedings controverting the evidence produced by the Defendant. The family members of the Plaintiff, being adult members and particularly in view of the fact that the Plaintiff has alleged that the defamatory material is published against the family members of the Plaintiff, should have initiated independent legal proceedings for defending their civil rights if such rights are infringed as alleged. The Plaintiff cannot file a representative suit on behalf of his family members without first seeking permission from this Honourable Court. The Defendant has produced several documentary evidences in support of his claims. The authenticity and admissibility of the evidences produced by the Defendant can be decided only at the stage of trial. As far as the ad interim relief at the present stage is concerned, the Defendant has produced substantial evidence to support his claim. The Plaintiff has not produced a single documentary evidence thereby controverting the documentary evidence produced by the Defendant. The Defendant has produced the birth certificate of Sameer Wankhede, son of the Plaintiff, to show that he is Muslim by birth and that he has secured a Government job by falsely claiming to be from a Scheduled Caste. This issue is now being investigated by the appropriate authority. The birth certificate is issued by the Municipal Corporation of Greater Mumbai and shows the father’s name as Dawood Wankhede and the caste as Muslim. If the said birth certificate issued by the MCGM is false, then it is for the Plaintiff or Sameer Wankhede to take corrective steps and pursue it with the MCGM; if the Plaintiff alleges the certificate is false, the Plaintiff should have produced the correct birth certificate. The Plaintiff has failed to show how the statements and remarks made by the Defendant are derogatory or defamatory of the Plaintiff nor has made any specific denial of the truthfulness of the statements and averments made by the Defendant. The defence of the Defendant squarely falls within the first, second, third and ninth exceptions to Section 499 of the Indian Penal Code, 1860. The evidence produced by the Defendant has helped the Government machinery to take corrective steps against Sameer Wankhede, son of the Plaintiff. As per newspaper reports, Sameer Wankhede is facing a vigilance inquiry and the Director of the Narcotics Control Bureau has transferred a total of six cases from the Mumbai Unit headed by Zonal Director Sameer Wankhede to its operation unit in Delhi. Sameer Wankhede has also filed a Criminal Writ Petition before this Honourable Court seeking protection against vigilance issues related to NCB Criminal Case 94/2021 or any other issue. Thus, initiation of action against Sameer Wankhede shows the authenticity of evidence produced by the Defendant. One of the punch witnesses, Prabhakar Raghoji Sail, involved as a punch witness in the arrest of Aryan Khan, has filed an affidavit stating that Sameer Wankhede will have to be paid money out of money extorted as a bribe in connection with the Aryan Khan case and has further claimed that he was made to sign ten blank papers as a punch witness. These allegations are now being investigated by the Vigilance team of the NCB and the Special Investigation Team formed by the Maharashtra Police, further showing that allegations have been levelled against Sameer Wankhede by different persons. The Defendant is a spokesperson of the Nationalist Congress Party, a national political party, and in his capacity as a public servant and representative of the public, being a Member of the Legislative Assembly, he has tried to expose the illegalities committed by the son of the Plaintiff, who is also a public servant. Different investigating agencies are now investigating the illegalities committed by the son of the Plaintiff, having found prima facie material for investigation. The Plaintiff is asking for an order of blanket injunction against the Defendant’s servants, authorized representatives, party members and all others over whom the Defendant has no direct control; therefore, no such order can be granted., The Plaintiff filed an Additional Affidavit dated 12 November 2021 bringing on record certain factual aspects and documents. It is contended that since the Plaintiff is a retired government official and his daughter is a practicing advocate, both of them are in no way liable to public scrutiny. Even with respect to publishing any information about a public servant, the Defendant should have, at the very least, ensured that the information is verified and authentic and that the source of such information should have been revealed to enable the common masses, in whose interests the information was purportedly revealed, to decide for themselves the authenticity of the same, or it should have been mentioned in the Defendant’s defamatory statements that his statements and the underlying documents were not verified and that readers’ or viewers’ discretion was required. The Plaintiff has produced about twenty documents along with the Additional Affidavit dated 12 November 2021 to show that the Plaintiff’s name is Dnyandeo and he belongs to the Mahar Caste recognized as a Scheduled Caste. The Plaintiff has thereafter raised additional contentions regarding each of the tweets and social media content annexed to the plaint. It is further contended that all the Defendant’s remarks, insinuations and/or imputations stated by him during various press releases or interviews or uploaded on his social media handle are definitely untruths and, as such, are per se tortious and defamatory in nature. The Defendant had never verified any of these details and tarnished the image of the Plaintiff and his family members by picking and choosing the facts, distorting them to suit his nefarious objective of bringing down the name, image, reputation, character and societal status which the Plaintiff and his family members were enjoying., The Defendant filed an additional affidavit dated 11 November 2021. The Defendant contended that the documents produced by him can be divided into two parts. One part consists of certificates issued by the concerned authorities such as the Birth Certificate of Sameer Wankhede (Exhibit F to the plaint) and the Nikah Nama of the first marriage of Sameer Wankhede with Dr Shabana Quraishi (Exhibit I to the plaint). The other part consists of tweets made on social media. The Defendant stated that he has reasonably verified the documents contained in the first part. Regarding the Birth Certificate of Sameer Wankhede, the record is maintained by the E‑Ward of the Municipal Corporation of Greater Mumbai, and the Defendant has verified the entry of the birth of Sameer Wankhede in the register at serial number 3744 of the concerned year. Regarding the Nikah Nama, it was given to the Defendant by a relative of the first wife. Concerning the tweets, the Defendant contended that they are tweets made on social media and that the Plaintiff, in sub‑paragraph (g) of paragraph 8 of the plaint, has admitted that the photographs and information, which are only reposted by the Defendant, are taken from their social media accounts. It is contended that the Plaintiff, in the entire plaint, has not averred that the Birth Certificate or Nikah Nama are false and fabricated nor has denied that the posts reproduced by the Defendant were not posted by them., The arguments were concluded on 12 November 2021 in the Interim Application seeking ad interim relief and the matter was reserved for order. On 16 November 2021 the learned Advocate for the Defendant filed a praecipe annexing certain documents. In view of this, the matter was placed for hearing on 17 November 2021. On that date this Honourable Court passed the following order: Heard Mister Shaikh, learned Senior Counsel for the Plaintiff and Mister Damle, learned Senior Counsel for the Defendant. On 12 November 2021 the arguments were concluded and order was reserved. On 16 November 2021 the learned Counsel for the Defendant moved a praecipe and, along with it, annexed a letter dated 15 November 2021 issued by the Health Officer, E‑Ward, Municipal Corporation of Greater Mumbai (Exhibit A); a copy of a declaration dated 27 April 1993 executed by Jivan S. Jogure and Arun N. Choudhari (Exhibit B); School Leaving Certificates issued by St. Paul High School dated 27 June 1986 and 12 July 1986 (Exhibit C‑1); an admission form executed by the Plaintiff dated 30 June 1986 (Exhibit C‑2); and a leaving certificate (Primary Section I‑IV) dated 12 June 1989 (Exhibit C‑3). Mister Shaikh, learned Senior Counsel appearing for the Plaintiff, produced a birth certificate dated 17 November 2021 issued by the Sub‑Registrar, E‑Ward, MCGM and a caste certificate dated 24 July 1975. On the basis of the pleadings and documents, tweets, media contents etc., both learned Senior Counsels argued their respective cases. Mister Arshad Shaikh, learned Senior Counsel for the Plaintiff, submitted that the Plaintiff’s son, Mister Sameer Wankhede, is presently posted as the Zonal Director of the Narcotics Control Bureau, Government of India. In the course of his duties as an officer of the NCB, the Plaintiff’s son has been actively involved in busting drug rackets, arresting various criminals associated with drugs, and recently cracking cases in which close relatives of various politicians and Bollywood personalities were arrested. He submitted that the Defendant’s son‑in‑law, Mister Sameer Khan, was arrested on 13 January 2021 by the NCB in connection with an NDPS case and was released on bail on 27 September 2021. When the Defendant’s son‑in‑law was in jail, the Defendant remained silent, but defamatory tweets, videos and press conferences began on 14 October 2021 and continue to date. The Defendant learned that the NCB had decided to challenge the order granting bail to the Defendant’s son‑in‑law in the High Court, and since then the impugned activities have started., Mister Shaikh, the learned Senior Counsel, pointed out the material annexed to the plaint and submitted that the tweets, videos and press conferences were initiated immediately after the release of the Defendant’s son‑in‑law on bail and continue even today. The only illegal motive of the Defendant for resorting to such pressure tactics appears to be that the NCB had moved the Honourable Bombay High Court seeking cancellation of bail of Mister Sameer Khan, the Defendant’s son‑in‑law, and that application is pending adjudication at the time of the present plaint., He submitted that the Defendant is continuing the alleged activities without verifying the truthfulness of the allegations made by him. He pointed out all the exhibits annexed to the plaint, i.e., the tweets and social media content published by the Defendant, which he considers defamatory. He also highlighted several documents annexed to the Plaintiff’s Additional Affidavit dated 12 November 2021 to contend that the tweets, videos and other material annexed to the plaint and available on the Defendant’s social media account are false., He submitted that the WhatsApp chat of the Plaintiff or his family members published on the Defendant’s Twitter account is manipulated. He asserted that the family vacation of his son in the Maldives was portrayed as a business vacation and false allegations of extortion were made. He also submitted that the photograph of the Plaintiff’s son alleged to be taken at the Grand Hyatt Hotel in Dubai, as claimed by the Defendant, was in fact taken at the lounge of Mumbai airport., He submitted that when the Plaintiff’s son is performing his official duties, his religion, whether Hindu or Muslim, is irrelevant, and the Defendant is unnecessarily creating confusion about it., The learned Senior Counsel appearing for the Plaintiff relied on conclusion (F) in the judgment of the Honourable Supreme Court in the matter between Justice K. S. Puttaswamy (Retd.) and Others versus Union of India and Others reported in (2019) 1 Supreme Court Cases 1. He also relied on the order dated 27 November 2020 of the Delhi High Court in the case of Whitehat Education Technology Private Limited versus Aniruddha Malpani, the order dated 21 October 2021 of the Division Bench of the Delhi High Court confirming the order of the Learned Single Judge in Whitehat Education (supra), the order dated 13 July 2021 of the Delhi High Court in the matter between Lakshmi Murdeshwar Puri versus Saket Gokhale, and the order dated 29 January 2016 of the Orissa High Court in the matter between Navin Das and Another versus Rangita Singh, to substantiate his submission that the suit filed by the Plaintiff is maintainable. He submitted that, in the facts and circumstances of this case and in the interest of justice, ad interim relief in terms of prayer clause (c) of the Interim Application should be granted; otherwise the Plaintiff will suffer irreparable harm, loss and injury., Mr. Atul Damle, the learned Senior Counsel appearing on behalf of the Defendant, defended the tweets, videos and press conferences of the Defendant. He submitted that the Defendant, after verifying the factual position, has published the same on social media. He stated that the tweets, media and content are published on the basis of documentary evidence, and that the authenticity and admissibility of the documentary evidence on which the Defendant has based his tweets can be decided only at the stage of trial., He submitted that the documentary evidence on the basis of which the Defendant has tweeted is part of the public record. The birth certificate of the Plaintiff’s son, Sameer Wankhede, is in the record of the Municipal Corporation of Greater Mumbai (Exhibit F to the plaint). According to the certificate, the father’s name is Dawood Wankhede and the caste is shown as Muslim., His tweets are also based on the Nikah Nama of the first marriage of Sameer Wankhede with the daughter of Shabana Qureshi (Exhibit I to the plaint), which was given to the Defendant by a relative of the first wife., The tweets, social media contents, photographs and information from the social media account of the Plaintiff or his relatives were republished by the Defendant on his social media account., The Defendant has reasonably verified the documents., The Plaintiff has filed the present suit on behalf of his family members in a representative capacity and therefore must comply with the mandatory requirements of Order I Rule 8 of the Civil Procedure Code; unless this is done, the Plaintiff is not entitled to any relief., The family members of the Plaintiff, being adult members, should have initiated independent legal proceedings for defending their civil rights., The defence of the Defendant squarely falls within the first three exceptions and the ninth exception to Section 499 of the Indian Penal Code. The Defendant relied on an affidavit dated 23 October 2021 of Prabhakar Raghoji Sail, annexed as Exhibit C to Criminal Writ Petition No. 4036 of 2021 filed by Sameer Dnyandev Wankhede against the State of Maharashtra and others. The affidavit states that at about 12.30 p.m., Kiran Gosavi, accompanied by an NCB official, took Aryan Khan in his white Innova to the NCB office. The deponent reached the NCB office on foot. At around 1.00 a.m., he received a call from K. P. Gosavi instructing him to sign as a pancha and to come to the NCB office. Upon arrival, Sameer Wankhede instructed the staff to take his signatures and name. A staff member named Salekar asked him to sign ten blank papers and requested his Aadhaar details, which the deponent sent via WhatsApp from his mobile number 9137566499 to the number 8167609712. After that, he was offered food and a packet of food was taken for the driver Vijay Suryavanshi. Later, K. P. Gosavi met a person named Sam D Souza about 500 metres away from the NCB office; after a brief conversation, both returned to the car and later departed in their respective vehicles, stopping at Lower Parel bridge near Big Bazaar. During the journey, K. P. Gosavi discussed on the phone with Sam D Souza a proposal to put a bomb of twenty‑five crores and settle at eighteen crores, stating that eight crores had to be given to Sameer Wankhede., Mr. Damle, learned Senior Counsel, submitted that the Plaintiff is seeking an order of blanket injunction against the Defendant’s servants, authorized representatives, party members and all others over whom the Defendant has no direct control, and therefore such an order should not be granted., He relied on the judgment of the Delhi High Court reported in (2002) 61 DRJ 123 in Harsh Mendiratta versus Maharaj Singh and Others to substantiate his argument that an action for defamation is maintainable only by the person who is defamed and not by his friends, relatives or family members. He also relied on the judgment of the Supreme Court reported in (2016) 7 SCC 221 in the matter between Subramanian Swamy versus Union of India, particularly paragraphs 66‑75 and 179‑185. He thus submitted that no ad interim injunction should be granted.
