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id_1293	1	The adjudication of stamp duty is a time‑consuming affair and it would not align with the goal of the Arbitration and Conciliation Act, 1996, which is to ensure the expeditious appointment of arbitrators and the conclusion of the proceedings with the least judicial interference. If the Supreme Court of India refrained from interfering on the score of disputes as to stamp duty and allowed the arbitrator to deal with the matter, which he is, in law, fully competent to deal with, it would promote the very cause of speedy dispute resolution, which is the very goal of the institution of arbitration., At the time of hearing, Shri K. Ramakanth Reddy, learned senior counsel, appeared for the first respondent. He contended that the Supreme Court of India must adopt a harmonious construction as between the Stamp Act and the Arbitration and Conciliation Act, 1996. He emphasized the importance of conforming to Section 5 of the Act. He drew our attention to the judgment of this Court in Great Offshore Ltd. v. Iranian Offshore Engg. & Construction Co. In the said judgment, authored by a learned single judge, while dealing with a petition under Section 11 of the Act, the Court held: “Second, the plain language of Section 7 once again governs my conclusion. Section 7 does not require that the parties stamp the agreement. It would be incorrect to disturb Parliament’s intention when it is so clearly stated and when it in no way conflicts with the Constitution.”, Technicalities like stamps, seals and even signatures are red tape that have to be removed before the parties can obtain an efficient, effective and potentially cheap resolution of their dispute. The doctrine of autonomy of the will is enshrined in the policy objectives of the United Nations Commission on International Trade Law (UNCITRAL) Model Law on International Commercial Arbitration, 1985, on which our Arbitration and Conciliation Act, 1996 is based (see Preamble to the Act). The courts must implement legislative intention. It would be improper and undesirable for the courts to add a number of extra formalities not envisaged by the legislation. The courts’ directions should be to achieve the legislative intention., He also drew our attention to the judgment of this Court in Commissioner of Income Tax v. Hindustan Bulk Carriers, inter alia, that a court faced with two interpretations should avoid the construction which reduces the legislation to futility but accept a bolder construction which will produce an effective result in accordance with the purpose sought to be achieved., Shri Debesh Panda, learned counsel appearing for the applicant (intervention) in I.A. No. 199969 of 2022, submitted that the Act constitutes a complete code. Since Section 5 of the Act contains a non‑obstante clause which declares that notwithstanding anything contained in any other law for the time being in force, despite the Stamp Act, on the principle of minimum interference except as provided in Part I of the Act, the Supreme Court of India should not be detained by Sections 33 and 35 of the Stamp Act. He also reiterated that what is required under Section 11 is a prima facie satisfaction. Parliament did not require consideration of validity when it enacted Section 11 (6A). There is a conscious distinction between Sections 8 and 11. In other words, there is a distinction between the expression’s existence and validity. The width of powers under Section 16 is untrammeled, he contended., In view of the submission made by the learned amicus that the Supreme Court of India in N.N. Global was in error in proceeding on the basis that the arbitration agreement would not be exigible to stamp duty, the very premise of the Order of Reference would stand removed. The reformulated question, without the words “which is not chargeable to payment of stamp duty” and “unenforceable or invalid”, would be as follows: Whether the statutory bar contained in Section 35 of the Stamp Act applicable to instruments chargeable to stamp duty under Section 3 read with the Schedule to the Act would also render the arbitration agreement contained in such an instrument as being non‑existent pending payment of stamp duty on the substantive contract/instrument?, Section 2(b) of the Act defines an arbitration agreement to be an agreement referred to in Section 23. Section 5 of the Act declares: “Extent of judicial intervention. Notwithstanding anything contained in any other law for the time being in force, in matters governed by this Part, no judicial authority shall intervene except where so provided in this Part.”, Section 7 of the Act reads as follows: “Arbitration agreement. (1) In this Part, arbitration agreement means an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not. (2) An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement. (3) An arbitration agreement shall be in writing. (4) An arbitration agreement is in writing if it is contained in (a) a document signed by the parties; (b) an exchange of letters, telex, telegrams or other means of telecommunication which provide a record of the agreement; or (c) an exchange of statements of claim and defence in which the existence of the agreement is alleged by one party and not denied by the other. (5) The reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement if the contract is in writing and the reference is such as to make that arbitration clause part of the contract.”, Section 11 deals with appointment of arbitrators. Since we are concerned with the impact of Section 11(6A), which was inserted by Act 3 of 2016 effective from 23 October 2015, we refer to it: “(6A) The Supreme Court of India or, as the case may be, the High Court, while considering any application under sub‑section (4) or sub‑section (5), shall, notwithstanding any judgment, decree or order of any court, confine the examination to the existence of an arbitration agreement.” It must be noticed that the aforesaid provision stands omitted by Act 33 of 2019, but Act 33 of 2019 has not been brought into force., It is important to delve into the past and enquire as to what led to the insertion of sub‑section (6A) in Section 11 of the Act. The Act was passed in 1996 and is based on the UNCITRAL Model Law. The Hundred‑and‑Seventy‑Sixth Report of the Law Commission of India made its recommendations for enacting amendments to the Act. This is followed by the Justice B. P. Saraf Committee Report, which was submitted on 29 January 2005. The nature of the power exercised by the courts under Section 11 of the Act was the subject matter of considerable case law. A bench of seven learned judges, with a lone dissent, in SBP held that the power exercised under Section 11(6) was a judicial power and not an administrative power. In the majority judgment, the Court considered the impact of Section 16 of the Act, which incorporates the principle of Kompetenz‑Kompetenz. The Court held, inter alia, as follows: “When the tribunal decides the questions of jurisdiction and of exceeding the scope of authority, the same is open to immediate challenge in an appeal if the objection is upheld, and only in an appeal against the final award if the objection is overruled. Sub‑section (5) enjoins that if the arbitral tribunal overrules the objections under sub‑section (2) or (3), it should continue with the arbitral proceedings and make an arbitral award. Sub‑section (6) provides that a party aggrieved by such an arbitral award may make an application for setting aside the award in accordance with Section 34 of the Act. The question, in the context of sub‑section (7) of Section 11, is what is the scope of the right conferred on the arbitral tribunal to rule upon its own jurisdiction and the existence of the arbitration clause, envisaged by Section 16(1), once the Chief Justice or the person designated by him has appointed an arbitrator after satisfying himself that the conditions for the exercise of power to appoint an arbitrator are present. Prima facie, it would be difficult to say that despite the finality conferred by sub‑section (7) of Section 11, the arbitral tribunal can still go behind that decision and rule on its own jurisdiction or on the existence of an arbitration clause. It also appears incongruous to say that after the Chief Justice has appointed an arbitral tribunal, the tribunal can turn round and say that the Chief Justice had no jurisdiction or