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Before considering the rival submissions it is necessary to set out the legal position with respect to various issues raised by the respective parties. In Justice K. S. Puttaswamy (Retired) (supra), the Supreme Court of India, in conclusion (F), explained the concept of privacy as follows: Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. Privacy also connotes a right to be left alone. Privacy safeguards individual autonomy and recognizes the ability of the individual to control vital aspects of his or her life. Personal choices governing a way of life are intrinsic to privacy. Privacy protects heterogeneity and recognizes the plurality and diversity of our culture. While the legitimate expectation of privacy may vary from the intimate zone to the private zone and from the private to the public arenas, it is important to underscore that privacy is not lost or surrendered merely because the individual is in a public place. Privacy attaches to the person since it is an essential facet of the dignity of the human being., In Subramanian Swamy (supra), the Supreme Court of India discussed the meaning of the term defamation and the concept of reputation. The relevant portions of paragraphs 23, 25, 28, 29 and 30 are reproduced below. 23.1 Salmond & Heuston on the Law of Torts, 20th Edition defines a defamatory statement as follows: A defamatory statement is one which has a tendency to injure the reputation of the person to whom it refers; which tends, that is to say, to lower him in the estimation of right‑thinking members of society generally and in particular to cause him to be regarded with feelings of hatred, contempt, ridicule, fear, dislike, or disesteem. The statement is judged by the standard of an ordinary, right‑thinking member of society. 23.2 Halsbury's Laws of England, 4th Edition, Volume 28 defines a defamatory statement as: A defamatory statement is a statement which tends to lower a person in the estimation of right‑thinking members of society generally or to cause him to be shunned or avoided or to expose him to hatred, contempt or ridicule, or to convey an imputation on him disparaging or injurious to him in his office, profession, calling, trade or business. 23.3 The definition of the term has been given by Cave, J. in Scott v. Sampson, 1882 LR 8 QBD 491, as a false statement about a man to his discredit. 23.4 Defamation, according to Chambers Twentieth Century Dictionary, means to take away or destroy the good fame or reputation; to speak evil of; to charge falsely or to asperse. According to Salmond, the wrong of defamation consists in the publication of a false and defamatory statement concerning another person without lawful justification. The wrong has always been regarded as one in which the court should have the advantage of the personal presence of the parties if justice is to be done. Hence, not only does an action of defamation not survive for or against the estate of a deceased person, but a statement about a deceased person is not actionable at the suit of his relative. Concept of reputation: 25. Having dealt with defamation, we refer to the intrinsic facets of reputation and what constitutes reputation. Reputation is a cherished constituent of life and not limited by time. 28. The famous Greek philosopher Socrates taught: Regard your good name as the richest jewel you can possibly possess, for credit is like fire; when once you have kindled it you may easily preserve it, but if you once extinguish it, you will find it an arduous task to rekindle it again. The way to gain a good reputation is to endeavour to be what you desire to appear. 29. Aristotle inspired: Be studious to preserve your reputation; if that be once lost, you are like a cancelled writing, of no value, and at best you do but survive your own funeral. 30. William Hazlitt said: A man's reputation is not in his own keeping, but lies at the mercy of the profligacy of others. Calumny requires no proof. The throwing out of malicious imputations against any character leaves a stain which no after‑refutation can wipe out. To create an unfavourable impression, it is not necessary that certain things should be true, but that they have been said. The imagination is of such delicate texture that even words wound it., It is settled legal position that the right to privacy is implicit in the right to life and liberty guaranteed to citizens under Article 21 of the Constitution of India. In Justice K. S. Puttaswamy (Retired) and Anr. (supra), it was held that life and personal liberty are inalienable rights inseparable from a dignified human existence. The dignity of the individual, equality between human beings and the quest for liberty are foundational pillars of the Indian Constitution. Life and personal liberty are not creations of the Constitution; they are recognized by the Constitution as inhering in each individual as an intrinsic and inseparable part of the human element. Privacy is a constitutionally protected right which emerges primarily from the guarantee of life and personal liberty in Article 21. Elements of privacy also arise in varying contexts from other facets of freedom and dignity recognised and guaranteed by the fundamental rights contained in Part III. Privacy is the constitutional core of human dignity. At a normative level privacy sub‑serves those eternal values upon which the guarantees of life, liberty and freedom are founded. At a descriptive level, privacy postulates a bundle of entitlements and interests which lie at the foundation of ordered liberty., The Constitution of India guarantees the right to freedom of speech and expression under Article 19(1)(a) subject to the restrictions imposed under Article 19(2). Article 19 provides: (1) All citizens shall have the right to freedom of speech and expression; (2) Nothing in sub‑clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, insofar as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub‑clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence., Thus, although the plaintiff and his family members have a right to privacy which is part of Article 21, the defendant has a right to freedom of speech and expression subject to the restrictions imposed under Article 19(2). In this case it is necessary to balance the fundamental rights of the plaintiff and those of the defendant. In Subramanian Swamy (supra) the Supreme Court of India discussed the concept of balancing fundamental rights. The question before the Court was whether sections 499 and 500 of the Indian Penal Code are violative of Article 21. Paragraph 136 observes that the right conferred under Article 19(1)(a) must be kept on a different pedestal than the individual reputation recognised as an aspect of Article 21. It was submitted that freedom of speech and expression, including freedom of the press, should be given higher status and the individual's right to reputation should yield to that right. Paragraph 137 states that the issue is the sustenance and balancing of the separate rights, one under Article 19(1)(a) and the other under Article 21, requiring an equipoise and counter‑weighing of fundamental rights. The Court cited Acharya Maharajshri Narendra Prasadji Anandprasadji Maharaj v. State of Gujarat, 1975 1 SCC 11, observing that a particular fundamental right cannot exist in isolation; one right may have to coexist in harmony with the exercise of another right by others and with reasonable exercise of State power in the interest of social welfare. Paragraph 144 emphasizes that balancing of fundamental rights is a constitutional necessity and it is the duty of the Supreme Court of India to strike a balance so that the values are sustained., The submission is that continuation of criminal defamation under Section 499 of the Indian Penal Code is constitutionally inconceivable as it creates a serious dent in the right to freedom of speech and expression. It is urged that having defamation as a component of criminal law is an anathema to the idea of free speech recognised under the Constitution, and therefore criminalisation of defamation in any form is an unreasonable restriction. Reputation has been held to be an inseparable aspect of the right to life under Article 21, and the State, in order to sustain and protect the reputation of an individual, has kept the provision under Section 499 IPC alive as part of law. The seminal point is the permissibility of criminal defamation as a reasonable restriction understood under Article 19(2). Criminal defamation, a pre‑Constitution law, is totally alien to the concept of free speech. The right to reputation is a constituent of Article 21; it is an individual's fundamental right and therefore balancing of fundamental rights is imperative. The Court has spoken about synthesis and overlapping of fundamental rights, and sometimes conflicts between two rights and competing values. In the name of freedom of speech and expression, the right of another cannot be jeopardised. Reputation being an inherent component of Article 21 should not be allowed to be sullied solely because another individual can exercise his freedom. It is not a restriction that inevitably impairs the circulation of thought and ideas. An aggrieved person may approach the court to state that he has been wronged and abused and can take recourse to a procedure recognised and accepted in law to retrieve and redeem his reputation. Therefore, the balance between the two rights needs to be struck. Reputation of one cannot be allowed to be crucified at the altar of the other's right of free speech. The legislature, in its wisdom, has not thought it appropriate to abolish criminal defamation in the prevailing social climate., In Subramanian Swamy (supra) although the Supreme Court of India was concerned with sections 499 and 500 of the Indian Penal Code, a civil action in case of defamation in the absence of a codified law was considered. Paragraph 66 notes that the intention of the Founding Fathers and the contextual meaning of the word defamation were highlighted, stating that the word may not even call for a civil action in the absence of a codified law. The Court referred to M. C. Setalvad's Hamlyn Lectures (Twelfth Series) The Common Law in India, where India's first Attorney General expressed that an important branch of law which has remained uncodified in India is the law relating to civil wrongs. Rights protected include security of person, domestic relations, property and reputation. The action for damages as a remedy for violations of rights and duties has been fashioned by lawyers, judges and juries of England as an instrument for making people adhere to standards of reasonable behaviour and respect the rights and interests of one another. Paragraph 67 states that the Common Law of England was the prevalent law before the Constitution came into force and is declared as a law in force under Article 372 of the Constitution of India by a larger Bench decision in Supt. and Remembrancer of Legal Affairs v. Corporation of Calcutta. Paragraph 68 cites Ganga Bai v. Vijay Kumar, 1974 2 SCC 393, where the Court ruled that there is an inherent right in every person to bring a civil suit unless barred by statute. Paragraph 69 clarifies that a civil action for which there is no codified law in India can be taken under Section 9 of the Code of Civil Procedure, 1908, unless there is a specific statutory bar., The Supreme Court of India, in the judgment reported in (1994) 6 SCC 632 in the matter between R. Rajagopal @ R. R. Gopal and Anr. v. State of Tamil Nadu, held that the right to privacy as an independent and distinctive concept originated in the field of tort law, under which a new cause of action for damages resulting from unlawful invasion of privacy was recognised. This right has two aspects: (i) the general law of privacy which affords a tort action for damages resulting from an unlawful invasion of privacy; and (ii) constitutional recognition of the right of privacy which protects personal privacy against unlawful governmental invasion. Paragraph 26 summarises the broad principles: (1) The right to privacy is implicit in the right to life and liberty guaranteed by Article 21. It is a 'right to be let alone'. A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child‑bearing and education among other matters. No one can publish anything concerning these matters without his consent, whether truthful or not, and whether laudatory or critical. Publication becomes unobjectionable if based upon public records, including court records, because once a matter becomes a matter of public record the right to privacy no longer subsists. However, in the interests of decency (Article 19(2)) an exception must be carved out for a female victim of sexual assault, kidnapping, abduction or similar offence so that her name and the incident are not further publicised. (2) In the case of public officials, the right to privacy or a remedy for damages is not available with respect to acts and conduct relevant to the discharge of official duties, even where the publication is false, unless the official establishes reckless disregard for truth. It is enough for the defendant (member of the press or media) to prove that he acted after reasonable verification of the facts; it is not necessary to prove the truth of the statement. Where the publication is proved false and actuated by malice or personal animosity, the defendant has no defence and is liable for damages. In matters not relevant to discharge of duties, the public official enjoys the same protection as any other citizen. The judiciary, protected by the power to punish for contempt of court, and Parliament and legislatures, protected by Articles 105 and 104 respectively, represent exceptions to this rule. (3) The Government, local authority and other organs exercising governmental power cannot maintain a suit for damages for defamation. (4) Rules 3 and 4 do not mean that the Official Secrets Act, 1923, or any similar enactment does not bind the press or media. (5) There is no law empowering the State or its officials to impose prior restraint upon the press or media. Paragraph 27 adds that these principles are broad, not exhaustive, and must develop case by case., Thus, the following legal position emerges: (13.1) Reputation, being an inherent component of Article 21, should not be allowed to be sullied solely because another individual can exercise his freedom; the balance between the two rights must be struck. (13.2) The right to privacy is implicit in the right to life and liberty guaranteed by Article 21; it is a right to be let alone. (13.3) No one can publish anything concerning the privacy matters without the citizen’s consent. (13.4) Publication becomes unobjectionable if based upon public records, including court records, because once a matter is a public record the right to privacy no longer subsists. (13.5) In the case of public officials, the right to privacy or a remedy for damages is not available with respect to acts and conduct relevant to discharge of official duties; it must be established that such publication is totally false and made without reasonable verification of the facts. (13.6) Where the publication is proved false and actuated by malice or personal animosity, the defendant has no defence and is liable for damages. (13.7) In matters not relevant to discharge of duties, the public official enjoys the same protection as any other citizen. (13.8) The right to privacy as an independent and distinctive concept originated in tort law, under which a cause of action for damages resulting from unlawful invasion of privacy is recognised., The following factors must be taken into consideration: (i) Whether the tweets, media content, videos, press conference etc., which are the subject matter of the present suit, concern acts and conduct of the public official, namely Sameer Wankhede, relevant to the discharge of his official duties; (ii) Whether the said publications contain allegations made with reckless disregard for truth, i.e., are totally false; (iii) Whether the publications are proved false and actuated by malice or personal animosity; (iv) Whether the defendant acted after reasonable verification of the facts., The defendant alleges that the tweets, media content, videos and press conferences were made to make the public aware of two important aspects: (1) That Mr. Sameer Wankhede is a Muslim by birth and secured his government job by falsely claiming to be from a scheduled caste (Allegation No.1); and (2) That material shows that Mr. Wankhede sought illegal gratification in cases filed by the Narcotics Control Bureau (Allegation No.2). The defendant contends that both aspects relate to the discharge of Mr. Wankhede’s official duties., The plaintiff has filed an additional affidavit dated 12/11/2021 and produced several documents to substantiate his contention that his name is Dnyandeo and he belongs to the Mahar caste recognised as a scheduled caste. The documents include: (i) Certificate dated 21/07/1972 issued by NCC Senior Division Army Wing (Infantry) showing the name Dnyandeo; (ii) Statement of Marks of final Bachelor of Arts Examination dated 17/07/1973 showing the name Dnyandeo; (iii) Caste Certificate dated 24/02/1974 issued by Tahsildar, Washim, District Akola showing the name Dnyandeo and Mahar caste; (iv) Passing Certificate dated 12/03/1974 of the final Bachelor of Arts Examination showing the name Dnyandeo; (v) Character Certificate dated 22/03/1974 issued by Deputy Chief Executive Officer, Zilla Parishad, Akola showing the name Dnyandeo; (vi) Statement of Marks of Masters in Arts Examination Part‑II dated 02/08/1975 showing the name Dnyandeo; (vii) Driving License dated 26/05/1998 issued by RTO Mumbai showing the name Dnyandeo; (viii) Form MTR 42‑A dated 02/07/2007 showing the name Dnyandeo and that his wife, Mrs. Zaheda Wankhede, was his nominee; (ix) School Leaving Certificate dated 14/02/2008 (duplicate) showing the name Dnyandeo; (x) Caste Certificate dated 05/03/2008 showing the name Dnyandeo and caste Mahar; (xi) Migration Certificate dated 20/03/2009 showing the name Dnyandeo; (xii) another Caste Certificate showing the name Dnyandeo and that he belongs to Mahar caste recognised as scheduled caste; (xiii) Information submitted to the Maharashtra State Excise Department, Raigad, showing the name Dnyandeo and Mahar caste; (xiv) Passport showing the name Dnyandeo; (xv) PAN Card (earlier style) showing the name Dnyandeo; (xvi) another PAN Card (earlier style) showing the name Dnyandeo; (xvii) Voter’s Identity Card showing the name Gyandev; (xviii) Aadhar Card showing the name Dhyandev; (xix) Identity Card issued by the Government of Maharashtra (Maharashtra State Excise); (xx) Affidavit of the plaintiff’s deceased wife dated 06/02/2002 showing that she married the plaintiff as per Hindu rites and converted to Hindu religion, naming the plaintiff as Dnyandev; and (xxi) Ration Card of the plaintiff’s deceased wife showing the name Dnyandev.
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The Plaintiff has produced the following documents to establish his name as Dnyandeo and his belonging to the Mahar caste recognized as a Scheduled Caste: a copy of his deceased wife's Driving Licence showing the name Dayandeo; a copy of his deceased wife's Voter Identity Card showing the name Gyandev; a copy of his deceased wife's Aadhaar Card showing the name Dhyandev; a copy of his daughter's Permanent Account Number Card showing the name Dnyandev; a copy of his daughter's Police Clearance Certificate issued by the Deputy Commissioner of Police (S.B.), Mumbai City for the purpose of obtaining Sanad showing the name Dnyandev; a copy of his son's School Leaving Certificate dated 30/06/1995 showing the name Dnyandev and indicating that the son belongs to the Mahar caste; and a copy of his son's Bachelor of Arts Passing Certificate showing the name Dnyandeo., The Plaintiff has produced voluminous documents to show that his name is Dnyandeo and that he belongs to the Mahar caste recognized as a Scheduled Caste. Most of the above‑referred documents are part of the public record. The document at page 42 of the plaint, which the Defendant has produced, is stated to be from the record of the Municipal Corporation of Greater Mumbai; however, there are interpolations on the said document and doubts regarding its authenticity. Consequently, the Defendant has not reasonably verified the facts., The Defendant realised the above aspect after arguments were concluded on 12/11/2021 and the matter was adjourned for orders. The Defendant then filed a praecipe dated 16/11/2021 before the pronouncement of the order, stating that an additional affidavit of the Plaintiff was served on the Defendant on 11/11/2021, leaving the Defendant insufficient time to reply. The praecipe also indicated that the Defendant had obtained further information concerning the birth certificate of the Plaintiff’s son, Sameer Wankhede. Along with the praecipe, Exhibit‑A – a letter dated 15/11/2021 from the Health Officer, East Ward, Municipal Corporation of Greater Mumbai – was produced. The letter records that in 1979 the birth certificate listed the father’s name as Dawood K. Wankhede, but it was corrected on 04/05/1993 to Dnyandeo Kachru Wankhede. The mother’s name is Zahida Bano, the child’s name is Sameer, date of birth 14/11/1979, and religion is recorded as Muslim. The praecipe also annexed a declaration dated 26/04/1993 executed by Jivan S. Jogure and Arun N. Choudhari, stating that they know Dnyandeo Wankhede and that the correct name is Dnyandeo Kachru Wankhede, not Dawood Wankhede. Various documents were annexed to the praecipe as Exhibit C‑1 (School Leaving Certificate of St. Paul High School Primary dated 12/07/1986), Exhibit C‑2 (Admission Form executed by the Plaintiff dated 30/06/1986), and Exhibit C‑3 (School Leaving Certificate (Primary Section IV) dated 12/06/1989)., Without examining the correctness and authenticity of the documents and information produced by the Defendant along with the praecipe dated 16/11/2021, it is clear that the Defendant, while making tweets, media content, videos, and press conferences regarding allegation No. 1, did not carry out reasonable verification of facts. The documents now sought to be produced were obtained after the matter was reserved for orders on 12/11/2021, and in any case the information was obtained after the Defendant had already made public statements. The Defendant should have reasonably verified the facts before making allegations., Mr. Shaikh, learned Senior Counsel on behalf of the Plaintiff, relied on the judgment of the Delhi High Court in Laxmi Murdeshwar Puri, particularly paragraph 28, which states that before posting messages on social media platforms against public figures, a preliminary exercise of verification is required. The Court held that the defendant should have sought clarification from the person concerned or, at the very least, from official sources before publishing such messages. Prima facie, there is substance in the contention that the Defendant has not acted after reasonable verification of facts., Regarding the second aspect, that Mr. Sameer Wankhede sought illegal gratification, the relevant tweet (Exhibit‑B, page 38) alleges that Sameer Wankhede is conducting the business of extortion in the Maldives. Exhibit‑C (page 39) contains photographs taken in the Maldives. Exhibit‑D (page 40) contains a tweet stating that Sameer Wankhede has admitted visiting the Maldives but denies a visit to Dubai, and provides purported proof of his presence at the Grand Hyatt Hotel in Dubai on 10 December 2020. However, the Plaintiff’s counsel submitted that the photograph was actually taken at the lounge of Mumbai Airport. Further, Deputy Director General of the Narcotics Control Bureau, Ashok Jain, stated on 22/10/2021 (as reported by ANI) that there was no application from Sameer Wankhede for travel to Dubai; he had sought permission only for travel to the Maldives with his family. These aspects demonstrate that the Defendant has not taken due care and has not conducted reasonable verification., Serious allegations have also been made against the Plaintiff’s son, Sameer Wankhede, by Panch‑Prabhakar Raghoji Sail in an affidavit dated 23/10/2021. Mr. Damle, learned Senior Counsel for the Defendant, submitted that the evidence produced by the Defendant has assisted the Government machinery in taking corrective steps against Sameer Wankhede. He noted that Sameer Wankhede is facing a vigilance inquiry and that the Director of the Narcotics Control Bureau has transferred six cases from the Mumbai Unit, headed by Zonal Director Sameer Wankhede, to its operation unit in Delhi. He further stated that the allegations against Sameer Wankhede are being investigated by the vigilance team of the Narcotics Control Bureau and a Special Investigation Team formed by the Maharashtra Police., It is also important to note that the Defendant’s son‑in‑law was arrested on 13/01/2021 by the Narcotics Control Bureau in a Narcotic Drugs and Psychotropic Substances case and was released on bail on 27/09/2021. The Defendant’s tweets, media content, videos, and press conferences began on 14/10/2021, indicating that they are actuated by malice or personal animosity. The right to privacy is implicit in the right to life and liberty guaranteed to citizens under Article 21 of the Constitution of India. While a public officer such as the Plaintiff’s son, who is the Zonal Director of the Narcotics Control Bureau, is subject to public scrutiny, any commentary must be made after reasonable verification of facts. The balance between the Plaintiff’s right to privacy and the Defendant’s right to freedom of speech and expression requires that the Defendant publish any defamatory content only after carrying out reasonable verification, as held by the Supreme Court., One contention raised by the Defendant is that the Plaintiff should have complied with Order 1 Rule 8 of the Code of Civil Procedure, as the Plaintiff has filed the present suit claiming defamation of the Plaintiff and his family members. Mr. Damle, learned Senior Counsel for the Defendant, relied on a Delhi High Court judgment in Harsh Mandiratta, which held that an action for defamation is maintainable only by the person who is defamed, not by friends, relatives, or family members. In contrast, Mr. Shaikh, learned Senior Counsel for the Plaintiff, relied on an Orissa High Court judgment in Navin Das, where a suit was filed by a wife concerning a newspaper item that tarnished the reputation of her father‑in‑law and husband. The Court observed that the publication affected the reputation of the plaintiff’s family as a unit as well as individual members, and these observations are applicable to the present case., In the present case, the Plaintiff alleges that his family – daughter, son, and daughter‑in‑law – have been defamed, and also asserts that he himself has been defamed. Additionally, the Plaintiff claims that his religion is Muslim but the records have been altered to show him as belonging to the Mahar community, a Scheduled Caste, and that his name has been recorded as Dawood instead of Dnyandeo. Even if the allegations are directed at the Plaintiff’s son, the Plaintiff is also defamed in the process. Consequently, at this ad‑interim stage, although the contentions are not being dealt with in detail, the suit appears prima facie maintainable in the facts and circumstances of the case., Mr. Damle, learned Senior Counsel for the Defendant, submitted that his case is covered by Exception No. 1, Exception No. 2, Exception No. 3 and Exception No. 9 to Section 499 of the Indian Penal Code. Mr. Shaikh, learned Senior Counsel for the Plaintiff, argued that the present case is a civil action and a remedy in tort law, and therefore Section 499 of the Indian Penal Code is inapplicable. At this ad‑interim stage, the Court refrains from examining these aspects. Regarding the civil action, the Supreme Court has laid down guidelines in the case of R. Rajgopal, which have been considered while deciding the application seeking ad‑interim relief against the Defendant., Mr. Damle, learned Senior Counsel, is prima facie correct in contending that the Plaintiff cannot seek prayer clause (c) in a blanket manner as prayed. It is clarified that only a few tweets and social‑media posts annexed to the plaint have been considered for the ad‑interim relief under prayer clause 5(c). The factors mentioned in paragraph 15 are answered as follows: (i) the factual position shows that the Defendant has raised important issues concerning the acts and conduct of the Plaintiff’s son, Sameer Wankhede, who is a public official; (ii) in view of the letter dated 15/11/2021 of the Health Officer, East Ward, Municipal Corporation of Greater Mumbai, produced on 16/11/2021 (after the order was reserved on 12/11/2021), it cannot be said at this stage that allegation No. 1 is totally false; (iii) in view of the affidavit dated 23/10/2021 of Panch‑Prabhakar Raghoji Sail, it cannot be said at this stage that allegation No. 2 is totally false; (iv) the Defendant’s son‑in‑law was arrested on 13/01/2021 by the Narcotics Control Bureau in an NDPS case and released on bail on 27/09/2021, and the Defendant’s tweets, media content, videos, and press conferences against the Plaintiff and his family started on 14/10/2021, indicating malice, though it cannot be said that the same are totally false; and (v) it cannot be said that the Defendant has acted after reasonable verification of facts, but at this prima facie stage, based on the material on record, it cannot be said that the allegations made by the Defendant are totally false., In view of the above, ad‑interim relief under clause 5(c) cannot be granted at this stage. However, the Defendant is directed to conduct reasonable verification of the facts before publishing, writing, or speaking in any media, including electronic media and social media, or publishing any content or material that is defamatory of the Plaintiff or his family members. This direction is issued in accordance with the principles set out by the Supreme Court in R. Rajgopal., The Defendant is ordered to file a reply to the interim application as well as to the additional affidavit dated 12/11/2021 filed on behalf of the Plaintiff within two weeks from today. The Plaintiff may file a rejoinder, if any, within one week thereafter. The matter is stood over to 20 December 2021.
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Through: Mr. Sidharth Chopra, Mr. Yatinder Garg, Mr. Akshay Maloo and Ms. Rimjhim Tiwari, Advocates. This hearing has been done through hybrid mode. I.A. 14170/2023 (for exemption) Allowed, subject to all just exceptions. Application is disposed of. I.A. 14171/2023 (exemption from advance notice to the Defendants) This is an application for exemption from issuing notice to Defendant No. 39 i.e., Department of Telecommunications, Defendant No. 40 i.e., Ministry of Electronics and Information Technology, Defendant No. 31 i.e. Bharat Sanchar Nigam Limited and Defendant No. 34 i.e., Mahanagar Telephone Nigam Limited. Exemption from advance notice to the Defendants is granted. I.A. 14171/2023 is disposed of. I.A. 14172/2023 (for additional documents) This is an application seeking leave to file additional documents under the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 (hereinafter Commercial Courts Act). The Plaintiff, if it wishes to file additional documents at a later stage, shall do so strictly as per the provisions of the Commercial Courts Act. Application is disposed of., Let the plaint be registered as a suit. Issue summons to the Defendants through all modes upon filing of Process Fee. The summons to the Defendants shall indicate that a written statement to the plaint shall be positively filed within 30 days from date of receipt of summons. Along with the written statement, the Defendants shall also file an affidavit of admission/denial of the documents of the Plaintiffs, without which the written statement shall not be taken on record. Liberty is given to the Plaintiffs to file a replication within 15 days of the receipt of the written statement(s). Along with the replication, if any, filed by the Plaintiffs, an affidavit of admission/denial of documents of the Defendants shall be filed by the Plaintiffs, without which the replication shall not be taken on record. If any of the parties wish to seek inspection of any documents, the same shall be sought and given within the timelines. List before the Joint Registrar for marking of exhibits on 13th October 2023. It is made clear that any party unjustifiably denying documents would be liable to be burdened with costs. List before the High Court on 19th December 2023., The Plaintiffs, Star India Private Limited (hereinafter Plaintiff No. 1) and Novi Digital Entertainment Private Limited (hereinafter Plaintiff No. 2) have filed the present suit seeking an injunction to restrain the illegal and unauthorized dissemination of the Asia Cup Cricket Match 2023 and associated content by the Defendants. The Plaintiffs' case is that there are 65 TV channels in eight languages, including general entertainment and sporting channels which are being telecasted by Plaintiff No. 1. The Plaintiffs own rights in respect of events relating to cricket, football, Formula 1, badminton, tennis, hockey, domestic and international cricket matches, organized by the Board of Control for Cricket in India and the International Cricket Council, etc. Plaintiff No. 2 owns and operates the online video streaming platform/website known by the name Hotstar and the mobile application Disney+ Hotstar, over which all the events for which the rights are enjoyed by Plaintiff No. 1 are also streamed by Plaintiff No. 2. Plaintiff No. 2 is the affiliate company of Plaintiff No. 1., The Asia Cup cricket tournament is to commence from 31st August 2023 till 17th September 2023. The Plaintiffs own the exclusive licence of the media rights of various sporting events which are telecasted on their sports channels. As per a letter dated 18th August 2022, the Asian Cricket Council granted to Plaintiff No. 1 the exclusive global media rights for the Asia Cup Tournaments for the period 2018 to 2023., The present suit has been filed by the Plaintiffs against the following Defendants: Defendants No. 1 to 22 are claimed to be rogue websites. Defendant Nos. 23 to 29 are the domain name registrars of the domain names used by the rogue websites. Defendant Nos. 30 to 38 are the Internet Service Providers. Defendant Nos. 39 and 40 are the Department of Telecommunications and the Ministry of Electronics and Information Technology. Defendant No. 41 are John Does. The Plaintiffs have severe apprehension that owing to the past conduct of these rogue websites, the said websites are likely to illegally stream and telecast the Asia Cup cricketing events scheduled from 31st August 2023 onwards. Mr. Chopra, Senior Counsel appearing for the Plaintiffs, relies upon the documents on record in respect of each of the websites to show how the said websites are generally involved in illegal streaming and broadcasting pirated content of various sporting events. He highlights that even past sporting events such as the ICC T20 Men's World Cup Qualifier 2023 were infringed and are illegally currently being streamed on websites. He further submits that new websites are continuously surfacing and, therefore, a dynamic injunction ought to be granted by the High Court., A perusal of the aforementioned letter dated 18th August 2022 issued by the Asian Cricket Council shows that Plaintiff No. 1 has been given exclusive global media rights via agreement dated 29th June 2017. The said rights include television rights, audio rights, internet rights and mobile rights. The period for each right is enjoyed by the Plaintiff for the Asia Cup Tournaments between the years 2018 and 2023. Thus, the ownership of the rights for exclusive telecast and broadcast as also online streaming in favour of the Plaintiff is not in doubt., The documents also show that the websites are not merely indulging in streaming Star Sports channels, but various other established channels as well. Moreover, the broadcasting is not limited to cricket matches, but also other sporting events, such as the French Ligue and the La Liga football. Therefore, the High Court is convinced that the said websites belonging to Defendant Nos. 1 to 22 are rogue websites, primarily consisting of pirated content. The identity of these websites is also unknown as they are privacy protected with the domain name registrars., The past experience of various sporting events shows that such events are usually unauthorisedly broadcast and streamed. The legal position as to grant of dynamic injunctions is settled in UTV Software Communications Limited v. 1337X.to (2019) 78 PTC 375 (Delhi). Several other orders have also been passed by this Court with respect to rogue websites, such as in CS(COMM) 157/2022 titled Star India Private Limited v. Live Flixhub, CS(COMM) 471/2019 titled Star India Private Limited v. Moviemad.biz & Ors, and CS(COMM) 195/2019 titled Star India Private Limited v. Extramovies.host & Ors. In fact, last year, in respect of this very tournament, Star India Private Limited v. MHDTV World & Ors [2022/DHC/004741] was filed and, in order to safeguard the Plaintiffs' rights and with a view to curb piracy, via judgment dated 9th November 2022 an ex‑parte interim injunction was passed by this High Court. These orders have clearly established that these websites surface frequently, and on a periodic basis, as domain names can be registered with minor modifications, and the content of the website can be very easily moved from one website to another., Under such circumstances, the High Court is convinced that the Plaintiff has made out a prima facie case for grant of an ex‑parte ad interim injunction, which is also a dynamic injunction. The balance of convenience lies in favour of the Plaintiffs and irreparable injury would be caused if the interim injunction is not granted. Disclosure orders are also liable to be passed against the domain name registrars, and further, the Ministry of Electronics and Information Technology and the Department of Telecommunications ought to also issue blocking orders to all the Internet Service Providers to block the said rogue websites., Considering the investment which the Plaintiffs have made in acquiring the rights of these events, any illegal broadcasting would severely affect the monetary interest of the Plaintiffs, and also diminish the value of the rights of such sporting events. Accordingly, till the next date of hearing, Defendant Nos. 1 to 22 and all others acting for or on their behalf shall be restrained from hosting, streaming, broadcasting, rebroadcasting, retransmitting or in any other manner communicating to the public, or disseminating to the public, any cricketing events, extracts, excerpts, highlights in relation to cricket matches relating to the Asia Cup 2022 commencing from 31st August 2023 to 17th September 2023., The domain name registrars shall also immediately block the said domain names and maintain status quo thereof. The domain name registrars shall also disclose to the Plaintiffs the following: (a) Complete details (such as Name, address, email address, phone number, IP address, KYC details, etc.) of Defendant Nos. 1 to 22 (and such other websites which are discovered during the course of the proceedings and notified on affidavit by the Plaintiffs to have been infringing the Plaintiffs' exclusive rights, copyrights and broadcast reproduction rights); (b) Mode of payment along with payment details used for registration of domain name by the registrant i.e., Defendant Nos. 1 to 22 (and such other websites ...); (c) Details of other websites registered by Defendant Nos. 1 to 22 (and such other websites ...) using similar details, same credit card, payment gateway etc. (disclosed as per clause b above) with Defendant Nos. 23 to 29; (d) Details of complaints received by Defendant Nos. 23 to 29 in past against Defendant Nos. 1 to 22 (and such other websites ...) ., The Department of Telecommunications and the Ministry of Electronics and Information Technology, as also the Internet Service Providers, shall block the Defendant Nos. 1 to 22 websites. The blocking orders shall be issued by the Department of Telecommunications within 24 hours after service of this order. Pursuant to the blocking orders, all the Internet Service Providers, i.e., Defendant Nos. 30 to 38, shall block access to the URLs as well as the mobile applications within 24 hours and shall not permit the download of these applications or the streaming of the rogue websites. The said websites are listed hereinbelow: 1. crichd.sc 2. hzcasthd.xyz 3. ub.free streams-live1.tv 4. picvook.com 5. bingsport.com 6. 2sport.tv 7. armaanpatel.com 8. amzstream.tv 9. 247sport.net 10. buffsports.stream 11. cricbuzzlive.com 12. es.vipbox.lc 13. footyradar.com 14. millionscast.com 15. sportsbay.vip 16. tv.xwu8wvke.ink 17. cozmoe.com., During the currency of these events covered by the Plaintiffs' agreements, if the Plaintiffs discover other mirror websites or rogue websites which are broadcasting and telecasting the sporting events covered by the present suit, they may: (i) file an affidavit in this regard before the High Court along with evidence thereof. The said websites shall stand blocked with immediate effect, upon notice being issued by the Plaintiffs to the Department of Telecommunications and Internet Service Providers that such an affidavit has already been filed before this Court. (ii) Upon the Department of Telecommunications receiving the notices and communications from the Plaintiffs that the affidavits have been filed before the Court, the orders for blocking such further rogue websites shall be passed immediately and in any case within 24 hours, so that the websites do not continue to stream infringing content in any manner whatsoever., Compliance with Order XXXIX Rule 3 shall be made by email within one week, considering the large number of parties in the present suit. Reply to the application shall be filed within four weeks from the date of service of the present order. Rejoinder shall be filed within four weeks thereafter. List on 13th October 2023 before the Joint Registrar. List on 19th December 2023 before the High Court.