authority to appoint the tribunal, the very creature brought into existence by the exercise of power by its creator, the Chief Justice. The argument of the learned senior counsel, Mr. K. K. Venugopal, that Section 16 has full play only when an arbitral tribunal is constituted without intervention under Section 11(6) of the Act, is one way of reconciling that provision with Section 11, especially in the context of sub‑section (7) thereof. We are inclined to the view that the decision of the Chief Justice on the issue of jurisdiction and the existence of a valid arbitration agreement would be binding on the parties when the matter goes to the arbitral tribunal and at subsequent stages of the proceeding, except in an appeal to the Supreme Court of India in the case of the decision being by the Chief Justice of the High Court or by a judge of the High Court designated by him.”, We may next notice the judgment rendered by a bench of two learned judges in SMS Tea Estates. They dealt with three questions. The second question was whether an arbitration agreement in an unregistered instrument, which is not duly stamped, is valid and enforceable. The Court held as follows: “The Scheme for Appointment of Arbitrators by the Chief Justice of Gauhati High Court, 1996 requires an application under Section 11 of the Act to be accompanied by the original arbitration agreement or a duly certified copy thereof. If a certified copy of the agreement/contract/instrument containing the arbitration clause is produced, it should disclose the stamp duty that has been paid on the original. Section 33 casts a duty upon every court, that is, a person having by law authority to receive evidence (as also every arbitrator who is a person having by consent of parties authority to receive evidence) before whom an unregistered instrument chargeable with duty is produced, to examine the instrument in order to ascertain whether it is duly stamped. If the court concludes that the instrument is not duly stamped, it has to impound the document and deal with it as per Section 38 of the Stamp Act.” The Court summed up the procedure where the arbitration clause is contained in a document which is not registered (but compulsorily registerable) and which is not duly stamped: (i) The court should, before admitting any document into evidence or acting upon such document, examine whether the instrument/document is duly stamped and whether it is an instrument which is compulsorily registerable. (ii) If the document is found to be not duly stamped, Section 35 of the Stamp Act bars the document from being acted upon; consequently, even the arbitration clause therein cannot be acted upon. The court should then impound the document under Section 33 of the Stamp Act and follow the procedure under Sections 35 and 38 of the Stamp Act. (iii) If the document is found to be duly stamped, or if the deficit stamp duty and penalty are paid, either before the court or before the Collector as contemplated in Section 35 or 40 of the Stamp Act, and the defect with reference to deficit stamp is cured, the court may treat the document as duly stamped. This view has been followed subsequently in Garware and also in Dharmaratnakara Rai Bahadur Arcot Narainswamy Mudaliar Chattram v. Bhaskar Raju & Bros., Shin‑Etsu Chemical Co. Ltd. v. Aksh Optifibre Ltd. and another was a case of international arbitration arising under Section 45 of the Act. With a bench of three learned judges deciding the case, the majority, with Justice Y. K. Sabharwal dissenting, took the view that in deciding whether a reference must be made to arbitration under Section 45, the approach must be to find out whether a prima facie case is made out and whether it is plainly arguable that an arbitration agreement was in existence. The Court held that there must be a prima facie satisfaction that there was an arbitration agreement which is not null and void, inoperative or incapable of being performed. Section 45, at the time the case was decided, read as follows: “Power of judicial authority to refer parties to arbitration. – Notwithstanding anything contained in Part I or in the Code of Civil Procedure, 1908, a judicial authority, when seized of an action in a matter in respect of which the parties have made an agreement referred to in Section 44, shall, at the request of one of the parties or any person claiming through or under him, refer the parties to arbitration, unless it finds that the said agreement is null and void, inoperative or incapable of being performed.”, It was on the aforesaid statutory text that Justice B. N. Srikrishna took the view that the finding as to the existence of the arbitration agreement was to be a prima facie finding. Justice D. M. Dharmadhikari agreed with Justice B. N. Srikrishna with certain additions., In National Insurance Company Limited v. Boghara Polyfab Private Limited, the question before a bench of two learned judges was under what circumstances a court would refuse to refer a dispute relating to quantum to arbitration even though the contract contemplated a reference of such a dispute to arbitration. It also fell for consideration whether the resistance to the reference on the ground that the applicant under Section 11 of the Act had received the amount and issued a full and final discharge voucher, which he contended was issued under undue influence, coercion and economic compulsion, justified the refusal. Justice R. V. Raveendran, speaking for the Supreme Court of India, inter alia, purported to follow the judgment in SBP and held as follows: “Where the intervention of the court is sought for appointment of an arbitral tribunal under Section 11, the duty of the Chief Justice or his designate is defined in SBP & Co. [(2005) 8 SCC 618]. This Court identified and segregated the preliminary issues that may arise for consideration in an application under Section 11 of the Act into three categories: (i) issues which the Chief Justice or his designate is bound to decide; (ii) issues which he may also decide, that is, issues which he may choose to decide; and (iii) issues which should be left to the arbitral tribunal to decide. The issues (first category) which the Chief Justice or his designate will have to decide are: (a) whether the party making the application has approached the appropriate High Court; (b) whether there is an arbitration agreement and whether the party who has applied under Section 11 of the Act is a party to such an agreement. The issues (second category) which the Chief Justice or his designate may choose to decide (or leave to the arbitral tribunal) are: (a) whether the claim is a dead (long‑barred) claim or a live claim; (b) whether the parties have concluded the contract/transaction by recording satisfaction of their mutual rights and obligations or by receiving the final payment without objection. The issues (third category) which the Chief Justice or his designate should leave exclusively to the arbitral tribunal are: (i) whether a claim made falls within the arbitration clause (for example, a matter reserved for final decision of a departmental authority and excepted or excluded from arbitration); (ii) merits of any claim involved in the arbitration.) It is clear from the scheme of the Act, as explained by this Court in SBP & Co., that in regard to issues falling under the second category, if raised in any application under Section 11, the Chief Justice or his designate may decide them, if necessary, by taking evidence, or may leave those issues open with a direction to the arbitral tribunal to decide the same. If the Chief Justice or his designate chooses to examine the issue and decides it, the arbitral tribunal cannot re‑examine the same issue. The Chief Justice or his designate will, in choosing whether to decide such issue or leave it to the arbitral tribunal, be guided by the object of the Act (that is, expediting the arbitration process with minimum judicial intervention). Where allegations of forgery or fabrication are made in regard to the document recording discharge of contract by full and final settlement, it would be appropriate if the Chief Justice or his designate decides the issue.”, It is however clear that when a respondent contends that the dispute is not arbitrable on account of discharge of the contract under a settlement agreement or discharge voucher or no‑claim certificate, and the claimant contends that it was obtained by fraud, coercion