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The petitioners are CA V. Venkata Sivakumar, the petitioner in both writ petitions, and the respondents are: (i) Insolvency and Bankruptcy Board of India, represented by the Deputy General Manager, 7th Floor, Mayur Bhawan, Shankar Market, Connaught Circus, New Delhi 110001; (ii) Indian Institute of Insolvency Professionals of the Institute of Chartered Accountants of India, represented by Mr. Rahul Madan, Managing Director, ICAI Bhawan, 8th Floor, Hostel Block A‑29, Sector 62, Noida, Uttar Pradesh 201309; (iii) Institute of Chartered Accountants of India, represented by Dr. Binoy J. K. Attadiyil, Managing Director, 3rd Floor, ICSI House, Institutional Area, Lodi Colony, New Delhi 110003; (iv) Insolvency Professional Agency of the Institute of Cost Accountants of India, represented by Dr. S. K. Gupta, Chief Executive Officer, 4th Floor, CMA Bhawan, Institutional Area, Lodhi Road, New Delhi 110003; (v) The Union of India, Secretary to the Government of India, Ministry of Corporate Affairs, Garage No.14, A‑Wing, Shastri Bhawan, Rajendra Prasad Road, New Delhi 110001., Prayer in Writ Petition No. 16650 of 2020: The petitioner seeks a writ of declaration under Article 226 of the Constitution of India that the provisions of Chapter III of the Insolvency and Bankruptcy Code, 2016, particularly Sections 204(a), (b), (c), (d) and (e), are ultra vires the Constitution, being manifestly arbitrary, substantively unreasonable, excessive legislation and repugnant to the objectives of the Insolvency and Bankruptcy Code, 2016, in violation of Articles 14, 19(1)(g) and 21 of the Constitution., Prayer in Writ Petition No. 14448 of 2021: The petitioner seeks a writ of declaration under Article 226 of the Constitution of India that Regulation 23A of the Insolvency and Bankruptcy Board of India (Model Bye‑Laws and Governing Board of Insolvency Professional Agencies) Regulations, 2016, as amended by Notification No. IBBI/2016‑17/GN/REG0001 dated 23‑07‑2019, is ultra vires the Constitution and directs the first and second respondents to pay compensation for the financial loss and mental agony suffered by the petitioner, to be paid to the Tamil Nadu Chief Minister’s Public Relief Fund., Counsel for the petitioner: Mr. C. A. V. Venkata Sivakumar, appearing in person. Counsel for the respondents: Mr. Sankaranarayanan, Additional Solicitor General of India, assisted by Mr. C. V. Ramachandramurthy for Respondent 2; Mr. Rajesh Vivekanandan, Deputy Secretary General for Respondent 1; Mr. K. Subburanga Bharathi for Respondent 6. No appearance for Respondents 3, 4 and 5., The petitioner is a practising Chartered Accountant for thirty years and a member of the Institute of Chartered Accountants of India. He became a member of the Insolvency and Bankruptcy Board of India (membership No. IBBI/IPA‑001/IP‑P00184/2017‑18/10852) and has been practising as an Insolvency Professional since 2018. Under Regulation 7(A) of the Insolvency and Bankruptcy Board of India (Insolvency Professionals) Regulations, 2016, an Insolvency Professional must obtain an Authorisation for Assignment (AFA) from an Insolvency Professional Agency. The petitioner applied to the Indian Institute of Insolvency Professionals of ICAI on 31‑12‑2019; the application was rejected on 14‑01‑2020. He challenged the constitutional validity of Regulations 7A and 13 in Writ Petition No. 9132 of 2020, which was dismissed on 28‑07‑2020. He appealed the rejection on 20‑07‑2020 and filed a second application for AFA on 01‑08‑2020, which was again rejected on 25‑08‑2020. An appeal against this second rejection was filed before the Membership Committee on 25‑08‑2020., On 28‑08‑2020 the Insolvency and Bankruptcy Board of India issued a show‑cause notice to the petitioner for alleged contravention of Section 208(2)(a) and 208(2)(e) of the Insolvency and Bankruptcy Code and other regulations. The petitioner submitted his explanation on the same day. On 31‑08‑2020 the Indian Institute of Insolvency Professionals of ICAI issued another show‑cause notice proposing disciplinary action. These circumstances led the petitioner to file the present writ petitions., Regulation 23A of the Insolvency and Bankruptcy Board of India (Model Bye‑Laws and Governing Board of Insolvency Professional Agencies) Regulations, 2016 provides that the authorisation for assignment shall stand suspended upon initiation of disciplinary proceedings by the Agency or by the Board. The petitioner contends that this regulation grants uncontrolled powers to the Board and the Agency, depriving a member of his profession, causing huge financial loss, and denying any opportunity of being heard. He argues that the regulation violates fundamental rights, is manifestly arbitrary, substantively unreasonable, excessive, and repugnant to the objectives of the Insolvency and Bankruptcy Code, and therefore should be declared unconstitutional., Section 204 of the Insolvency and Bankruptcy Code reads: (a) grant membership to persons who fulfil the requirements set out in its bye‑laws on payment of membership fee; (b) lay down standards of professional conduct for its members; (c) monitor the performance of its members; (d) safeguard the rights, privileges and interests of insolvency professionals who are its members; (e) suspend or cancel the membership of insolvency professionals on the grounds set out in its bye‑laws; (f) redress the grievances of consumers against insolvency professionals; and (g) make public information about its functions, list of members, performance of members and other information as may be specified by regulations. The petitioner submits that Section 204(a) results in unnecessary fee collection, that Section 204(c) leads to repetitive and irrational monitoring, and that the overall provision places insolvency professionals under dual control by the Insolvency and Bankruptcy Board of India and Insolvency Professional Agencies, resulting in double jeopardy, harassment, and violation of fundamental rights., The respondents argue that the Insolvency and Bankruptcy Code was enacted based on the Bankruptcy Law Reform Committee Report dated 04‑11‑2015 and modeled on laws of other jurisdictions and the UNCITRAL legislative guide. The report envisages a twin‑tier regulatory framework for insolvency professionals, requiring an AFA under Regulation 7A and providing for its suspension under Regulation 23A upon initiation of disciplinary proceedings. They contend that the regulation strengthens regulatory control, is not violative of any fundamental right, and that the petitioner’s earlier challenge to Regulation 7A was dismissed by a Division Bench on 03‑11‑2020. They further argue that Section 204 serves legitimate purposes of granting membership, setting standards, monitoring performance, safeguarding interests, and addressing grievances, and that dual control does not render the provision unconstitutional., The petitioner, Mr. C. A. V. Venkata Sivakumar, submitted that Regulation 23A does not provide for a hearing before suspension of the AFA, that the lack of a hearing violates the principles of natural justice as laid down in Maneka Gandhi v. Union of India, K. I. Shepherd & Ors. v. Union of India, and H. L. Trehan & Ors. v. Union of India, and that exemplary costs should be imposed to check arbitrary power. He further argued that Section 204 creates multiple disciplinary agencies, leading to parallel proceedings, double jeopardy, and violation of Article 20(2) of the Constitution, and that it imposes excessive burdens on insolvency professionals, infringing the right to life and personal liberty under Article 21. He relied on judgments of the Supreme Court in Mahipal Singh Rana v. State of Uttar Pradesh, N. Sampath Ganesh v. Union of India, Anita Kushwaha v. Pushap Sudan, Swiss Ribbons Pvt. Ltd. & Anr. v. Union of India, Lal Chand (Dead) by LRs & Ors. v. Radha Krishan, State of West Bengal v. Anwar Ali Sarkar, Maganlal Chhaganlal (P) Ltd. v. Municipal Corporation of Greater Bombay, Shri Sitaram Sugar Company Ltd. & Anr. v. Union of India, Collector of Customs, Madras v. Nathella Sampathu Chetty & Anr., Dwarkadas Shrinivas of Bombay v. V. Sholapur Spinning & Weaving Co. Ltd., Subramanian Swamy v. Director, Central Bureau of Investigation, and Municipal Committee Kareli v. State of M.P., asserting that the impugned provisions are arbitrary, unreasonable, and discriminatory., The Additional Solicitor General of India, Mr. Sankaranarayanan, submitted that the petitioner has not demonstrated any constitutional infirmity in Regulation 23A; the provision merely provides for an interim suspension, not a punishment, and hardship cannot be a ground for striking down a provision. Regarding Section 204, he argued that the twin‑tier structure is constitutionally valid, that the petitioner’s earlier challenge was dismissed, and that the provision does not amount to excessive delegation. He emphasized that procedural safeguards, an appellate mechanism, and specific bye‑laws governing show‑cause notices and disciplinary actions exist, thereby preventing arbitrary exercise of power., The learned Additional Solicitor General further submitted that the petitioner’s earlier challenge to Regulation 7A was rejected by the Division Bench in W.P. No. 13229 of 2020, and that the Supreme Court in Union of India & Anr. v. Deloitte Haskins & Sells LLP affirmed that multiple regulatory bodies may exercise disciplinary powers. He noted that the first show‑cause notice was issued by the Insolvency and Bankruptcy Board of India on 28‑08‑2020, followed by a second notice on 31‑08‑2020, and that the Indian Institute of Insolvency Professionals of ICAI conducted disciplinary proceedings and imposed a fine on 01‑12‑2020, after which the Insolvency and Bankruptcy Board of India disposed of its notice without further action., The Court considered the following questions: (i) Whether Regulation 23A is manifestly arbitrary, confers unbridled excessive power on Insolvency Professional Agencies, and violates principles of natural justice; (ii) Whether Section 204 of the Insolvency and Bankruptcy Code violates Article 20(2) of the Constitution by providing for disciplinary proceedings by two agencies, is manifestly arbitrary, prevents access to justice, and is illegal for conferring unbridled excessive powers; and (iii) Whether the present writ petitions are maintainable in law., Regarding Question (i), the Court observed that Regulation 23A merely provides for an automatic suspension of the authorisation for assignment upon initiation of disciplinary proceedings, without granting discretion to the agencies. The suspension is an interim measure, not a punishment, and does not violate natural justice because it is not a final adjudication. While prolonged suspension may cause stigma, the public interest in safeguarding the insolvency process justifies the provision. Consequently, the Court found no infirmity and upheld the constitutional validity of Regulation 23A of the Insolvency and Bankruptcy Board of India (Model Bye‑Laws and Governing Board of Insolvency Professional Agencies) Regulations, 2016., Regarding Question (ii), the Court extracted Article 20(2) of the Constitution, which prohibits multiple punishments for the same offence. It noted that the petitioner’s grievance is that the Insolvency and Bankruptcy Board of India and the Insolvency Professional Agencies may initiate parallel disciplinary proceedings for the same conduct, potentially leading to double jeopardy. However, the Court held that the twin‑tier regulatory framework does not, per se, create illegality or a presumption of double jeopardy, as the provisions are intended to ensure robust oversight and are subject to procedural safeguards. Therefore, while the concern of parallel proceedings is noted, the provision of Section 204 of the Insolvency and Bankruptcy Code is not declared unconstitutional.
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Even in the case of the petitioner, finding that the petitioner has been punished for the same delinquency by the Insolvency and Bankruptcy Board of India (IBBI), the IBBI dropped the Writ Petition Nos. 16650 of 2020 and 14448 of 2021 proceedings. Further, for the very same action it may be possible that both the IBBI and the Insolvency Professionals Association (IPA) can initiate action. Under criminal law, prosecution and punishment may be effected by different agencies or more than one penal provision of law if the gravamen of the charge differs; if the gravamen is the same, double jeopardy arises. A useful reference can be made to the Judgment of the Supreme Court of India in *Sangeethaben Mahendra Bai Patel v. State of Gujarat* (paragraphs 14‑33). Thus, if an individual is punished twice for the same charge, the second punishment or proceeding alone can be challenged, and the provision of law itself cannot be challenged., As stated by the respondents, there is a purpose for which two agencies, namely the IBBI and the IPA, are pressed into service for monitoring and regulating Insolvency Professionals. The relevant portion of the Banking Law Review Committee (BLRC) Writ Petition Nos. 16650 of 2020 and 14448 of 2021 Report dated 04‑11‑2015, as reproduced in the counter‑affidavit, is extracted below., The Committee deliberated on the question of regulation versus development. The Indian experience on self‑regulating professional bodies such as the Institute of Chartered Accountants of India (ICAI), the Bar Council of India and the Institute of Company Secretaries (ICSI) has been reasonably positive in the development of their respective professions and professional standards, but mixed in regulating and disciplining their members. In comparison, financial regulators such as the Securities and Exchange Board of India (SEBI) and the Reserve Bank of India (RBI) have had greater success in preventing systemic market abuse and promoting consumer protection. The Committee therefore believes that a new model of \regulated self‑regulation\ is optimal for the Insolvency Professional (IP) profession, creating a two‑tier structure of regulation., Under this model, the Regulator will enable the creation of a competitive market for IP agencies. Unlike the current structure where professional agencies have a legal monopoly over their domains, the IP agencies under the Board will, within the regulatory framework defined, act as self‑regulating professional bodies that focus on developing the IP profession. They will induct IPs as members, develop professional standards and a code of ethics, audit the functioning of their members, discipline them and take actions against them if necessary, all within standards defined by the Board. The Board will have oversight on the functioning of these agencies and will monitor their performance as regulatory authorities. If an agency is found lacking, the Board will withdraw its registration to act as an IP agency., The role of the IP agencies, as laid down in the BLRC Report, is to be formed according to the Board’s guidelines and to be given legal powers to ensure financial autonomy, including the power to collect fees from their members. The Committee opines that the regulatory structure should promote competition among multiple IP agencies to achieve efficiency gains, better standards, and stronger enforcement. Within this framework, regulation must ensure that IPs are competent, fair, impartial and that conflicts of interest are minimised. The Committee recommends that professional IP agencies establish rules and standards through bye‑laws, create and update relevant entry barriers, and have mechanisms to enforce their rules effectively., The Code specifies the regulatory governance processes to be followed by professional IP agencies in carrying out the following functions: (i) Regulatory functions – drafting detailed standards and codes of conduct through bye‑laws that are public and binding on all members; (ii) Executive functions – monitoring, inspecting and investigating members regularly, gathering information on performance, with the overarching objective of preventing frivolous behaviour and malfeasance in the conduct of IP duties; (iii) Quasi‑judicial functions – addressing grievances of aggrieved parties, hearing complaints against members and taking suitable actions. There is a need for clear separation of these functions, and the IP agencies must at all times follow the regulations and guidelines laid out by the Board., The primary function of professional IP agencies is to set minimum standards of behaviour expected from all IPs. Multiple regulatory instruments with similar outcomes might have different rule‑making processes, thereby causing confusion among affected parties. Hence, the Committee recommends that IP agencies should be empowered to issue only bye‑laws, with the framing process directly overseen by the Board of the IP agency to ensure that issues requiring regulatory intervention are discussed and approved at the highest level. Once a bye‑law is formulated, it should be sent to the Board for approval. In a system governed by the rule of law, no action should be judged against unknown standards. Therefore, before IP agencies can carry out any supervision or adjudication function, they must lay down, in clear and unambiguous terms, the behaviour they expect from member IPs, following a standardised, structured framework that fully informs all stakeholders and establishes credibility and confidence in the overall IP system., In exercising their supervisory powers, IP agencies need to assess whether an IP has complied with the provisions of the bye‑laws. In case of a breach, the agency has the power to impose appropriate penalties. The Committee therefore recommends that each professional IP agency have an independent quasi‑judicial wing responsible for hearing complaints against IPs of that specific agency. In their quasi‑judicial jurisdiction, IP agencies will have the power to impose penalties for non‑compliance on IPs and will perform this function impartially., Thus, the two‑tier regulatory structure is the result of due consideration of an expert report and cannot be termed arbitrary, much less manifestly arbitrary. When a new legislation such as the Insolvency and Bankruptcy Code (IBC) carrying out major reforms is introduced, as held by the Supreme Court of India in *Pioneer Urban Land and Infrastructure Limited* (supra), the legislature must be given free play and there must be room for experimentation and correction. Therefore, the provision in the IBC that subjects Resolution Professionals to monitoring and control by a two‑tier system cannot be termed arbitrary, nor does it block free access to justice even if it may cause hardship to an individual Resolution Professional., The question of the existence of more than one authority with regulatory or disciplinary control over Resolution Professionals was considered in the earlier writ petition filed by the petitioner himself in W.P. No. 13229 of 2020. Paragraph 12 of that petition reads: 'This leads to the next question as to whether the impugned regulations violate Articles 14, 19 and 21 of the Constitution of India. The primary ground on which the regulations are assailed is that they subject registered IPs to the added requirement of obtaining an AFA from the IPA.' Chartered Accountants are subject to the regulatory and disciplinary control of the Institute of Chartered Accountants of India and, in the exercise of audit functions, to the supervisory control of the National Financial Reporting Authority under Section 132 of the Companies Act, 2013. In cases of fraud, they may be removed by the National Company Law Tribunal (NCLT) suo motu under Section 140(5) of the Companies Act, 2013. A Division Bench of the Bombay High Court in *N. Sampath Ganesh v. Union of India* (2020 SCC Online Bom 782) upheld the validity of Section 140(5). Similarly, in contempt jurisdiction, the exercise of control by the court over the right of advocates to appear in court was upheld in *Mahipal Singh Rana v. State of Uttar Pradesh* (2016) 8 SCC 335. Hence, the existence of more than one authority with regulatory or disciplinary control over a professional is not per se unconstitutional. In the specific context of IPs, registration and cancellation are within the domain of the IBBI, whereas the grant, renewal or cancellation of an AFA is within the domain of the IPA, which functions under the supervisory control of the IBBI. Paragraph 4.4.3 of the BLRC Report recommended such a two‑tiered regulatory structure, making the challenge untenable., Moreover, mere conferment of authority on the IBBI and the IPA for supervision, control and disciplinary proceedings cannot be held to be conferring unbridled power. The Regulations and Bye‑laws framed under Section 204 of the IBC provide checks and balances, including procedures for disciplinary action and appellate remedies. Section 204 is only an enabling provision, and there is no constitutional infirmity in any of its clauses (a) to (e)., As regards the challenge to Regulation 23A, the petitioner earlier challenged Section 7A of the Regulation on the same ground of twin‑tier control. The petitioner cannot pick and choose particular regulations one after the other on the same or different grounds and repeatedly file writ petitions. If aggrieved, the petitioner ought to have challenged Regulation 23A when filing the earlier W.P. No. 13229 of 2020; filing repeated writ petitions is barred by the principles of constructive res judicata. The issue of twin control has been specifically decided by this Court in the same parties. The entire provisions of the IBC were upheld by the Supreme Court of India in *Swiss Ribbons (P) Ltd. v. Union of India*. Paragraph 120 of that judgment states: 'The Insolvency Code is legislation that deals with economic matters and, in the larger sense, with the economy of the country as a whole... The experiment contained in the Code, judged by the generality of its provisions and not by so‑called crudities and inequities pointed out by the petitioners, passes constitutional muster.', Recently the Supreme Court of India decided the constitutional validity of Sections 96 to 100 of the IBC in *Dilip B. Jiwrajka v. Union of India & Others*. Accordingly, Writ Petition No. 14448 of 2021 is barred by the principles of res judicata and is without merit, as Regulation 23A has been held intra vires, and W.P. No. 16650 of 2020 is also without merit as an unsuccessful successive challenge to the constitutional vires of the IBC., In the result, the writ petitions are dismissed with no costs. Consequently, the connected miscellaneous petition is closed.
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Leave granted., This appeal is by the appellant seeking appointment as a primary school teacher. He is aggrieved by the judgment of the Division Bench of the Delhi High Court dismissing the writ appeal, which was filed against the order of the Single Judge dismissing his writ petition., Pt. Deendayal Upadhyaya Institute for the Physically Handicapped, hereinafter referred to as the Institute, issued an advertisement in March 2016 calling for applications for appointment to the post of primary school teachers. The vacancy circular issued for this purpose provided the qualifications and the procedure for selection. The basic qualification was senior secondary with a two‑year diploma or certificate course in ETE/JBT or B.E I.Ed. The candidates were required to have passed the secondary level with Hindi as a subject. The final selection was to be made after conducting an interview of qualified candidates. The Institute reserved its right to evaluate, review the process of selection, and shortlist candidates at any stage, and its decision would be final and binding. This discretionary power is notified under Clauses 14 and 19 of the vacancy circular., Clause 14 provides that the decision of the Institute in all matters regarding eligibility of the candidate, the stages at which such scrutiny of eligibility is to be undertaken, the documents to be produced for the purpose of conduct of interview, selection and any other matter relating to recruitment will be final and binding on the candidate. Further, the Institute reserves the right to stall or cancel the recruitment partially or fully at any stage during the recruitment process at its discretion, which will be final and binding on the candidate. Clause 19 states that fulfilment of conditions of minimum qualification shall not necessarily entitle any applicant to be called for further process of recruitment; in case of a large number of applications, the Institute reserves the right to shortlist applications in any manner as may be considered appropriate and no reason for rejection shall be communicated and no claim for refund of fee shall be entertained., On 27 April 2016, the Institute deviated from the procedure prescribed in the original advertisement and issued a notification dispensing with the interview requirement, which was a part of the selection process for Group B and C posts. Instead, it prescribed allocation of additional marks for essential qualifications, additional qualifications, essential experience, and the written test., The issue arising for consideration relates to the allocation of marks for additional qualifications, for which ten marks had been prescribed. The break‑up of the ten allocable marks is as follows: (a) Post Graduate Diploma – five marks; (b) Post Graduate Degree – six marks; (c) MPhil or Professional Qualification in the Field – seven marks; (d) PhD – ten marks., It is evident that a candidate possessing a Post Graduate Diploma and a Post Graduate Degree would be entitled to allocation of five and six marks respectively for their additional qualification. A person possessing an MPhil degree or a professional qualification in the field would be entitled to allocation of seven marks for the additional qualification., When the results were declared on 22 May 2017, the appellant obtained an aggregate of 57.5 marks, and respondent No. 3 obtained 58.25 marks. The appellant learned that the marks of respondent No. 3 included the seven marks for the professional qualification of Masters in Education (M.Ed.). The appellant has no complaint against the allocation of those seven marks to respondent No. 3. He was, however, surprised by the denial of six marks for the additional qualification of the Post Graduate Degree that he held, on the ground that his PG Degree was not in the relevant subject., The appellant’s simple case is that had he been allocated six marks for the PG Degree he possessed, he would have been the highest in the list with a total of 63.5 marks. He contends that the denial of six marks on the new ground that the PG Degree is not in the relevant subject is illegal and arbitrary. He made a representation on 26 May 2017 for allocation of the six marks. Due to inaction, he approached the Delhi High Court by way of a writ of mandamus to the Union and the Institute to remedy the injustice., The learned Single Judge of the Delhi High Court refused to interfere, following the principle laid down in the judgment of this Court in University Grants Commission v. Neha Anil Bobde (Gadekar), where it was held that in academic matters the qualifying criteria must be left to the discretion of the concerned institution. The appellant then preferred a writ appeal, and the Division Bench also followed the principle in Neha Anil Bobde, as reiterated in other decisions, and held that in academic matters the interference of the Court should be minimal. In paragraph 13 of its judgment, the High Court also relied on Clauses 14 and 19 of the vacancy circular to hold that the Institute in any event reserves the right to shortlist applications as it considers appropriate. Thus, the appellant approached this Court in 2019., At the outset, we note that the procedure for selection was provided in the vacancy circular issued in March 2016. Instead of following the said procedure, the Institute chose to adopt a new method by its notification dated 27 April 2016, wherein it dispensed with the interview and prescribed the allocation of marks for additional qualifications. We make it clear at this stage that the appellant has not challenged the variation in the original selection process of an interview and its replacement with allocation of marks for additional qualifications. The only challenge is that the denial of six marks for the additional qualification of a PG Degree that he possesses is illegal and arbitrary. The respondents raised the standard defence by invoking Clauses 14 and 19 to submit that they have reserved the right of shortlisting candidates as they consider appropriate. They also submit that the appellant cannot be given the benefit of six marks for additional qualifications as he did not possess the PG Degree in the relevant subject., Analysis: The standard argument made consistently and successfully before the Single Judge and Division Bench must fail before us. Clauses 14 and 19 of the vacancy circular do nothing more than reserve flexibility in the selection process. They cannot be read to invest the Institute with unbridled discretion to pick and choose candidates by supplying new criteria to the prescribed qualification. This is a classic case of arbitrary action. The submission based on Clauses 14 and 19 must fail here and now., The other submission of the respondent that a PG Degree must be in a relevant subject must also be rejected. The illegality in adopting and applying such an interpretation is evident from a simple reading of the notification dated 27 April 2016 providing for additional qualifications. The additional qualifications under clauses a to d are in two categories. While a, b, and d relating to PG Diploma, PG Degree, and PhD are general qualifications providing for five, six, and ten marks respectively, the category under c relates to Professional Qualification in the field, where specialization is prescribed. If we add the requirement of specialization to category b, i.e., PG Degree, then that category becomes redundant. The purpose of providing PG Degree independently and allocating a lesser quantum of six marks would be completely lost. No further analysis is necessary. We reject this submission also., The Single Judge as well as the Division Bench did not really analyse the prescription of additional qualifications and the distinct marks allocated to each of them, but confined their decision to restraint in judicial review and dismissed the appellant’s prayer. When a citizen alleges arbitrariness in executive action, the High Court must examine the issue, of course, within the context of judicial restraint in academic matters. While respecting flexibility in executive functioning, courts must not let arbitrary action pass through. For the reasons stated above, we are of the opinion that the decisions of the Single Judge and the Division Bench are not sustainable, and we hereby set aside their judgments., The story does not end here., While reserving the judgment, we directed the respondents to file an additional affidavit with respect to the availability of a vacant position. Respondents 1 and 2 have filed an affidavit. Paragraph 3 of the affidavit states: “I state that the applications were invited to fill up the vacancy for Primary School Teacher at the Model Integrated Primary School (hereinafter the School) which was run by Respondent No. 2 Institute. The petitioner and the respondent had applied in the SC category for which there was a single post. The School was closed on 01 April 2023 with the approval of the 128th Standing Committee held on 13 May 2022 and the 49th General Council held on 26 May 2022. I further state that Respondent No. 3 who was selected in pursuance of the aforementioned application had joined the post of Primary Teacher on 02 April 2018 and has since resigned on 24 October 2019.” Paragraph 4 of the affidavit reads: “I therefore state that on account of the closure of the School, there is no vacancy in the post of Primary Teacher to which the petitioner and Respondent No. 3 had applied and which is the subject matter of the Special Leave Petition.” The letter dated 13/14 December 2023 of the Pt. Deendayal Upadhyay National Institute for Persons with Physical Disabilities (Divyangjan) to the Ministry of Law and Justice is also annexed herewith for reference as Annexure 16. It is evident that the school for which the advertisement was issued was closed on 01 April 2023. In view of the closure of the school, we cannot direct the Institute to employ the appellant as a primary school teacher., This is an unfortunate situation where the Supreme Court of India finds that the action of the respondent was arbitrary, but the consequential remedy cannot be given due to subsequent developments. One stark reality of the situation is the time that has passed between the order of 2018 impugned herein and the judgment that we pronounce in 2024., Judicial review of administrative action in public law is qualitatively distinct from judicial remedies in civil law. In judicial review, constitutional courts are concerned with the exercise of power by the State and its instrumentalities., Within the realm of judicial review in common law jurisdictions, it is established that constitutional courts are entrusted with the responsibility of ensuring the lawfulness of executive decisions, rather than substituting their own judgment to decide the rights of the parties, which they would exercise in civil jurisdiction. It has been held that the primary purpose of quashing any action is to preserve order in the legal system by preventing excess and abuse of power or to set aside arbitrary actions. Wade on Administrative Law states that the purpose of quashing is not the final determination of private rights, for a private party must separately contest his own rights before the administrative authority. Such private party is also not entitled to compensation merely because the administrative action is illegal. A further case of tort, misfeasance, negligence, or breach of statutory duty must be established for such person to receive compensation., We are of the opinion that while the primary duty of constitutional courts remains the control of power, including setting aside administrative actions that may be illegal or arbitrary, it must be acknowledged that such measures may not singularly address the repercussions of abuse of power. It is equally incumbent upon the courts, as a secondary measure, to address the injurious consequences arising from arbitrary and illegal actions. This concomitant duty to take reasonable measures to restitute the injured is our overarching constitutional purpose., In public law proceedings, when it is realised that the prayer in the writ petition is unattainable due to passage of time, constitutional courts may not dismiss the writ proceedings on the ground of their perceived futility. In the life of litigation, passage of time can stand both as an ally and an adversary. Our duty is to transcend the constraints of time and perform the primary duty of a constitutional court to control and regulate the exercise of power or arbitrary action. By taking the first step, the primary purpose and object of public law proceedings will be subserved., The second step relates to restitution. This operates in a different dimension. Identification and application of appropriate remedial measures poses a significant challenge to constitutional courts, largely attributable to the dual variables of time and limited resources., The temporal gap between the impugned illegal or arbitrary action and its subsequent adjudication by the courts introduces complexities in the provision of restitution. As time elapses, the status of persons, possession, and promises undergoes transformation, directly influencing the nature of relief that may be formulated and granted., The inherent difficulty in bridging the time gap between the illegal impugned action and restitution is certainly not rooted in deficiencies within the law or legal jurisprudence but rather in systemic issues inherent in the adversarial judicial process. The protracted timeline spanning from the filing of a writ petition, service of notice, filing of counter‑affidavits, final hearing, and then the eventual delivery of judgment, coupled with subsequent appellate procedures, exacerbates delays. For example, in this case the writ petition was filed against the action of the respondent denying appointment on 22 May 2017. The writ petition was decided by the Single Judge on 24 January 2018, the Division Bench on 16 October 2018, and the case was carried to this Court in 2019; we are deciding it in 2024. The delay in this case is not unusual; we see several such cases when our final hearing board moves. Appeals of more than two decades are awaiting consideration. It is distressing but certainly not beyond us. We must and we will find a solution to this problem., It is in this reality and prevailing circumstance that we must formulate an appropriate system for preserving the rights of the parties till the final determination takes place. In the alternative, we may also formulate a reasonable equivalent for restitution of the wrongful action., Returning to the facts of the present case, in exercise of our primary duty we have set aside the action of the respondents as being illegal and arbitrary. In furtherance of our duty to provide a reasonable measure for restitution, we explored the possibility of directing the Institute to appoint the appellant as a primary teacher in any other school run by them. However, it appears that the only primary school run by the Institute is the one for which they sought to fill vacancies and it has been closed since 2023. In this situation, we must consider an alternative restitutory measure in the form of monetary compensation., We appreciate the spirit of the appellant who has steadfastly contested his case like the legendary Vikram from the year 2017 when he was illegally denied the appointment by the executive order dated 22 May 2017, which we have set aside as being illegal and arbitrary. In these circumstances, we direct the Institute (Respondent No. 2) to pay an amount of Rs 1,00,000 as compensation. This amount shall be paid to the appellant within a period of six weeks from the date of passing of this order., For the reasons stated above, we allow the appeal and set aside the judgment of the Delhi High Court in Writ Petition (Civil) No. 5279 of 2017 and Civil Miscellaneous No. 22382 of 2017 dated 24 January 2018 and in Legal Practitioners’ Act No. 158 of 2018 dated 16 October 2018 and direct the Institute (Respondent No. 2) to pay Rs 1,00,000 as compensation with costs quantified at Rs 25,000. [Pamidighantam Sri Narasimha] [Sandeep Mehta] New Delhi, 20 February 2024. Against Betala, in the famous Vetalapancavimsati, the original being the Kathasaritsagara work of the 11th Century by Somadeva.
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Arising out of Special Leave Petition (Criminal) No. 863 of 2019, leave was granted. The impugned judgment by the High Court of Judicature at Madras affirms the conviction of the appellant Perumal Raja alias Perumal for murder of Rajini alias Rajinikanth under Section 302 of the Indian Penal Code, 1860 and Section 201 of the Indian Penal Code, by the Principal Sessions Judge, Puducherry in Special Court No. 22 of 2014, in the charge sheet arising from the First Information Report No. 80 of 2008 dated 31.08.2016 passed in Criminal Appeal No. 280/2016., The appellant Perumal Raja alias Perumal was sentenced to imprisonment for life and a fine of Rs.5,000 for the offence under Section 302 of the Indian Penal Code and rigorous imprisonment for three years and a fine of Rs.3,000 for the offence under Section 201 of the Indian Penal Code., The other co‑accused, namely Saravanan alias Krishnan, Mohan alias Mohankumar, and Ravi alias Ravichandra, were acquitted by the trial court, and that acquittal has become final. One accused was tried as a juvenile and acquitted. On 15.02.2013, the case of another co‑accused Chella alias Mugundhan was split up because he was absconding. Subsequently, by judgment dated 04.06.2019, placed on record as additional evidence, Chella alias Mukundhan was acquitted., The prosecution case in brief is as follows: On 20.04.2008, Rajaram, who was settled in France, returned to Puducherry as his son Rajini alias Rajinikanth, who was living in India, had gone missing. On the same day, Rajaram approached the Police Station Odiansalai, Puducherry, and made an oral complaint stating that when he opened his house No. 13, Chinna Vaikkal Street, Puducherry, he found articles scattered all over the place and his motorcycle was missing. He suspected that his son Rajini alias Rajinikanth and his sister's husband Krishnamurthy could have taken the bike. He requested the police to make inquiries but did not lodge a written complaint, stating he was exhausted and would return later. On the next day, 21.04.2008, Rajaram was murdered. First Information Report No. 204 of 2008 was registered at Police Station Grand Bazaar, District Puducherry under Sections 147, 148, 341 and 302 of the Indian Penal Code read with Section 149 of the Indian Penal Code. On 24.04.2008, Arumugam, father of Rajaram, made a written complaint at Odiansalai Police Station that his grandson Rajini alias Rajinikanth was missing; the complaint was registered as Diary No. 80 of 2008 for a missing person and was taken up for investigation. The appellant Perumal Raja alias Perumal, son of Krishnamurthy (husband of the sister of Rajaram), was detained and taken into custody during the investigation of FIR No. 204 of 2008 for the murder of Rajaram. On 25.04.2008, the appellant Perumal Raja alias Perumal made a disclosure statement (Exhibit P‑37). The appellant, along with other co‑accused, had committed murder of Rajini alias Rajinikanth on 23.11.2007 at Rajaram's house at Chinna Vaikkal Street, Puducherry, and the dead body was thrown in the sump tank located in the same house. The appellant also removed various belongings from the same house, including an iron box, home theatre, CD player, house documents, motorcycle, registration certificate, key, Rajini's passport, passport‑size photograph, birth registration of the grandmother, ration card, etc., Later, the appellant Perumal Raja alias Perumal and other co‑accused decided to remove the dead body of Rajini alias Rajinikanth from the sump tank after learning that Rajaram was returning to India as his son Rajini alias Rajinikanth was missing. Accordingly, the appellant bought a knife and sack bags, opened the sump tank, and removed Rajini's decomposed body. They cut the body into two pieces and placed them in two sack bags; the knife and rope were placed in another sack bag. The three sack bags were taken from Chinna Vaikkal Street, passed through Gandhi Street, and thrown into the canal/river from the Uppanaru Bridge near the railway crossing. Based on the disclosure statement, the sack bags with the decomposed body were recovered on 26.04.2008 from the Uppanaru canal/river, and the knife was also recovered. The body parts, which