or undue influence, the issue will have to be decided either by the Chief Justice or his designate in the proceedings under Section 11 of the Act or by the arbitral tribunal as directed by the order under Section 11 of the Act. A claim for arbitration cannot be rejected merely or solely on the ground that a settlement agreement or discharge voucher had been executed by the claimant, if its validity is disputed by the claimant., It is to be noticed that, at the time when the Supreme Court of India rendered SBP and SMS Tea Estates, Section 11(6) contemplated appointment being made of an arbitrator essentially on the failure of parties to agree on the appointment or to make the appointment. It is in the context of the views expressed by the courts, as aforesaid, that the Law Commission of India submitted the Two Hundred and Forty‑Sixth Report in August 2014. In the said report, after referring to the judgment in SBP and the views expressed in National Insurance, the Law Commission inter alia submitted the following recommendations: “The Commission is of the view that, in this context, the same test regarding scope and nature of judicial intervention, as applicable in the context of Section 11, should also apply to Sections 8 and 45 of the Act – since the scope and nature of judicial intervention should not change whether a party intending to defeat the arbitration agreement refuses to appoint an arbitrator in terms of the arbitration agreement, or moves a proceeding before a judicial authority in the face of such an arbitration agreement.” In relation to the nature of intervention, the exposition of the law is to be found in the decision of the Supreme Court of India in Shin‑Etsu Chemicals Co. Ltd. v. Aksh Optifibre (2005) 7 SCC 234, where the Supreme Court ruled in favour of looking at the issues/controversy only prima facie., The Commission recommended amendments to Sections 8 and 11 of the Arbitration and Conciliation Act, 1996. The scope of judicial intervention is restricted to situations where the court or judicial authority finds that the arbitration agreement does not exist or is null and void. Regarding the nature of intervention, it is recommended that if the court or judicial authority is prima facie satisfied that the arbitration agreement exists, it shall appoint the arbitrator and/or refer the parties to arbitration, as the case may be. The amendment envisages that the judicial authority shall not refer the parties to arbitration only if it finds that there does not exist an arbitration agreement or that it is null and void. If the judicial authority is of the opinion that prima facie the arbitration agreement exists, then it shall refer the dispute to arbitration, leaving the existence of the arbitration agreement to be finally determined by the arbitral tribunal. However, if the judicial authority concludes that the agreement does not exist, then the conclusion will be final and not merely prima facie. The amendment also envisages a conclusive determination as to whether the arbitration agreement is null and void. In the event that the judicial authority refers the dispute to arbitration and/or appoints an arbitrator under Sections 8 and 11 respectively, such a decision will be final and non‑appealable. An appeal can be maintained under Section 37 only in the event of refusal to refer parties to arbitration, or refusal to appoint an arbitrator., Accordingly, accepting the report, Section 11(6A) was inserted. After having set out the events which led to the insertion of Section 11(6A), we may take the narrative forward. In Duro Felguera, we have noticed the view taken in paragraph 59 of an earlier part of this judgment, in essence, the duty to find out whether an arbitration agreement exists or not. The learned judge also made observations in paragraph 48 wherein, after quoting Section 11(6A), he held as follows: “From a reading of Section 11(6A), the intention of the legislature is crystal clear, i.e., the court should look only into one aspect – the existence of an arbitration agreement. What are the factors for deciding whether there is an arbitration agreement is the next question. The resolution to that is simple: it needs to be seen if the agreement contains a clause which provides for arbitration pertaining to the disputes which have arisen between the parties to the agreement.”, In Garware, a bench of two learned judges dealt with a case under Section 11(6A) itself and that too in the context of the Maharashtra Stamp Act, 1958. The contention raised by the appellant was that the judgment in SMS Tea Estates continues to apply even after the introduction of Section 11(6A). In other words, notwithstanding the insertion of Section 11(6A), the procedure contemplated in SMS Tea Estates would have to be followed. The Court held, inter alia, as noticed by us already and which has been referred to in N.N. Global: “When an arbitration clause is contained ‘in a contract’, it is significant that the agreement only becomes a contract if it is enforceable by law. We have seen how, under the Indian Stamp Act, an agreement does not become a contract, namely, that it is not enforceable in law, unless it is duly stamped. Therefore, even a plain reading of Section 11(6A), when read with Section 7(2) of the 1996 Act and Section 2(h) of the Contract Act, would make it clear that an arbitration clause in an agreement would not exist when it is not enforceable by law. This is also an indicator that SMS Tea Estates has, in no manner, been touched by the amendment of Section 11(6A).”, The judgment in Hyundai Engineering case is important in that what was specifically under consideration was an arbitration clause which would get activated only if an insurer admits or accepts liability. Since on facts it was found that the insurer repudiated the claim, though an arbitration clause did “exist” in the policy, it would not exist in law, as held in that judgment, when one important fact is introduced, namely, that the insurer has not admitted or accepted liability. Likewise, in the facts of the present case, it is clear that the arbitration clause contained in the sub‑contract would not “exist” as a matter of law until the sub‑contract is duly stamped, as has been held by us above. The argument that Section 11(6A) deals with “existence”, as opposed to Sections 8, 16 and 45, which deal with “validity” of an arbitration agreement, is answered by this Court’s understanding of the expression “existence” in Hyundai Engineering case as followed by us., We may notice that in Section 45 of the Act, for the words “unless it finds”, by Act 33 of 2019, the words “unless it prima facie finds” were substituted. This amounted to a legislative recognition of the position taken by this Court through the judgment rendered by Justice B. N. Srikrishna in SMS Tea Estates., In Mayavati Trading (P) Ltd. v. Pradyuat Deb Burman, a bench of three learned judges of this Court inter alia held as follows: “This being the position, it is clear that the law prior to the 2015 amendment, which has been laid down by this Court, would have included going into whether accord and satisfaction has taken place, has now been legislatively overruled. This being the position, it is difficult to agree with the reasoning contained in the aforesaid judgment, as Section 11(6A) is confined to the examination of the existence of an arbitration agreement and is to be understood in the narrow sense as laid down in the judgment in Duro Felguera, SA.” (The cited paragraphs 48 and 59 of Duro Felguera, SA are reproduced for ready reference.), The view taken in Garware, paragraphs 22 and 29, was specifically approved by a bench of three learned judges in the judgment reported in Vidya Drolia. Therein, Justice Sanjiv Khanna wrote for the Supreme Court of India and Justice N. V. Ramana supplemented with his own judgment. The judgment was rendered on a reference dated 28 February 2009 and the question was whether landlord‑tenant disputes, governed by provisions of the Transfer of Property Act, were arbitrable or not. Apart from the said issue, the other conundrum was as to who would decide, viz., the court at the reference stage, or the arbitral tribunal in the arbitration proceedings. The Court also found it fit to go into the scope and ambit of the jurisdiction at the reference stage. In paragraphs 146 and 147, 147.1 of Vidya Drolia, the Court made the following observations...