were in a decomposed state, were sent for post‑mortem, conducted by Dr. S. Diwakar, Senior Medical Officer, Department of Forensic Medicine, Government General Hospital, Puducherry, on 26.04.2008. On 30.04.2008, eight articles were recovered from the water sump tank at the house of the deceased, namely gloves, lower jaw, rib, cervical vertebrae, tarsal and metatarsal, small and large bone pieces, and knee cap. The skull recovered from the canal/river and the lower part of the jaw recovered from the sump tank were sent for superimposition test to ascertain whether they belonged to the deceased Rajini alias Rajinikanth. C. Pushparani, Scientific Assistant Grade II, Anthropology Division, Forensic Sciences Department, Chennai, who deposed as PW‑29, provided the superimposition test report dated 20.01.2009 (Exhibit P‑25), confirming that the skull and mandible were of the deceased Rajini alias Rajinikanth. On the basis of the disclosure statement, various articles, including the motorcycle, ignition key, and original registration certificate, were recovered from co‑accused Mohan Kumar alias Mohan and a juvenile. The motive for the crime was inter‑se family property disputes and the appellant Perumal Raja alias Perumal's desire to acquire and become owner of the property No. 13, Chinna Vaikkal Street, Puducherry., Several public witnesses turned hostile and did not support the prosecution case. This includes Arumugam (PW‑20), the grandfather of the deceased Rajini alias Rajinikanth, who had filed the missing person complaint. However, Arumugam accepted that his son Rajaram, who was living abroad, had come home when he was murdered on 21.04.2008, and that his grandson Rajini alias Rajinikanth had not attended the cremation rites of his father Rajaram and was missing., Narayanasamy (PW‑12), then head constable, Police Station Odiansalai, testified that he received the oral complaint of Rajaram on 20.04.2008 regarding the scattered articles in his house and the missing motorcycle. Rajaram had assumed that his son Rajini alias Rajinikanth could have taken it away., Kaniyakumaran (PW‑10), involved in real estate business, did not specifically implicate the appellant Perumal Raja alias Perumal, but accepted that Punitha (PW‑3), a relative of the deceased Rajini alias Rajinikanth, had tried to sell the property in Kurumba pet. Documentary evidence shows that the property in question, in the name of Rajaram, was dealt with by Porkilai (PW‑4), mother of the appellant Perumal Raja alias Perumal. The following documents are relied upon: sale deed in favour of Rajaram executed on 26.06.1990 (Exhibit P‑66); sale agreement between Porkilai (PW‑4) and accused No.5 – Ravi alias Ravichandran executed in May 2007 (Exhibit P‑66); release deed in favour of Rajaram by Porkilai (PW‑4) executed on 27.06.1990 (Exhibit P‑68); sale agreement in favour of Thangaveni Ammal, mother of Rajaram, executed on 19.08.1981 (Exhibit P‑69)., Chinta Kodanda Rao (PW‑30), Inspector of Police, Police Station Grand Bazaar, the investigating officer in First Information Report No. 204 of 2008 relating to the murder of Rajaram by unknown persons, testified on the disclosure statement made by the appellant Perumal Raja alias Perumal (Exhibit P‑37). The relevant portion of the disclosure statement reads: 'myself and xxx pull Rajni's xxx, put him in the sump tank near the bathroom and closed it took xxx, Iron box, Home theatre, xxx, xxx, rental documents of my uncle's house at Chittankudi, Hero Honda CD Dawn motorcycle, RC book and key, Rajini's passport book, Rajini's passport size photo, birth registration of grandmother, family ration card of uncle and the copy of documents written in English, bunch of keys of the house and my uncle Ranjith's notebook, xxx xxx xxx, took Hero Honda CD Dawn motorbike of my uncle Rajaram one bag was put by Mohan xxx xxx xxx the house of Mohan nearby to the Tollgate of Ariyankuppam, kept 2 bags in Mohan's house I, immediately, went to N (name withheld) house and gave him document, ration card, bunch of keys, Rajini's passport, by keeping them in Ranjith notebook and stated to keep them safe I took the already kept 3 sack bags, rope, curry knife, showed the sump tank to xxx. When he opened the cover of the sump tank, he bend down and lifted the hand of the body of Rajini, who was already killed and put in the sump by us, since Rajini's body was in decomposed stage, his hand had alone come. I put the hand in sack bag. Then we tied rope in chest, myself and xxx pulled the body outside from sump. Then, head has come alone. I put head in the sack bag. Then xxx took knife from me and cut Rajini's body into two pieces and put them in two sack bags, then put knife and xxx in another sack bag and kept the sack bags near kitchen, then xxx closed the sump via Chinnavaikal Street and Gandhi Street, turned on the left side of the street, in front of small clock tower, via Varnarapettai Billu Shop, on the centre of the bridge of Railway Crossing on the left side, threw the two bags, containing the decomposed body of Rajini, on the right side threw the sack bag, containing knife and xxx. Also, I gave statement that if I was taken, I would identify the Chinnavaikal street, which is the place of occurrence, my maternal uncle's house which is in the same street the place where I had left the motor cycle of my (nc) and the place where I had put the body of Rajini.', On the aspect of the recovery of two nylon sack bags with body parts, we have affirmative depositions of Chinta Kodanda Rao (PW‑30), Inspector of Police, Police Station Grand Bazaar, public witness Devadass (PW‑21) and Satyamurthy (PW‑11). The recovery was photographed by Selvaganapathy (PW‑26), police photographer, vide photographs marked Exhibit P‑19. The recovery was duly recorded in the rough sketch plan (Exhibit P‑30) and the mahazar (Exhibit P‑31)., On 29.04.2008, accused No.4 – Mohan Kumar alias Mohan was arrested. On the same day, stolen items including the motorcycle and ignition key of the motorcycle, original registration book, insurance certificate of the motorcycle, iron box, home theatre and speaker box belonging to the deceased were recovered, as recorded vide seizure mahazar (Exhibits P‑44, P‑45, P‑46 and P‑47)., On 30.04.2008, eight articles were recovered from the water sump tank at the house of the deceased, namely gloves, lower jaw, rib, cervical vertebrae, tarsal and metatarsal, small and large bone pieces, and knee cap. T. Bairavasamy (PW‑32), Circle Inspector, Police Station Odiansalai, deposed about the recovery and proved the mahazar (Exhibit P‑48). The recovery was photographed by Subburayan (PW‑25), police photographer, vide photographs marked Exhibit P‑18 and duly witnessed by public witness Devadass (PW‑21)., To determine the identity of the deceased person, some of the body parts were sent for a superimposition test to C. Pushparani (PW‑29), Scientific Assistant Grade II, Anthropology Division, Forensic Sciences Department, Chennai. She deposed about having received the case properties, consisting of a skull with mandible, on 10.09.2008. The mandible was attached to the skull by means of a spring. For identification, she received two identical colour photographs of a male individual in sealed envelopes as Item Nos. 2 and 3. The photographs were enlarged to the size of a self‑portrait. Using computer‑aided video superimposition technique, she examined the skull and mandible against the photographs. The flesh thickness and anthroposcopic landmarks in the face were also considered. She opined that the landmarks on the face matched well with those of the skull. She submitted her forensic report dated 20.01.2009 with analysis on the anthroposcopy and superimposition test (Exhibit P‑25). The skull, as per her, belonged to the male individual seen in photograph serial no.4. With the report, Exhibit P‑25, she enclosed the computer laser printouts taken at the time of examination to establish that the photographs of deceased Rajini alias Rajinikanth match with the mandible and the skull (Exhibits P‑26 to P‑28). We have carefully examined the computer laser printouts and are of the opinion that the findings of the Madras High Court affirming the judgment of the trial court are justified., On behalf of the appellant Perumal Raja alias Perumal, it is submitted that as per Dr. S. Diwakar (PW‑24), Senior Medical Officer, Department of Forensic Medicine, Government General Hospital, Puducherry, no definite cause of death could be ascertained due to decomposition of the body. However, Dr. Diwakar also deposed that the deceased could be between 25‑30 years of age and probable death could have occurred six months prior to the autopsy. It must be further noted that the deceased Rajini alias Rajinikanth was about 30 years of age and had been missing for about six months prior to the date on which the autopsy was conducted., It has been submitted with considerable emphasis that Dr. Diwakar accepted that the lower jaw (mandible) was not found. Whereas, deposition of C. Pushparani and the photo superimposition done by her specifically refer to the lower jaw. Dr. Diwakar, in his examination‑in‑chief, testified that the police had sent the skull, sternum and right femur which were preserved by him from the autopsy material. He also stated that the lower jaw and the left lower first premolar tooth were preserved by him from the skeletal remains for onward transmission to Central Forensic Science Laboratory, Hyderabad, for necessary photo superimposition and DNA test through the Judicial Magistrate‑II, Puducherry. The mahazar dated 21.5.2008 (Exhibit P‑15) was prepared after collecting the aforesaid body parts., We do not find that any confusion or doubt arises from the deposition of Dr. Diwakar. He had conducted the post‑mortem examination (Exhibit P‑16) on 26.04.2008, wherein he examined the remains/body parts of the deceased which were found in the two nylon sack bags on the same day. Other body parts including the lower part of the skull i.e. the mandible and the tooth were found subsequently in the sump tank on 30.04.2008. Therefore, in his deposition, while referring to Exhibit P‑17 dated 19.05.2008, he referred to the lower jaw (mandible) and the left lower first premolar tooth, to send the said body parts to the Central Forensic Science Laboratory at Hyderabad., It has been submitted on behalf of the appellant that Dr. Diwakar, in his cross‑examination, has accepted that body parts were sent to him in two nylon sack bags only once, and nothing was sent thereafter. The post‑mortem was completed on 26.04.2008, vide the post‑mortem report (Exhibit P‑16) of the same date., Dr. Diwakar had issued a bone‑case certificate (Exhibit P‑17) on 19.05.2008. He clarified that while he did not mention the lower jaw in the post‑mortem report of 26.04.2008, he had mentioned that the lower jaw was preserved in the bone‑case certificate dated 19.05.2008. The recovery of the lower jaw from the sump took place on 30.04.2008; thus, it could not have been mentioned in the post‑mortem report dated 26.04.2008. This deposition is to be read with the testimony of T. Bairavasamy (PW‑32), Circle Inspector, Police Station Odiansalai, who deposed that he had taken the letter written by Dr. Diwakar and had obtained the signatures of Judicial Magistrate‑II, Puducherry for conducting DNA test. Thereafter, the material objects were sent through Form 95 No. 02876 (Exhibit P‑60) to the Judicial Magistrate‑II, Puducherry. The skull and the mandible were sent for photo superimposition test after addressing a letter to Judicial Magistrate‑II, Puducherry which was signed by Dr. Diwakar (Exhibit P‑61)., The prosecution's case, in the absence of eye witnesses, is based upon circumstantial evidence. As per Section 25 of the Indian Evidence Act, 1872, a confession made to a police officer is prohibited and cannot be admitted in evidence. Section 26 of the Evidence Act provides that no confession made by any person whilst he is in the custody of a police officer shall be proved against such person, unless it is made in the immediate presence of a magistrate. Section 279 of the Evidence Act is an exception to Sections 25 and 26. It makes that part of the statement which distinctly leads to discovery of a fact in consequence of the information received from a person accused of an offence, to the extent it distinctly relates to the fact thereby discovered, admissible in evidence against the accused. The fact which is discovered as a consequence of the information given is admissible in evidence. Further, the fact discovered must lead to recovery of a physical object and only that information which distinctly relates to that discovery can be proved. Section 27 of the Evidence Act is based on the doctrine of confirmation by subsequent events; a fact is actually discovered in consequence of the information given, which results in recovery of a physical object. The facts discovered and the recovery is an assurance that the information given by a person accused of the offence can be relied upon., In Pulukuri Kottaya v. King Emperor, the Privy Council held that the fact discovered embraces the place from which the physical object is produced and the knowledge of the accused as to this, and the information given, must distinctly relate to this fact., In State (NCT of Delhi) v. Navjot Sandhu alias Afsan Guru, this Court affirmed that the fact discovered within the meaning of Section 27 of the Evidence Act must be some concrete fact to which the information directly relates. Further, the fact discovered should refer to a material/physical object and not to a pure mental fact relating to a physical object disassociated from the recovery of the physical object., However, we must clarify that Section 27 of the Evidence Act, as held in these judgments, does not lay down the principle that discovery of a fact is to be equated to the object produced or found. The discovery of the fact resulting in recovery of a physical object exhibits knowledge or mental awareness of the person accused of the offence as to the existence of the physical object at the particular place. Accordingly, discovery of a fact includes the object found, the place from which it was produced and the knowledge of the accused as to its existence. To this extent, therefore, factum of discovery combines both the physical object as well as the mental consciousness of the informant accused in relation thereto. In Mohmed Inayatullah v. State of Maharashtra, elucidating on Section 27 of the Evidence Act, it has been held that the first condition imposed and necessary for bringing the section into operation is the discovery of a fact which should be a relevant fact in consequence of information received from a person accused of an offence. The second is that the discovery of such a fact must be deposed to. A fact already known to the police will fall foul and not meet this condition. The third is that at the time of receipt of the information, the accused must be in police custody. Lastly, it is only so much of information which relates distinctly to the fact thereby discovered resulting in recovery of a physical object which is admissible. Rest of the information is to be excluded. The word distinctly is used to limit and define the scope of the information and means directly, indubitably, strictly or unmistakably. Only that part of the information which is clear, immediate and a proximate cause of discovery is admissible., The facts proved by the prosecution, particularly the admissible portion of the statement of the accused, would give rise to two alternative hypotheses, namely, (i) that the accused had himself deposited the physical items which were recovered; or (ii) only the accused knew that the physical items were lying at that place. The second hypothesis is wholly compatible with the innocence of the accused, whereas the first would be a factor to show involvement of the accused in the offence. The court has to analyse which of the hypotheses should be accepted in a particular case., Section 27 of the Evidence Act is frequently used by the police, and the courts must be vigilant about its application to ensure credibility of evidence, as the provision is vulnerable to abuse. However, this does not mean that in every case invocation of Section 27 of the Evidence Act must be seen with suspicion and is to be discarded as perfunctory and unworthy of credence., The pre‑requisite of police custody, within the meaning of Section 27 of the Evidence Act, ought to be read pragmatically and not formalistically or euphemistically. In the present case, the disclosure statement (Exhibit P‑37) was made by the appellant Perumal Raja alias Perumal on 25.04.2008, when he was detained in another case, namely, First Information Report No. 204/2008, registered at Police Station Grand Bazaar, Puducherry, relating to the murder of Rajaram. He was subsequently arrested in this case, that is FIR No.80/2008, which was registered at Police Station Odiansalai, Puducherry. The expression custody under Section 27 of the Evidence Act does not mean formal custody. It includes any kind of restriction, restraint or even surveillance by the police. Even if the accused was not formally arrested at the time of giving information, the accused ought to be deemed, for all practical purposes, in the custody of the police., Reference is made to a recent decision of this Court in Rajesh & Anr. v. State of Madhya Pradesh, which held that formal accusation and formal police custody are essential pre‑requisites under Section 27 of the Evidence Act. In our opinion, we need not dilate on the legal proposition as we are bound by the law and ratio as laid down by the decision of a Constitution Bench of this Court in State of U.P. v. Deoman Upadhyaya. The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or co‑equal strength. This Court in Deoman Upadhyay observed that the bar under Section 25 of the Evidence Act applies equally whether or not the person against whom evidence is sought to be led in a criminal trial was in custody at the time of making the confession. Further, for the ban to be effective the person need not have been accused of an offence when he made the confession. The reason is that the expression accused person in Section 24 and the expression a person accused of any offence in Sections 26 and 27 have the same connotation, and describe the person against whom evidence is sought to be led in a criminal proceeding., Elaborating on this aspect, a three‑judge Bench of this Court in Aghnoo Nagesia v. State of Bihar has held that if the FIR is given by the accused to a police officer and amounts to a confessional statement, proof of the confession is prohibited by Section 25 of the Evidence Act. The confession includes not only the admission of the offence but all other admissions of incriminating facts related to the offence, except to the extent that the ban is lifted by Section 27 of the Evidence Act. While dealing with the admission of part of confession report dealing with motive, subsequent conduct and opportunity, this Court rejected the severability test adopted by some High Courts. The statement can, however, be relied upon and admitted to identify the accused as the maker, and the portion within the purview of Section 27 of the Evidence Act is admissible. Aghnoo Nagesia has been applied and followed by this Court in Khatri Hemraj Amulakh v. State of Gujarat., The words person accused of an offence and the words in the custody of a police officer in Section 27 of the Evidence Act are separated by a comma. Thus, they have to be read distinctively. The wide and pragmatic interpretation of the term police custody is supported by the fact that if a narrow or technical view is taken, it will be very easy for the police to delay the time of filing the FIR and arrest, and thereby evade the contours of Sections 25 to 27 of the Evidence Act. Thus, in our considered view the correct interpretation would be that as soon as an accused or suspected person comes into the hands of a police officer, he is no longer at liberty and is under a check, and is therefore in custody within the meaning of Sections 25 to 27 of the Evidence Act. It is for this reason that the expression custody has been held, as earlier observed, to include surveillance, restriction or restraint by the police., This Court in Deoman Upadhyay, while rejecting the argument that the distinction between persons in custody and persons not in custody violates Article 14 of the Constitution of India, observed that the distinction is a mere theoretical possibility.