id_1293	2	We now proceed to examine the question, whether the word existence in Section 11 merely refers to contract formation (whether there is an arbitration agreement) and excludes the question of enforcement (validity) and therefore the latter falls outside the jurisdiction of the Supreme Court of India at the referral stage. On jurisprudential and textualist analysis it is possible to differentiate between existence of an arbitration agreement and validity of an arbitration agreement. Such interpretation can draw support from the plain meaning of the word existence. However, it is equally possible, on contextualist analysis, to hold that an agreement has no existence if it is not enforceable and not binding. Existence of an arbitration agreement presupposes a valid agreement which would be enforced by the Supreme Court of India by relegating the parties to arbitration. Legalistic and plain‑meaning interpretation would be contrary to the contextual background including the definition clause and would result in unpalatable consequences. A reasonable and just interpretation of existence requires understanding the context, the purpose and the relevant legal norms applicable for a binding and enforceable arbitration agreement. An agreement evidenced in writing has no meaning unless the parties can be compelled to adhere and abide by the terms. A party cannot sue and claim rights based on an unenforceable document. Thus, there are good reasons to hold that an arbitration agreement exists only when it is valid and legal. A void and unenforceable understanding is no agreement to do anything. Existence of an arbitration agreement means an arbitration agreement that meets and satisfies the statutory requirements of both the Arbitration Act and the Contract Act and when it is enforceable in law., We would proceed to elaborate and give further reasons. In Garware Wall Ropes Ltd. v. Coastal Marine Constructions & Engineering Ltd., (2019) 9 SCC 209 : (2019) 4 SCC (Civ) 324, the Supreme Court of India examined the question of stamp duty in an underlying contract with an arbitration clause and drew a distinction between the first and second part of Section 7(2) of the Arbitration Act. The judgment in United India Insurance Co. Ltd. v. Hyundai Engineering & Construction Co. Ltd., (2018) 17 SCC 607 : (2019) 2 SCC (Civ) 530 is important because the arbitration clause would be activated only if an insurer admits or accepts liability. The insurer repudiated the claim, so although an arbitration clause existed in the policy, it would not exist in law when the insurer has not admitted or accepted liability. Likewise, in the present case the arbitration clause contained in the sub‑contract would not exist as a matter of law until the sub‑contract is duly stamped. The argument that Section 11(6‑A) deals with existence, as opposed to Sections 8, 16 and 45 which deal with validity of an arbitration agreement, is answered by the Supreme Court of India's understanding of the expression existence in the Hyundai Engineering case. Existence and validity are intertwined, and an arbitration agreement does not exist if it is illegal or does not satisfy mandatory legal requirements. An invalid agreement is no agreement., It is thereafter that in N.N. Global (supra), the Supreme Court of India doubted the correctness of the view taken in the aforesaid paragraphs and referred to the findings in paragraph‑22 and 29 in Garware (supra), which stood affirmed in paragraphs‑146 and 147 of Vidya Drolia (supra). Paragraph‑147 of Vidya Drolia (supra) purported to give reasons in regard to what was stated in paragraph‑146. Paragraph‑147 is followed by paragraphs‑147.1 to 147.11. However, what the Supreme Court of India in N.N. Global (supra) doubted appears to be paragraphs‑146 and 147, which we understand in the context of this case is to be confined to paragraph‑147.1., We may resume survey of the Act to the extent it is relevant. Section 16 enshrines the principle of Kompetenz‑Kompetenz. It reads as follows: 16. Competence of arbitral tribunal to rule on its jurisdiction. (1) The arbitral tribunal may rule on its own jurisdiction, including ruling on any objections with respect to the existence or validity of the arbitration agreement, and for that purpose, (a) an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract; and (b) a decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause. (2) A plea that the arbitral tribunal does not have jurisdiction shall be raised not later than the submission of the statement of defence; however, a party shall not be precluded from raising such a plea merely because he has appointed, or participated in the appointment of, an arbitrator. (3) A plea that the arbitral tribunal is exceeding the scope of its authority shall be raised as soon as the matter alleged to be beyond the scope of its authority is raised during the arbitral proceedings. (4) The arbitral tribunal may, in either of the cases referred to in sub‑section (2) or sub‑section (3), admit a later plea if it considers the delay justified. (5) The arbitral tribunal shall decide on a plea referred to in sub‑section (2) or sub‑section (3) and, where the arbitral tribunal takes a decision rejecting the plea, continue with the arbitral proceedings and make an arbitral award. (6) A party aggrieved by such an arbitral award may make an application for setting aside such an arbitral award in accordance with section 39., Section 2(6) defines the word chargeable as follows: 2(6) Chargeable means, as applied to an instrument executed or first executed after the commencement of this Act, chargeable under this Act, and, as applied to any other instrument, chargeable under the law in force in India when such instrument was executed or, where several persons executed the instrument at different times, first executed., Section 2(11) defines the words duly stamped as follows: 2(11) Duly stamped, as applied to an instrument, means that the instrument bears an adhesive or impressed stamp of not less than the proper amount and that such stamp has been affixed or used in accordance with the law for the time being in force in India., Section 2(12) defines the word executed with reference to instruments as meaning signed., Section 2(14) defines the word instrument as including every document by which any right or liability is or purports to be created, transferred, limited, extended, extinguished or recorded., Section 3 deals with the instruments indicated therein being chargeable with duty, subject to the exemptions contained in Schedule I., Section 4 contemplates a situation where there are several instruments., There are other provisions which relate to other transactions. Section 17 deals with the time of stamping of instruments. Section 17 provides for instruments executed in India and declares that such instruments, chargeable with duty, shall be stamped before or at the time of execution., Section 31 deals with adjudication as to proper stamp. The adjudication is to be made by the Collector. Chapter IV contains Section 33 and the chapter heading is Instruments not duly stamped. Section 33 reads as follows: 33. Examination and impounding of instruments. (1) Every person having by law or consent of parties authority to receive evidence, and every person in charge of a public office, except an officer of police, before whom any instrument, chargeable in his opinion with duty, is produced or comes in the performance of his functions, shall, if it appears to him that such instrument is not duly stamped, impound the same. (2) For that purpose every such person shall examine every instrument so chargeable and so produced or coming before him, in order to ascertain whether it is stamped with a stamp of the value and description required by the law in force in India when such instrument was executed or first executed: Provided that (a) nothing herein contained shall be deemed to require any magistrate or judge of a criminal court to examine or impound, if he does not think fit to do so, any instrument coming before him in the course of any proceeding other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898 (V of 1989); (b) in the case of a judge of a High Court, the duty of examining and impounding any instrument under this section may be delegated to such officer as the Court appoints in this behalf. (3) For the purposes of this section, in cases of doubt, (a) the State Government may determine what offices shall be deemed to be public offices; (b) the State Government may determine who shall be deemed to be persons in charge of public offices., Next, we must notice Section 35, which reads as follows: 35. Instruments not duly stamped inadmissible in evidence, etc. No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped: Provided that (a) any such instrument shall be admitted in evidence on payment of the duty with which the same is chargeable, or, in the case of any instrument insufficiently stamped, of the amount required to make up such duty, together with a penalty of five rupees, or, when ten times the amount of the proper duty or deficient portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion; (b) where any person from whom a stamped receipt could have been demanded has given an unstamped receipt and such receipt, if stamped, would be admissible in evidence against him, then such receipt shall be admitted in evidence against him on payment of a penalty of one rupee by the person tendering it; (c) where a contract or agreement of any kind is effected by correspondence consisting of two or more letters and any one of the letters bears the proper stamp, the contract or agreement shall be deemed to be duly stamped; (d) nothing herein contained shall prevent the admission of any instrument in evidence in a proceeding in a criminal court, other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure 1898; (e) nothing herein contained shall prevent the admission of any instrument in any court when such instrument has been executed by or on behalf of the Government, or where it bears the certificate of the Collector as provided by section 32 or any other provision of this Act., Equally, we must bear in mind Section 36. It provides as follows: 36. Admission of instrument where not to be questioned. Where an instrument has been admitted in evidence, such admission shall not, except as provided in section 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped., Section 38 deals with how instruments which are impounded must be dealt with. It reads as follows: 38. Instruments impounded how dealt with. (1) When the person impounding an instrument under section 33 has by law or consent of parties authority to receive evidence and admits such instrument in evidence upon payment of a penalty as provided by section 35 or of duty as provided by section 37, he shall send to the Collector an authenticated copy of such instrument, together with a certificate in writing stating the amount of duty and penalty levied in respect thereof, and shall send such amount to the Collector or to such person as he may appoint in this behalf., Section 42 is relevant and it reads as follows: 42. Endorsement of instruments on which duty has been paid under sections 35, 40 or 41. (1) When the duty and penalty (if any) leviable in respect of any instrument have been paid under section 35, section 40 or section 41, the person admitting such instrument in evidence or the Collector, as the case may be, shall certify by endorsement that the proper duty or, as the case may be, the proper duty and penalty (stating the amount of each) have been levied in respect thereof, and the name and residence of the person paying them. (2) Every instrument so endorsed shall thereafter be admissible in evidence, may be registered and acted upon and authenticated as if it had been duly stamped, and shall be delivered on application to the person from whose possession it came into the hands of the officer impounding it, or as such person may direct: Provided that (a) no instrument which has been admitted in evidence upon payment of duty and a penalty under section 35 shall be delivered before the expiration of one month from the date of such impounding, or if the Collector has certified that its further detention is necessary and has not cancelled such certificate; (b) nothing in this section shall affect clause 50., Section 62(1)(b) makes it punishable with a fine which may extend to Rs.500/- for a person to execute or sign otherwise than as a witness any instrument chargeable with duty without the same being duly stamped. The proviso contemplates that if any penalty has been paid under sections 35, 40 or 61, the same shall be reduced., The Supreme Court of India in Hindustan Steel Limited v. Dilip Construction Company dealt with the following facts: an award was made by an umpire under the Indian Arbitration Act, 1940, which was filed in the Supreme Court of India. The appellant applied to set aside the award, contending that it was unstamped and therefore invalid, illegal and liable to be set aside. The respondent applied to the District Court to have the award impounded and validated by the levy of stamp duty and penalty. The award was impounded and visited with duty and penalty, which was duly paid and certified. The appellant contended that an unstamped award could not be admitted in evidence nor acted upon, as the instrument had no existence in the eye of law. The Supreme Court of India held, inter alia: (i) an instrument which is not duly stamped cannot be received in evidence by any person who has authority to receive evidence, and it cannot be acted upon by that person or any public officer; (ii) Section 35 provides that the admissibility of an instrument once admitted in evidence shall not, except as provided in Section 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped; (iii) reliance on the difference between Sections 35 and 36 was urged, but the argument ignored the true import of Section 36. By that section an instrument once admitted in evidence shall not be called in question on the ground that it has not been duly stamped. Section 36 does not prohibit a challenge that the instrument shall not be acted upon because it is not duly stamped; there is no bar against an instrument not duly stamped being acted upon after payment of the stamp duty and penalty as prescribed by the Act. The doubt, if any, is removed by Section 42(2), which states that every instrument endorsed by the Collector under Section 42(1) shall be admissible in evidence and may be acted upon as if it has been duly stamped. The Court also referred to M.C. Desai, J., in Mst Bittan Bibi v. Kuntu Lal, noting that a court is prohibited from admitting an instrument in evidence and a public officer is prohibited from acting upon it. Thus, an instrument can be admitted in evidence but not be acted upon until it is endorsed under Section 42(2)., We draw the following conclusions as laid down by a bench of three learned judges in Hindustan Steel: (i) the Stamp Act is a fiscal measure intended to raise revenue; (ii) the stringent provisions of the Act are meant to protect the interest of the Revenue; (iii) it is not intended to be used as a weapon by a litigant to defeat the opponent; (iv) upon endorsement under Section 42(2) of the Stamp Act, the document becomes admissible in evidence and can be acted upon. The Supreme Court of India did not consider Section 17 of the Stamp Act, which provides the precise time at which an instrument is to be stamped, nor did it bear in mind that Section 62 penalises transgression of Section 17. The Court was dealing with an instrument after it was impounded and the payments made were certified under Section 42(2). An unstamped instrument is compulsorily impoundable under Section 33 of the Stamp Act. After the procedure is followed and the duty and penalty are paid, the instrument is visited with the endorsement under Section 42(2). Thereafter, it becomes enforceable and can be acted upon., Section 2(g) of the Contract Act provides that an agreement not enforceable by law is void, whereas Section 2(h) declares that an agreement enforceable by law is a contract. Section 2(j) provides that a contract which ceases to be enforceable by law becomes void. There is a distinction between an agreement and a contract; not every agreement is a contract. Only agreements that are enforceable are treated as contracts, and a contract that ceases to be enforceable becomes void. Section 10 states that all agreements are contracts if they are made by the free consent of parties, competent to contract, for a lawful consideration and with a lawful object and are not expressly declared void. Nothing herein affects any law in force in India requiring a contract to be made in writing or in the presence of witnesses, or any law relating to the registration