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Sections 25 and 26 were enacted not because the law presumed the statements to be untrue, but having regard to the tainted nature of the source of the evidence, prohibited them from being received in evidence. A person giving word of mouth information to police, which may be used as evidence against him, may be deemed to have submitted himself to the custody of the police officer. Reference can also be made to the decision of the Supreme Court of India in Vikram Singh and Ors. v. State of Punjab, which discusses and applies Deoman Upadhyay (supra), to hold that formal arrest is not a necessity for operation of Section 27 of the Evidence Act. The Supreme Court of India in Dharam Deo Yadav v. State of Uttar Pradesh has held that the expression custody in Section 27 of the Evidence Act does not mean formal custody, but includes any kind of surveillance, restriction or restraint by the police. Even if the accused was not formally arrested at the time of giving information, the accused is, for all practical purposes, in the custody of the police and the bar vide Sections 25 and 26 of the Evidence Act, and accordingly exception under Section 27 of the Evidence Act, apply. Reliance was placed on the decisions in State of A.P. v. Gangula Satya Murthy and A.N. Vekatesh and Anr. v. State of Karnataka., However, evidentiary value to be attached on evidence produced before the court in terms of Section 27 of the Evidence Act cannot be codified or put in a straightjacket formula. It depends upon the facts and circumstances of the case. A holistic and inferential appreciation of evidence is required to be adopted in a case of circumstantial evidence., When we turn to the facts of the present case, the body parts of the deceased Rajini @ Rajinikanth were recovered on the pointing out of appellant Perumal Raja @ Perumal in his disclosure statement. Rajini @ Rajinikanth had been missing for months and was untraceable. In the present case, as discussed above, the homicidal death of Rajini @ Rajinikanth, the disclosure statement marked Exhibit P‑37, and the consequent recovery as elucidated above have been proved beyond doubt and debate., In State of Maharashtra v. Suresh, the Supreme Court of India held that recovery of a dead body, which was from the place pointed out by the accused, was a formidable incriminating circumstance. The Court held that this would reveal that the dead body was concealed by the accused unless there is material and evidence to show that somebody else had concealed it and this fact came to the knowledge of the accused either because he had seen that person concealing the dead body or was told by someone else that the dead body was concealed at the said location. Here, if the accused declines and does not tell the Supreme Court of India that his knowledge of the concealment was on the basis of the possibilities that absolve him, the Court can presume that the dead body (or physical object, as the case may be) was concealed by the accused himself. This is because the person who can offer the explanation as to how he came to know of such concealment is the accused. If the accused chooses to refrain from telling the Court how else he came to know of it, the presumption is that the concealment was by the accused himself., The aforesaid view has been followed subsequently and reiterated in Harivadan Babubhai Patel v. State of Gujarat, Vasanta Sampat Dupare v. State of Maharashtra, State of Maharashtra v. Damu S/o Gopinath Shinde and Ors., and Rumi Bora Dutta v. State of Assam., Our reasoning, which places reliance on Section 106 of the Evidence Act, does not in any way dilute the burden of proof which is on the prosecution. Section 106 comes into play when the prosecution is able to establish the facts by way of circumstantial evidence. On this aspect we shall delve upon subsequently., Apart from Section 27 of the Evidence Act, Section 8 of the said Act would also be attracted insofar as the prosecution witnesses, namely, the investigating officers, Chinta Kodanda Rao (PW‑30), Inspector of Police, PS Grand Bazaar and T. Bairavasamy (PW‑32), Circle Inspector, PS Odiansalai, have referred to the conduct of the appellant Perumal Raja @ Perumal with regard to any fact in issue or a relevant fact when the appellant Perumal Raja @ Perumal was confronted and questioned. Reference in this regard may also be made to the judgment of the Supreme Court of India in Sandeep v. State of Uttar Pradesh which held that it is quite common that based on admissible portion of the statement of the accused whenever and wherever recoveries are made, the same are admissible in evidence and it is for the accused in those situations to explain to the satisfaction of the Court as to the nature of recoveries and as to how they came into possession or for planting the same at the places from where they were recovered., On the basis of the prosecution evidence, the following factual position has been established: Rajini @ Rajinikanth was missing for months before his father Rajaram came from France to India on 20 April 2008. On return, Rajaram had noticed that the articles in the property No.13, Chinna Vaikkal street, Puducherry, where deceased Rajini @ Rajinikanth used to reside and was owned by Rajaram, were scattered. The motorcycle owned by Rajaram, which the deceased Rajini @ Rajinikanth used, was missing. Rajaram was murdered on 21 April 2008. The appellant Perumal Raja @ Perumal is a close relative of Rajini @ Rajinikanth and Rajaram (son of sister of Rajaram). Rajaram as the owner of the immovable property No.13, Chinna Vaikkal street, Puducherry and Rajini @ Rajinikanth, as the son of Rajaram, were hindrance in the way of the appellant Perumal Raja @ Perumal acquiring the said property. There were also inter se family disputes relating to the property in Kurumbapet. This was the motive for the offence. On the basis of the disclosure statement made by the appellant Perumal Raja @ Perumal on 25 April 2008 (Exhibit P‑37) two nylon sack bags were recovered containing decomposed human body parts; and human bones were also recovered from the sump tank in property bearing No.13, Chinna Vaikkal street, Puducherry. The superimposition report dated 20 January 2009 (Exhibit P‑25) by C. Pushparani (PW‑29), Scientific Assistant Grade II, Anthropology Division, Forensic Sciences Department, Chennai states that the skull and the mandible which were recovered from the river and the sump tank were that of the deceased Rajini @ Rajinikanth. The report relies on the computer laser print out of the skull and the mandible for comparison with the photograph of the deceased Rajini @ Rajinikanth. It is shown that the skull and the mandible were of the deceased Rajini @ Rajinikanth. As per the post mortem report (Exhibit P‑16), though the cause of death could not be ascertained due to decomposition of the body, the bones were that of a person between 25‑30 years of age. Further, the death had probably occurred six months prior to the autopsy. The deceased Rajini @ Rajinikanth was 30 years in age and he had been missing for about six months. Motorcycle bearing registration No. PY 01 X 9857 belonging to Rajaram (which was then at Rajaram’s house and in possession of Rajini @ Rajinikanth, as Rajaram was in France), keys, insurance papers, as well as other personal belongings were recovered from Mohan Kumar @ Mohan and a juvenile, whose name is withheld., In Sharad Birdhichand Sarda v. State of Maharashtra, the Supreme Court of India referred to Hanumant v. State of Madhya Pradesh, and laid down the five golden principles (panchsheel) that should be satisfied before a case based on circumstantial evidence against an accused can be said to be fully established: (i) the circumstances from which the conclusion of guilt is to be drawn should be fully established; (ii) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (iii) the circumstances should be of a conclusive nature and tendency; (iv) they should exclude every possible hypothesis except the one to be proved; and (v) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused., The Supreme Court of India in Sharad Birdhichand Sarda rejected the contention that if the defence case is false it would constitute an additional link to fortify the case of the prosecution. However, a word of caution was laid down to observe that a false explanation given can be used as a link when: (i) various links in the chain of evidence laid by the prosecution have been satisfactorily proved; (ii) circumstance points to the guilt of the accused with reasonable definiteness; and (iii) the circumstance is in proximity to the time and situation. If these conditions are fulfilled only then the Court can use the false explanation or a false defence as an additional link to lend an assurance to the Court and not otherwise. Thus, a distinction has to be drawn between incomplete chain of circumstances and a circumstance after a chain is complete and the defence or explanation given by the accused is found to be false, in which event the said falsehood is added to reinforce the conclusion of the Court., The Supreme Court of India in Deonandan Mishra v. State of Bihar has laid down the following principle regarding circumstantial evidence and the failure of accused to adduce any explanation: It is true that in a case of circumstantial evidence not only should the various links in the chain of evidence be clearly established, but the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused. But in a case like this where the various links as stated above have been satisfactorily made out and the circumstances point to the appellant as the probable assailant, with reasonable definiteness and in proximity to the deceased as regards time and situation, and he offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence, such absence of explanation or false explanation would itself be an additional link which completes the chain. We are, therefore, of the opinion that this is a case which satisfies the standards requisite for conviction on the basis of circumstantial evidence., The appellant Perumal Raja @ Perumal in his statement under Section 313 of the Code of Criminal Procedure, 1973 plainly denied all accusations without furnishing any explanation regarding his knowledge of the places from which the dead body was recovered. In this circumstance, the failure of the appellant Perumal Raja @ Perumal to present evidence on his behalf or to offer any cogent explanation regarding the recovery of the dead body by virtue of his special knowledge must lead to a reasonable adverse inference, by application of the principle under Section 106 of the Evidence Act, thus forming an additional link in the chain of circumstances. The additional link further affirms the conclusion of guilt as indicated by the prosecution evidence., The whereabouts of Rajini @ Rajinikanth were unknown. The perpetrator(s) were also unknown. It is only consequent to the disclosure statement by the appellant Perumal Raja @ Perumal that the police came to know that Rajini @ Rajinikanth had been murdered and his body was first dumped in the sump tank and after some months, it was retrieved, cut into two parts, put in sack bags, and thrown in the river/canal. The police, accordingly, proceeded on the leads and recovered the parts of the dead body from the sump tank and sack bags from the river/canal. It has also been established that Rajini @ Rajinikanth was murdered. In addition, there have been recoveries of the motorcycle and other belongings at the behest of the appellant Perumal Raja @ Perumal. These facts, in the absence of any other material to doubt them, establish an indubitable conclusion that the appellant Perumal Raja @ Perumal is guilty of having committed murder of Rajini @ Rajinikanth. The presence of motive reinforces the above conclusion., It has been contended before us that the appellant Perumal Raja @ Perumal had been acquitted in the case arising out of crime No. 204 of 2008 relating to the murder of Rajaram. The judgment passed by the trial court has been taken on record as additional evidence. However, we do not find this judgment in any way relevant or negating the prosecution evidence, which we have referred to and elucidated earlier in the prosecution case against the appellant, because the murder trial of Rajaram was primarily based upon an entirely different set of evidence. The evidence mentioned in the present case is not relevant and directly connected with the murder of Rajaram. The two occurrences are separate, albeit the appellant Perumal Raja @ Perumal was accused of the murder of Rajaram and his son Rajini @ Rajinikanth. The murders were committed on two different dates 23 November 2007 (or thereabout) and 21 April 2008 respectively, approximately five months apart. Except for the fact that the appellant Perumal Raja @ Perumal was taken into custody during the course of investigation in FIR No. 204 of 2008 for murder of Rajaram and thereafter on 25 April 2008 his disclosure statement (Exhibit P‑37) was recorded, there is no connection between the two offences. The conviction of the appellant is, therefore, sustainable in view of the evidence placed on record in the present case. The judgment of acquittal would not qualify as evidentiary value so as to acquit the appellant Perumal Raja @ Perumal in the present case., Acquittal of the co‑accused, as noticed in paragraph 4 above, again is for want of evidence against them. At best, they were found in possession of the articles connected with the crime on the basis of the disclosure statement (Exhibit P‑37) dated 25 April 2008 made by the appellant Perumal Raja @ Perumal. Section 27 of the Evidence Act could not have been applied to the other co‑accused for the simple reason that the provision pertains to information that distinctly relates to the discovery of a fact that was previously unknown, as opposed to fact already disclosed or known. Once information is given by an accused, the same information cannot be used, even if voluntarily made by a co‑accused who is in custody. Section 27 of the Evidence Act does apply to joint disclosures, but this is not one such case. This was precisely the reason given by the trial court to acquit the co‑accused. Even if Section 8 of the Evidence Act is to apply, it would not have been possible to convict the co‑accused. The trial court rightly held other co‑accused not guilty. For the same reason, acquittal of co‑accused Chella @ Mukundhan, who was earlier absconding, is also of no avail., As far as acquittal of the juvenile is concerned, reference can be made to the provisions of Sections 40 to 43 of the Evidence Act., In view of the above discussion, we have no difficulty in upholding the conviction of the appellant Perumal Raja @ Perumal. The appeal is dismissed.
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By way of the present petition filed under Section 482 of the Code of Criminal Procedure, 1973, quashing of FIR bearing number 519/2012, registered at Police Station Uttam Nagar, for offences punishable under Sections 498A, 406 and 34 of the Indian Penal Code, has been sought by the present petitioners., The marriage between the complainant, respondent No. 2, and co‑accused Lal was solemnised on 23 January 2011. It is stated that there was an irretrievable breakdown of the marriage due to incompatible behaviour, conduct and temperament of the parties. On the complaint of respondent No. 2 alleging physical and mental cruelty, demand for dowry and beating by her husband and in‑laws, the FIR was registered against the husband as well as the petitioners, namely the brother of the husband’s father, his son, and the elder brother of the husband., The matter was referred to the mediation centre at the time of hearing of the anticipatory bail application of the accused husband. The parties amicably settled the dispute before the mediation centre and reduced the settlement to writing by way of a mediated settlement agreement dated 30 July 2014., Subsequently, the police filed a chargesheet against all the accused persons and informed the learned Magistrate about the settlement and the quashment clause in the agreement. The petition to quash the FIR was filed by the husband, who alone had been summoned by the learned Magistrate, and the FIR was quashed against him before the summons could reach him. Consequently, the husband and his relatives were unaware that a chargesheet had been filed, as the summons were to reach the husband before 25 August 2015., The other relatives of the husband, i.e., the petitioners, were later summoned by the learned Magistrate. When they realised that they also needed the FIR quashed against them, another twist occurred after eight years: the complainant conveniently changed her position and appeared before the Delhi High Court, stating that she had entered into an agreement only with her husband and therefore the FIR could not be quashed, even though the entire settlement amount, including the amount for quashing the FIR, had been paid., The petitioners contend that complainant/respondent No. 2 has no grievance against the accused persons and is not willing to support the imputations made in the FIR because the dispute has already been settled by the mediated settlement agreement dated 30 July 2014, which was arrived at before the Mediation Centre, Tis Hazari Court, Delhi. They further state that the investigating officer did not give any notice under Section 160 of the Code of Criminal Procedure to the petitioners on the day of registration of the FIR, and that the earlier petition for quashing the FIR (CRL.M.C. 3069/2015) was filed only by the husband. Nevertheless, the settlement agreement explicitly mentions that the FIR shall be quashed against all accused persons, and therefore they pray that the FIR be quashed., The learned counsel for the complainant/respondent No. 2 argues that the mediated settlement agreement dated 30 July 2014 was only with the husband and that the FIR in respect of the husband has already been quashed. He points out that only the husband signed the settlement agreement and not the present petitioners. However, it is admitted that the FIR against the husband was quashed vide order dated 31 July 2015 and that respondent No. 2 has already received payment of Rs 2,75,000 towards full and final settlement of her claims, including dowry articles, stridhan, alimony, maintenance of past, present and future, and all other claims and rights as per the terms of the settlement agreement. The complainant, after issuance of court notice, appeared before the Delhi High Court and submitted that she had settled the case only with her husband, although she acknowledges receipt of the entire settlement amount, including Rs 65,000 received for quashing the FIR on 31 July 2015. She suggested that the matter may be sent for mediation again with the present accused persons and that she would settle the matter again, as the money was given by her husband., The Delhi High Court has heard the rival contentions raised on behalf of both parties and has perused the material on record., For proper adjudication of the present case, it is imperative to reproduce the mediated settlement agreement dated 30 July 2014, which reads as follows:, Present: Ms Neeru, complainant, along with Sh Anoop Kumar Sharma and Ms Gulshan Jahan, Advocates; Sh Lalit, applicant/respondent in person, along with Sh P.K. Anand, Advocate. The matter was referred by the court of Sh Mukesh Kumar Gupta, Learned Metropolitan Magistrate, ASJ‑02, Tis Hazari Courts, Delhi and assigned for mediation. Single and joint sessions were held. After discussions, both parties agreed to compromise their disputes in full and final on the following terms and conditions: (i) Both parties shall dissolve the marriage by filing a petition under Section 13(B)(1) and 13(B)(2) of the Hindu Marriage Act; (ii) The joint petition for dissolution of marriage shall be filed on or before 13 September 2014 and the second motion under Section 13(B)(2) shall be filed within one week after the expiry of the statutory period of six months; (iii) Respondent No. 1 shall make a payment of Rs 2,75,000 (Rupees Two Lakh Seventy‑Five Thousand only) to the complainant towards full and final settlement including dowry articles, stridhan, alimony/maintenance of past, present and future and all other claims and rights; (iv) The amount shall be paid in four installments: the first installment of Rs 70,000 on 13 August 2014 at the hearing of the case under Section 125 of the Code of Criminal Procedure before the Court of Sh Brijesh Sethi, Learned Principal Judge, Family Courts, Tis Hazari Courts, Delhi; the second installment of Rs 70,000 at the time of recording of statements under Section 13(B)(1) of the Hindu Marriage Act; the third installment of Rs 70,000 at the time of recording of statements under Section 13(B)(2) of the Hindu Marriage Act; (v) A petition shall be filed under Section 482 of the Code of Criminal Procedure by the respondents for quashing FIR No 519/12 under Sections 498A, 406 and 34 of the Indian Penal Code, and the complainant shall cooperate with the respondents, file her affidavit for the quashing of the FIR and make a statement in terms of the compromise before the Hon’ble High Court; (vi) The fourth and last installment of Rs 65,000 shall be paid by the respondent at the time of disposal of the petition under Section 482 of the Code of Criminal Procedure for the quashing of the FIR; (vii) The petition for quashing the FIR shall be filed by both parties within one month from the date of disposal of the petition under Section 13(B)(2) of the Hindu Marriage Act; (viii) The complainant shall withdraw the case under Section 125 of the Code of Criminal Procedure from the Court of Sh Brijesh Sethi after disposal of the petition under Section 13(B)(2) of the Hindu Marriage Act; (ix) The settlement is full and final; both parties undertake not to file any case, complaint, suit or petition against each other, shall lead their lives independently and shall not interfere in each other’s lives or those of their family members. The settlement was arrived at voluntarily, without any force, pressure or coercion, and the parties have understood and admitted the contents to be correct., A bare perusal of the mediated settlement agreement reveals that clause 5 expressly obliges the complainant to cooperate with the respondents and to file her affidavit for quashing the FIR, and to make a statement before this Court. Hence, the settlement was not limited to the husband alone; otherwise the term ‘respondents’ would not have been used. Clause 9 further confirms that the settlement is full and final and that both parties will not file any further proceedings against each other or interfere in each other’s lives or those of their family members., Although the settlement agreement was signed only by the husband, the contents indicate that it was intended to cover all co‑accused persons in the present FIR, who are his close family members., The judgment dated 27 March 2015, wherein divorce by mutual consent was granted to both parties, records in paragraph 5 that the complainant stated on oath that she had settled all her claims of past, present and future maintenance and that the final installment of Rs 65,000 would be paid at the time of final disposal of the petition under Section 482 of the Code of Criminal Procedure for quashing the FIR., The complainant subsequently appeared before the Delhi High Court for the purpose of quashing the FIR against the husband (CRL.M.C. 3069/2015). The FIR against the husband was quashed vide order dated 31 July 2015. The operative part of the order reads: ‘Respondent No. 2, present in the Court, submits that the dispute between the parties has been amicably resolved vide the aforesaid mediated settlement and that she has received the balance settled amount of Rs 65,000 by way of two demand drafts. Divorce by mutual consent has already been granted by the Family Court on 27 March 2015. Respondent No. 2 affirms the contents of the mediated settlement and her affidavit supporting this petition and submits that no dispute with the petitioner survives, and therefore the proceedings arising out of FIR No 519/2012 under Sections 498A, 406 and 34 of the Indian Penal Code registered at Police Station Uttam Nagar, Delhi are quashed against the petitioner.’, The matter was referred for mediation at the time of hearing of the anticipatory bail application of the husband when the other accused persons were not present before the Court. The husband, having compromised the matter with his wife, was admitted to anticipatory bail and filed petition Crl.M.C. No. 3069/2015 for quashing the FIR before the chargesheet was filed. Subsequently, the relatives of the husband were listed in column 11 of the chargesheet and were chargesheeted without arrest., Since the matter had already been settled, the learned Magistrate, upon filing of the chargesheet, took cognizance of the offence only against the husband and did not take cognizance of or issue summons to the rest of the family members. He noted that cognizance against the other accused persons would be taken only if the husband failed to file a quashing petition. The order dated 14 July 2015 reads: ‘The investigating officer states that the matter has been settled between the parties before the mediation centre on 30 July 2015. Considering the settlement, I take cognizance for the offence u/s 498A, 406 and 34 IPC against the accused/husband Lalit Raj only at this stage. Cognizance against the rest of the respondents will be considered if no step is taken by the accused for filing a quashing petition. Let summons to the accused Lalit Raj be issued through the investigating officer, returnable on 25 August 2015.’, After the FIR was quashed in relation to the husband by the Delhi High Court on 31 July 2015, the learned Magistrate issued a court notice to the other accused persons on 25 August 2015, stating that the FIR had already been quashed for Lalit Raj and that nothing remained to be adjudicated against him. The notice also requested summons to the remaining accused persons to be executed through the investigating officer for 28 September 2015., On 28 September 2015, the learned Magistrate summoned four accused persons, namely Rukmani, Chhatarpal, Vijay and Rajiv, noting that although the FIR had been quashed against Lalit Raj, specific allegations remained against the other accused persons, and therefore summons were required., It was only after the other accused persons were summoned that they realised the need to file a petition for quashing the FIR. Given their non‑legal backgrounds and the specific circumstances, the petitioners may have assumed that they did not have to file a quashing petition since they had not been earlier summoned., To summarise the timeline: at the time of hearing of the anticipatory bail application, the case was referred for mediation and settled. After the FIR was quashed in relation to the husband, the other family members were unaware that they could be summoned, leading to a prolonged litigation of nearly ten years despite the 2014 settlement., Although the complainant has already received the amount intended for quashing the FIR, the FIR was quashed only against the husband and not against the rest of the family members, even though clause 5 of the settlement agreement mentions ‘respondents’, indicating an intention to quash the entire FIR against all accused persons. The agreement also states that it is a full and final settlement of all past, present and future claims and that the parties will not interfere in each other’s lives, showing that the complainant was aware that the agreement was between herself and all respondents., The complainant, however, appeared before the Delhi High Court and asserted that the mediated settlement agreement dated 30 July 2014 was only between her and her husband, and that the monetary settlement was also only with the husband. She suggested that the matter could be sent for mediation again if the present petitioners also wanted the FIR to be quashed against them., The Delhi High Court considers this approach neither correct nor acceptable, as the complainant has already received the entire settlement amount, including the sum for quashing the FIR. Declaring that the settlement was solely between the wife and the husband would undermine the fundamental objective of mediation, which has already been achieved., The Court refers to the observations of the Supreme Court in Ruchi Agarwal v. Amit Kumar Agrawal (2005) 3 SCC 299, where the apex court held that when a compromise is effected and the appellant has received the relief sought, the criminal complaint should not be allowed to continue, as it would be an abuse of the process of the court., The Court also cites Purshotam Gupta v. State (Crl.M.C. 3230‑32/2006), wherein the Supreme Court quashed the FIR against the accused husband after the complainant wife had received the full settlement amount and had not appeared to contest the petition, observing that the criminal proceedings should be dismissed., A similar view was taken by this Court in Dalbir Singh v. State 2011 SCC OnLine Del 3528., The present petitioners have been victims of circumstances, first by failing to file quashing petitions when they were not summoned, and now by the complainant’s refusal to give her statement for quashing the FIR despite having received the full and final settlement amount., Upon careful analysis of the mediation process, it is evident that the negotiations and execution of the settlement agreement were conducted pursuant to a court‑referred mediation, with both parties represented by legal counsel, and the substance of the agreement reduced to writing. The complainant understood and acted upon the agreement, having filed for mutual consent divorce, withdrawn certain cases, and received all monetary amounts, including the sum for quashing the FIR, thereby indicating that the settlement was intended to cover all respondents., Considering the overall facts and circumstances, the Court holds that it would be gross injustice to the petitioners if the criminal proceedings arising out of the FIR against them were allowed to continue, when the complainant has already settled all matrimonial disputes, undertaken not to interfere in the lives of family members, and received the specific sum of Rs 65,000 for the purpose of quashing the FIR against the respondents.