of documents., Section 14 defines free consent: consent is said to be free when it is not caused by (1) coercion (section 15), (2) undue influence (section 16), (3) fraud (section 17), (4) misrepresentation (section 18), or (5) mistake, subject to the provisions of sections 20, 21 and 22. Consent is said to be so caused when it would not have been given but for the existence of such coercion, undue influence, fraud, misrepresentation or mistake., The next part of Section 10 to be noticed is the expression parties competent to contract. Section 11 of the Contract Act declares that every person is competent to contract according to the law to which he is subject, is of sound mind and is not disqualified from contracting by any law to which he is subject. Since Section 11 requires soundness of mind for competency, Section 12 articulates what constitutes a sound mind for the purpose of the Contract Act. Section 23 deals with lawful consideration and lawful object: the consideration or object of an agreement is unlawful if it is forbidden by law, defeats any law, is fraudulent, involves injury to another person or property, or is immoral or opposed to public policy. Every agreement whose object or consideration is unlawful is void., The last part of the first limb of Section 10 provides that all agreements are contracts which are not expressly declared void. Sections 24 to 30 of Chapter II deal with agreements declared void within the meaning of Section 10, apart from Section 20 which is noted later. The second part of Section 10 provides that peremptory requirements may still have to be met to constitute a contract under law., Further, free consent is indispensable for making an agreement or contract under Section 10. Free consent, defined in Section 14, must be read with Sections 15 to 18, which define coercion, undue influence, fraud and misrepresentation respectively. Section 19 provides that where consent is obtained by coercion, fraud or misrepresentation, the contract is voidable at the option of the party whose consent was so caused. The effect of misrepresentation was dealt with by the Supreme Court of India in Ganga Retreat & Towers Ltd. v. State of Rajasthan, holding that a contract entered into by misrepresentation is voidable at the option of the aggrieved party, who may either rescind the contract or elect to affirm it, the latter amounting to ratification and extinguishing the power of avoidance. The law expects the party to exercise the right of avoidance promptly and communicate the election to the opposite party; until the right of avoidance is exercised, the contract remains valid., A right to rescind for misrepresentation can be lost in various ways. A representee who discovers the truth loses the right to rescind if he has elected not to rescind. He may also lose the right before any election if his conduct or circumstances make it unjust or inequitable to retain the right, for example where third parties have acquired rights under the contract or where restoration to the original position is impossible. Restitutio in integrum is indispensable to the right of rescission, and delay in election may render the continuation of the right unjust. Section 19A deals with lack of free consent due to undue influence, which results in a voidable contract rather than a void agreement. Section 20 declares that where both parties are under a mistake as to a material fact, the agreement is void. Section 21 provides that a mistake as to any law in force in India does not make the contract voidable. While Section 10 sets out the core elements for an agreement to become a contract, the effect of non‑conformity varies. Lack of competency and absence of sound mind completely detract from contract formation. Absence of free consent arising from coercion, undue influence, misrepresentation or fraud results in a contract that is voidable (see Sections 19 and 19A). Section 22 provides that a contract is not voidable merely because one party was mistaken as to a matter of fact., Section 37, under Chapter IV, deals with performance of contracts. It reads: 37. Obligation of parties to contract. The parties to a contract must either perform, or offer to perform, their respective promises, unless such performance is dispensed with or excused under the provisions of this Act or any other law. Promises bind the representatives of the promisors in case of the death of such promisors before performance, unless a contrary intention appears from the contract.
id_1293	3	We have noticed that in the case of fraud, misrepresentation or coercion, the person whose consent is procured on the said basis may insist that the contract be performed and that he be put in the position he could have been in if the representation had not been made. In this context, Section 64 of the Indian Contract Act provides: Consequences of rescission of a voidable contract – When a person at whose option a contract is voidable rescinds it, the other party thereto need not perform any promise therein contained in which he is the promisor. The party rescinding a voidable contract shall, if he had received any benefit thereunder from another party to such contract, restore such benefit, so far as may be, to the person from whom it was received. Section 65 deals with the consequences when an agreement is discovered to be void or becomes void, declaring that any person who has, under such agreement or contract, received any advantage is bound to restore it to the person from whom it was received or make compensation for the same. Section 2(j) of the Indian Contract Act provides that when the contract ceases to be enforceable, it becomes void., The view expressed by the Privy Council in the judgment reported in Mahanth Singh v. U Ba Yi held that a still more startling result is brought about if Section 2(j) is read with Section 65 of the Indian Contract Act, because then every unenforceable contract would become void and each party would be under the obligation of restoring or making compensation for any benefit received, regardless of the performance done by either party. However, the Privy Council noted that not every unenforceable contract is declared void, only those unenforceable by law, meaning not unenforceable by procedural regulation but by substantive law. For example, a contract illegal from its inception, such as a contract with an alien enemy, would be avoided by Section 2(g), and a contract that became illegal during performance, such as a contract with a former alien friend who later became an alien enemy, would be avoided by Section 2(j). A mere failure to sue within the time specified by the statute of limitations or an inability to sue because of provisions of the Civil Procedure Code would not cause a contract to become void., A Full Bench of the Allahabad High Court, while dealing with the effect of inclusion of non‑transferable occupancy rights along with other properties that were transferable in a registered mortgage deed, referred to Section 23 of the Indian Contract Act and held in Dip Narain Singh v. Nageshar Prasad that there is a clear distinction between an agreement which may be forbidden by law and one which is merely declared void. In the former case the legislature penalises or prohibits it; in the latter case it merely refuses to give effect to it. If a void contract has been carried out and consideration has passed, the promisor may not in equity be allowed to go back upon it without restoring the benefit received, but the promise cannot be enforced by a court of law. The transfer of an occupancy tenancy is not actually forbidden by law but is declared void., To the extent that N.N. Global proceeds on the basis that the Stamp Act is a fiscal enactment and the object is to raise revenue, there may not be any serious room for objection. The finding in paragraph‑28 of N.N. Global that the decision in SMS Tea Estates does not lay down the correct law, when it holds that an arbitration agreement in an unstamped commercial contract cannot be acted upon or is rendered unenforceable, is not correct. Paragraph‑29 shows that the Court in N.N. Global proceeded on the basis that the arbitration agreement, being an independent contract, is not chargeable to stamp duty and would not invalidate the arbitration clause, which is contrary to the admitted position that an arbitration agreement, in its own right, is exigible to stamp duty. The reasoning in paragraph‑32, which disapproves Garware on the ground that the arbitration clause would be non‑existent and unenforceable until stamp duty on the substantive contract is paid, is also based on the premise that the arbitration agreement is a separate agreement not exigible to stamp duty, which is not the case in law., Article 5 of the Stamp Act provides the description of instruments and the proper stamp duty: (a) if relating to the sale of a bill of exchange; (b) if relating to the sale of a Government security or share in a company, subject to a maximum of ten rupees, one anna for every Rs 10,000 or part thereof of the value of the incorporated company or other body corporate; (c) if not otherwise provided for, exemptions include agreements or memoranda of agreement for or relating to the sale of goods exclusively, not being a note or memorandum chargeable under No. 43, and tenders to the Central Government for any loan, security or share, which attract eight annas., While the Stamp Act is a fiscal enactment intended to raise revenue, it is a law that must be enforced with full vigour. Section 17 of the Stamp Act specifies the point in time at which stamp duty is to be paid. The duty of the Supreme Court of India is to adopt an interpretation that results in the enforcement of the law rather than allowing the law to be flouted. Sections 33 and 35 of the Stamp Act provide that any person authorised to receive evidence, including a court or an arbitrator, must impound an instrument that is not duly stamped upon forming the opinion that it is not stamped. Section 33(2) requires examination of the instrument in cases of ambiguity. Every public officer before whom such an instrument is produced in the performance of his functions also has the duty to impound the unstamped or insufficiently stamped document after examination, except an officer of the police, who has no authority to impound such a document. Section 35 disables the admission in evidence of an instrument that is not stamped or insufficiently stamped for any purpose, including collateral purposes., Section 35 of the Stamp Act declares that an unstamped or insufficiently stamped document shall not be acted upon. This embargo contrasts with Section 2(h) of the Indian Contract Act, which defines a contract as an agreement enforceable in law, and Section 2(g), which defines a void agreement as one not enforceable. When an agreement is enforceable, it may be enforced through civil courts or public authorities, but both are barred from giving effect to an unstamped instrument. Consequently, an unstamped or insufficiently stamped document cannot be used as evidence for any purpose and cannot be said to be enforceable in law, even though the parties may act upon it. The rights that would otherwise be available if the agreement were stamped remain frozen., We are further reinforced in our view that the views expressed by the Supreme Court of India in Garware, following SMS Tea Estates, represent the correct position in law., The Court drew upon the judgment in United India Insurance Company Limited and another v. Hyundai Engineering & Construction Company Limited. Justice Hrishikesh Roy, in paragraph‑84 of his draft judgment, noted that the issue of stamping was not considered in Hyundai and that the question was whether the matter fell within the excepted matter as the arbitration clause was dependent on whether the insurer accepted liability. The Court in Hyundai held that the denial of liability by the insurer rendered the arbitration clause ineffective and incapable of being enforced. In paragraph‑29 of Garware, the Court found that the arbitration clause contained in the sub‑contract would not exist as a matter of law until the sub‑contract is duly stamped, as held in paragraph‑22. The rationale for finding that an arbitration agreement in an unstamped sub‑contract would not exist was already furnished in paragraph‑22., It is true that in Hyundai the Court was not dealing with the impact of the Stamp Act but with the effect of a clause providing that there would be no arbitration if the insurer disputed liability. The Court held that the denial of liability rendered the arbitration clause ineffective and incapable of being enforced. The finding in Garware that an arbitration clause in an unstamped sub‑contract would not exist as a matter of law was based on the amendment inserting Section 11(6A). The Court noted that the Law Commission Report did not mention SMS Tea Estates and that the Court does not decide any preliminary issue while deciding an application under Section 11. The Court must first impound the agreement under the Stamp Act and, after payment of penalty and duty, may act upon it. It is not possible to bifurcate the arbitration clause; an unstamped agreement is not enforceable until validated in the manner provided by the Stamp Act., In the context of Article 136 of the Limitation Act, 1963, a bench of three learned judges in Dr. Chiranji Lal (D) by Lrs. v. Hari Das (D) by Lrs. dealt with the argument that a final decree for partition passed on 07‑08‑1981 became enforceable only on 25‑05‑1982, when the decree was engrossed on stamp paper. Under Article 136, the period of twelve years begins to run when the decree or order becomes enforceable. The Supreme Court of India held that the Stamp Act is a fiscal measure enacted to secure revenue and is not intended to provide a litigant with a weapon of technicality. The decree becomes enforceable from the date of the decree, not from the date of engrossment on stamp paper, as the furnishing of stamp paper is an uncertain act within the control of a party and cannot suspend the running of the limitation period., The view must be understood in the context of the law of limitation, which should not be defeated by making the enforceability of a decree dependent on the payment of stamp duty. In the present case, the duty of the Supreme Court of India under Sections 33 and 35 of the Stamp Act and its impact on an unstamped or insufficiently stamped agreement containing an arbitration clause is considered apart from the meaning to be attributed to the existence of an arbitration agreement in Section 11(6A) of the Act. The concept of enforceability under the Contract Act has been explained, and the lack of enforceability resulting in the voidness of the contract is emphasized., The work Salmond on Jurisprudence, Twelfth Edition, states that procedural law governs the process of litigation, while substantive law concerns the ends of justice. Procedural law regulates the conduct of courts and litigants in litigation, whereas substantive law determines conduct and relations concerning the matters litigated., The Stamp Act, although a fiscal measure, does not fall within the fold of procedural law. Sections 33 and 35 may apply at a stage when a person approaches a court, but the Act imposes a duty on executants to stamp the instrument at the time of execution, as declared in Section 17, and penalises deviation under Section 62. The Fourth Edition of The Indian Contract and Specific Relief Acts by Pollock and Mulla notes that unenforceable contracts are valid in all respects but may not be sued upon, and such disability may arise for want of registration, expiry of the limitation period, lack of licence, or because the instrument does not bear the requisite stamp duty., An agreement that is unenforceable on account of a substantive law, including the Stamp Act, would not be a contract under Section 2(h) of the Indian Contract Act. Only an enforceable agreement becomes a contract, and only a contract can be an arbitration agreement contemplated in Section 11(6A). An unstamped arbitration agreement cannot be treated as a curable defect; as long as it remains unstamped, it cannot be taken notice of for any purpose under Section 35 of the Stamp Act and remains unenforceable. Section 17 requires stamping before or at the time of execution, and no public officer, court, or arbitrator can permit its use as evidence. Consequently, it is void under Section 2(g). This view is reinforced by Section 2(j), which renders a contract that ceases to be enforceable void., Section 11(6A) contemplates a contract, not merely an agreement, and therefore the agreement must satisfy the requirements of Section 7 of the Indian Contract Act and the other provisions of the Contract Act. A voidable contract under Sections 19 and 19A stands in stark