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However, before parting with this case, the Delhi High Court notes that the dispute in question has arisen primarily due to an inadequately worded and ambiguous Mediated Settlement Agreement. In the process of mediation, the task of drafting an agreement at the culmination of long, arduous and challenging mediation proceedings carries significant responsibility. Each word included in the agreement holds importance for the parties involved. This is particularly crucial in cases involving criminal matters, as omission of even a single word can lead to severe legal ramifications and the interested parties can exploit such loopholes to their advantage, causing disadvantages to the opposing party., The primary objective of mediation in matrimonial cases is to facilitate early resolution of disputes outside the Delhi High Court. In India, matrimonial disputes often include criminal proceedings. In case of comprehensive settlement agreements between the parties, especially when law mandates mediation in cases of family and matrimonial disputes, a number of issues should be considered and the settlement agreements arrived at from successful mediation must be drafted with due care and caution, so that the very purpose of mediation is not defeated., In cases relating to matrimonial offences, at times, there are distant relatives, old parents, married sisters, etc., who are also involved and arraigned as accused, but they may not attend the mediation proceedings as the same generally will take place between the two key players i.e., the husband and wife. In such cases, the disputes are often settled on behalf of the entire family by the husband. The mediator while drafting an agreement must remember that the parties have come to an understanding and have reached a mediated settlement with willingness to resolve the disputes due to the skills of the mediator and help of family, friends, counsels etc., however, their own needs and protection of their interests remains paramount., In the present case, as already discussed at length, the complainant had settled all her matrimonial disputes and had received Rs. 2,75,000 towards full and final settlement of all her claims and had also agreed to cooperate in quashing of the First Information Report qua the respondents. However, ambiguity and lack of clarity in the Mediated Settlement Agreement was sought to be misused before the Delhi High Court by the complainant., Rather than merely writing in the Settlement Agreement that a petition for quashing would be filed by the respondents for quashing of the First Information Report, had the mediator specifically mentioned that the First Information Report as well as all proceedings emanating therefrom were to be quashed qua all the accused persons, along with their names, in that case, even if the learned Magistrate was to decide on issuance of summons to the accused persons, the said Agreement drafted by the Mediator would have come to the rescue of the present petitioners. In such a situation, the complainant would have been bound to cooperate even in those proceedings which emanated from the same First Information Report. In other words, the Mediated Settlement Agreement in the present case should have been more explicit, particularly in terms of clearly identifying and specifying the names of all the respondents referred to in the agreement., The Mediator should have ensured that all the persons against whom allegations had been levelled and were named in the First Information Report, quashing of which was agreed between the parties, their names and identities were clearly spelt out in the Settlement Agreement, rather than using the general term respondents., Therefore, as gathered by the Delhi High Court after going through entire records, lack of incorporation of specific names of the respondents, or persons named in the First Information Report, in the Settlement Agreement has put the parties concerned at disadvantage and has resulted in unwanted prolonging of criminal proceedings, which were already settled between them long back. The very purpose of resolving the dispute at the earliest has been successfully defeated in the present case despite a successful mediation due to a carelessly worded Mediated Settlement Agreement., There is no denying the fact that each case that reaches mediation and successfully culminates into a settlement is based on its own circumstances and dynamics., To put it differently, an inadequately drafted agreement will be the one which fails to include essential elements such as the name of all the relevant parties, the terms outlining the conditions of settlement, and the consequences in the event of non‑compliance or breach., While deliberating upon such issues, the Delhi High Court also takes note of the decision rendered by Honourable Division Bench of the Delhi High Court in Rajat Gupta v. Rupali Gupta 2018 Supreme Court Cases OnLine Delhi 9005, wherein four questions of law had been sent for consideration by way of reference, and the Court had laid down detailed guidelines regarding drawing up petitions and agreements in cases filed for divorce by mutual consent., The mediation process involving family disputes, albeit, is no more in its infancy in India. However, considering the problems that arise in such disputes, it is still evolving and trying to grapple with new problems which may arise on several grounds. While there can be no fixed pattern for preparing an agreement or a proforma to fill in for the purpose of affecting a settlement before a mediator, the mediators dealing especially with matrimonial disputes should keep in mind that such agreements are reached with an intent to attain finality to all the disputes. In matrimonial disputes, the parties in majority of cases want the disputes to be settled at the earliest while the emotions and tempers run high. While the Mediator performs the duty of not only dealing with those tempers but also their disagreements and emotions, the mediator also has another responsibility to ensure that the agreement reached by the parties, as well as the hard work of the parties, their families, counsels and the Mediator, is crystalised. It is unfortunate to note that these attempts fail in a large number of cases, and the parties find themselves in conflict once again due to flaws or ambiguities in the settlement agreements., Having discussed the significance of the process of mediation in resolution of a dispute, especially those arising out of family and matrimonial cases, and having taken note of complexities that can arise due to inadequate drafting, inconsistencies, omissions or oversights within a settlement agreement achieved between parties subsequent to a successful mediation, the Delhi High Court deems it appropriate to lay down the following guidelines in relation to drafting of a Mediated Settlement Agreement, in addition to the guidelines laid down:, Specify Names of Parties: The agreement must specifically contain names of all the parties to the agreement. Avoid Ambiguous Terms: Terms such as respondent, respondents, petitioner or petitioners, in absence of their names in the agreement must be avoided as they lead to ambiguities and further litigation. Include All Details: The terms and conditions of the agreement reached between the parties, however small and minute they may be, must be incorporated in the agreement. Timeline For Compliance: The timeline of the fulfilment of terms and conditions as well as their execution must be clearly mentioned; there should be no tentative dates as far as possible. Default Clause: A default clause should be incorporated in the agreement and the consequences thereof should be explained and enlisted in the agreement itself. Mode of Payment: In case any payment is to be made as per settlement, the agreement should specify the method of payment agreed upon between the parties which should also be as per their convenience i.e., electronic mode, by way of a Demand Draft or Fixed Deposit Receipt and the necessary details for fulfilment of this condition. Follow‑Up Documents: The agreement should also stipulate which follow‑up documents are to be prepared and signed by which party, and may also mention when, where, how and at whose cost such documents are to be prepared in furtherance of the terms of the agreement., Cases involving Section 498A of the Indian Penal Code: Further, especially in cases of matrimonial disputes, where one of the conditions in the Agreement is to cooperate in quashing of the First Information Report, such as those under Section 498A of the Indian Penal Code, and filing of affidavit and appearing in the Court for the purpose of the same, it is advisable that the agreement must stipulate the names of all the parties concerned who have been named in the First Information Report specifically and the fact that the claims have been settled in totality for quashing of the entire First Information Report and proceedings emanating therefrom qua all persons named in the First Information Report. It should also be clarified specifically that the First Information Report will be quashed in totality against all the persons arrested, not arrested, chargesheeted, not chargesheeted, with their names and whether the entire First Information Report will be quashed against all of them upon payment by the husband or any other person on behalf of the husband., Criminal Complaints/Cross‑cases: Criminal complaints filed by parties against each other, pending trial or investigation should also find specific mention with names of all the parties, the Court concerned, and as to how the parties intend to deal with them. The number/details of the complaint, First Information Report, Sections under which they have been filed, should also be mentioned specifically., Read and Understood: The agreement should necessarily mention that all the parties have read and understood the contents of the settlement agreement in their vernacular language., Signing of Agreement: In case only one or some parties are present during mediation proceedings and only their signatures are obtained on the agreement, it should be clearly mentioned and clarified that the agreement is being signed on behalf of those relatives or parties also even in case they are not present, in case the agreement is qua them too and they are not present in person due to age, ailment, distance or any other reason. It is important to do so since in matrimonial offences, the near and distant relatives may, due to above reasons, not be present in person but agreements are reached in totality, especially regarding quashing of First Information Reports and criminal proceedings and withdrawal of complaints., Clarity of Language: At last, the language used in a settlement agreement must be definite enough to understand the real intention of the parties and the goals they wish to achieve by entering into the agreement., Judicial Realism: Urgent Need to have Settlement Agreements in Hindi, There is an urgent need to ensure that the agreement drafted to settle the issues to bring an end to a future or pending dispute does not itself become a matter of dispute giving rise to another dispute between the parties. The common understanding of the parties on essential conditions for enforceability of an agreement is crucial in a mediated settlement agreement and expressing intentions and commitments to the agreement through clear and concise language is critical for its effective enforcement. But a mediator should bear in mind that the level of understanding of the parties concerned may vary according to their social backgrounds, and thus, the mediator should remain attentive and alert to the circumstances, capacity, and linguistic abilities of the parties involved, considering their backgrounds and language proficiency. Since mediated settlement agreements are usually drafted in English, it is important to carefully draft and ensure that the parties concerned comprehend the agreement in vernacular language as this can significantly impact its effectiveness and execution., The Delhi High Court also remains conscious of the fact that the majority of litigants who approach this Court and the Courts below speak Hindi as their first language. Given that Hindi is their mother tongue, they are far more adept at speaking and understanding it than they are at other languages such as English. However, the mediated settlement agreements in Delhi are drafted only in English. In such a scenario, the Settlement Agreement and the conditions thereof may not always be adequately clear to the parties and at times, the translation from English to Hindi may not convey exactly what the parties intend to do., It can be noted that as per directions of the Central Government, a Hindi Department has been constituted in every Court and a Hindi Committee is also constituted in every Court complex. The project of translation of the judgments from English to Hindi is already successfully working under guidance of the Honourable Apex Court., Preparation of Mediated Settlement Agreements in Hindi: It is, therefore, directed that the concerned In‑charge of Mediation Centres will ensure that the mediated settlement agreements are prepared in Hindi language also, in addition to English language, as far as possible. It is being directed since in majority of cases, the parties do not comprehend English and their spoken language and mother tongue is Hindi. However, in cases the parties are well‑versed in English language and want the agreement to be in English language only, there will be no such insistence or requirement., The Delhi High Court hopes that once the agreements are written in Hindi, wherever required, which the parties understand and the Mediator performs his/her duty carefully, it will ensure not only finality of agreements in the mediation centres but also its successful culmination in the Courts of law which is the aim and objective of mediation centres., Also because the aim of mediation is to reduce or resolve litigation and not to escalate it, it would be apt to ask both the parties to bring their agreements in their own language even in skeletal form, which can help the mediator to ensure that none of the conditions is left out while preparing the final draft or agreement., While it is difficult to lay down a definitive list of factors to be considered while drafting mediated settlement agreements, this Court has made an effort to bring the issue to the fore and try to provide a solution as this Court is alive to the plight of the parties where even after ten years of having reached an agreement, they are still before the Court where the clause via which agreement was reached is itself under challenge due to its ambiguity., The above guidelines and directions, as enlisted in paragraph no. 42 and 46 are in addition to the guidelines and directions contained in the judgment of Rajat Gupta v. Rupali Gupta (supra) passed by Honourable Division Bench of the Delhi High Court in respect of the issues raised before the Court therein., Coming back to the present case, the parties to the settlement agreement had demonstrated their intention to release one another from all past, present and future claims and had settled all the matrimonial disputes against each other and their families, but the petitioners herein could not have foreseen that the complainant will use the ambiguity in the Mediated Settlement Agreement after ten years to their detriment. While the contextual analysis in this case indicates mutually acceptable agreement between the parties, the Settlement Agreement reflects the understanding of the parties towards the economic consequences and towards attaining a finality to the dispute. However, the absence of a default clause and the conditions being written in inadequate terms have come in the way of putting an end to the litigation and the misery of the petitioners. While the petitioners herein thought that they were insulated from any claim from the complainant or from criminal charges as the case had been settled and the First Information Report was agreed to be quashed wherein they were named, they remained unaware of the change of mind of the complainant which happened before this Court., In cases of matrimonial disputes and proceedings of divorce, both the parties go through one of the most stressful phases of their lives. In cases such as the present one, where the matter was settled at an early stage and the parties were able to reach the final agreement, the mediator should also be careful of the future consequences of the agreement that the parties were arriving at, and the fact that fulfilment of one condition leads to another and in matrimonial cases, fulfilment of each condition and successful culmination and execution of such an agreement can make or break many lives., When a Court is faced with a situation as the present one, it is left with no other option but to look at the circumstances in which the agreement was negotiated and executed and also peruse the records to find the original objective which the parties were seeking to achieve as well as the original intention exhibited by subsequent substantial compliance with the terms of the mediated settlement agreement. The complainant, who is now seeking to persuade the Delhi High Court to believe that she had not agreed to settle the case with the rest of the accused persons i.e., the petitioners herein though she has already obtained a mutual consent divorce and has received the entire amount for quashing of the First Information Report, had to bring before this Court the reasons and circumstances which reflect that she can make significant departure from the settlement agreement qua the present petitioners, and the clock cannot be put back by setting aside the entire settlement agreement., The Delhi High Court, therefore, having taken a broader approach of characterising the main issue in this case as discussed above, holds that the agreement in the present case for quashing of the First Information Report was qua all the respondents as mentioned in clause 5 of the Settlement Agreement in question., Thus, as far as the prayer in the present petition is concerned, the same is allowed and the First Information Report bearing no. 519/2012, registered at Police Station Uttam Nagar, for the offences punishable under Sections 498A, 406, 34 of the Indian Penal Code and all proceedings emanating therefrom stand quashed., Accordingly, the present petition stands disposed of in above terms and directions., To conclude, the Delhi High Court notes that the confusion that arose due to an ambiguity in the settlement agreement and the prolonging of the present case for ten years after having been settled underscored the importance of laying down the above mentioned guidelines for preparation of mediated settlement agreements. The lives of people embroiled in matrimonial litigation are often in state of turmoil, and thus, mediation as a method of alternate dispute resolution has to come to their rescue instead of further extending the state of turmoil. Guidance needed by the mediators to draft agreements with degree of coherence, consistency, and unambiguity will come a long way in healing the lives of those in need of such healing by immediately putting an end to a dispute and further insulating them from future litigation. This Court by way of this judgment only aims to ensure that challenges to such mediation agreements due to lack of clarity or missing out on the crucial aspects of the agreement are minimized., A copy of this judgment be forwarded to In‑Charge, Delhi High Court Mediation and Conciliation Centre (SAMADHAN) as well as concerned In‑charge of all the Mediation Centres in all District Courts of Delhi, for taking note and ensuring compliance and for further circulation among all learned mediators. A copy be also forwarded to Director (Academics), Delhi Judicial Academy., The judgment be uploaded on the website forthwith.
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