contrast to void contracts. Section 20 provides that a contract is void if the parties are mistaken on a material point. If, in a proceeding under Section 11, the agreement satisfies the requirements of a contract, the Supreme Court of India may treat the agreement as existing and allow the arbitrator to consider the question after pleadings and evidence are presented. When an arbitration agreement is claimed to be voidable, the principle of Kompetenz‑Kompetenz may be applicable, and the Court under Section 11 would be justified in proceeding on the basis that an arbitration agreement exists. Parliament, by amending the Act, employed the words \prima facie\ in Section 8 and used the word \examine\ to ascertain the existence of an arbitration agreement in Section 11(6A). The word \valid\ used in Section 8 is missing in Section 11(6A). An invalid agreement cannot be said to exist in law for the purpose of Section 11(6A)., An invalid document or agreement is often conflated with the word void. Section 20 renders an agreement void where there is a common mistake on a material subject. A contract may be invalid if executed by a person of unsound mind or a minor. The High Court of Karnataka in Imambi v. Khaja Hussain alias Khajasab observed that the word \invalid\ as applied to a contract does not always mean an absolute nullity; a contract may be imperfect and not enforceable but not an absolute nullity that cannot be perfected., An unstamped or insufficiently stamped instrument is liable to be impounded under Section 33 of the Stamp Act and cannot be used as evidence or registered. If, after impounding, duty and penalty are paid and a certificate is endorsed under Section 42(2), the instrument regains life and the bar in Section 35 is removed permanently. Under Section 36, an instrument allowed as evidence without objection qualifies as evidence founding a right, but this is an exception to the rule in Section 35. Therefore, an unstamped or insufficiently stamped instrument represents an agreement that is not enforceable in the sense that civil action is impermissible; it is invalid, not void in the sense of being a dead nullity. An agreement that is unstamped or insufficiently stamped is not enforceable and is void under Section 2(g) of the Indian Contract Act. It can be validated only through the process contemplated in Section 33 and other provisions of the Stamp Act.
id_1293	4	We find the expression validation used in the decision of the Supreme Court of India in Hariom Agrawal v. Prakash Chand Malviya30, which we shall refer to in greater detail later. This necessarily means that the Supreme Court of India would not view it as enforceable, and therefore, not existing in law. In the sense explained, it would not be found as void and therefore not invalid. Thus, in the context of the Arbitration and Conciliation Act, the Stamp Act and the Contract Act, we are of the view that the opinion of the Supreme Court of India in SMS Tea Estates (supra), as reiterated in Garware (supra) and approved in Vidya Drolia (supra), is correct., Section 11(6A) cannot be understood as merely predicating an Arbitration Agreement existing literally. The mere existence of the arbitration agreement for all intents and purposes on the exterior, purporting to project a contract duly executed, may in certain situations be insufficient under Section 11. If, for reasons such as it being unstamped when it is clearly required to be stamped, the agreement cannot be said to exist, then there is no existence in law. While we agree that the Court must be careful in selecting contracts where an arbitration agreement is produced, an unstamped arbitration agreement does not exist in law, and an unstamped contract containing an arbitration agreement would not exist as it has no existence in law., Our learned brother, Justice Hrishikesh Roy, is right in noticing that Section 7 of the Arbitration and Conciliation Act provides for what an arbitration agreement means for the purpose of Part I. However, with great respect, we are unable to agree that a plain reading of Section 7 would make it clear that an arbitration agreement can be even non‑contractual. For clarity, we reproduce Section 7(1) at this juncture: ‘In this Part, arbitration agreement means an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not.’ (Emphasis supplied)., We are inclined to hold that Section 7(1) contemplates an arbitration agreement. The Legislature intends that under the arbitration agreement, the parties must submit disputes which have arisen or may arise between them. The disputes may arise in respect of a defined legal relationship, which can be either contractual or otherwise. Therefore, a legal relationship that is non‑contractual, such as one arising from a statute or a tort, can give rise to disputes. An arbitration agreement is really a contract intended to be enforceable by law. It may be a clause in an agreement, a separate or standalone agreement, and must be in writing as required by Section 7(3). The requirement that the arbitration agreement be in writing is set out in Sections 7(4)(a) to 7(4)(c). It includes a document signed by the parties, an exchange of letters, telex, telegrams or other means of telecommunications that provide a record of the agreement, and an exchange of statements of claim and defence where the existence of the agreement is alleged by one party and not denied by the other. Section 7(5) contemplates an arbitration agreement by incorporation, i.e., a reference in a contract to a document containing an arbitration clause, provided the contract is in writing and the reference makes that clause part of the contract. The true scope of Section 7(5) has been elaborately considered in M.R. Engineers & Contractors Private Limited v. Som Datt Builders Limited31., Section 3(a) of the Stamp Act contemplates that every instrument mentioned in the Schedule, which, not having been previously executed by any person, is executed in India on or after 1 July 1899, is chargeable with duty. Clause (c) of Section 3 also contemplates execution of a document outside India being chargeable with duty. Section 17 of the Stamp Act provides that documents executed in India shall be stamped before or at the time of execution. Justice Hrishikesh Roy would reason that an arbitration agreement, as defined in Section 7, need not be an instrument chargeable to stamp duty because stamp duty is payable only on instruments that are executed. The word ‘executed’ has been defined in the Stamp Act as meaning ‘signed’., Section 7(3)(b) of the Arbitration and Conciliation Act provides that an exchange of letters, telex, telegrams or other means of telecommunication, including electronic communications that provide a record of the agreement, would constitute an arbitration agreement in writing. The proviso (c) to Section 35 of the Stamp Act reads: ‘Where a contract or agreement of any kind is effected by correspondence consisting of two or more letters and any one of the letters bears the proper stamp, the contract or agreement shall be deemed to be duly stamped.’ Thus, the Stamp Act contemplates a contract or agreement being formed through correspondence of two or more letters, and it suffices that any one of the letters bears the proper stamp. If an arbitration agreement is contained in letters and is signed, it would fall within Sections 33 and 35 of the Stamp Act., A bench of two learned judges, in the judgment reported in Govind Rubber Limited v. Louis Dreyfus Commodities Asia Private Limited32, observed that to constitute an arbitration agreement, it need not be signed by all parties. Section 7(3) provides that the arbitration agreement shall be in writing, which is a mandatory requirement. Section 7(4) states that the arbitration agreement shall be in writing if it is a document signed by all parties, but clauses (b) and (c) of Section 7(4) show that a written document may not be signed and still constitute an arbitration agreement. Clause (b) allows an arbitration agreement to be culled out from an exchange of letters, telex, telegrams or other means of telecommunication that provide a record of the agreement. Clause (c) allows an arbitration agreement in the exchange of statements of claim and defence where the existence of the agreement is alleged by one party and not denied by the other. If it can be shown prima facie that the parties are at ad idem, the mere fact of one party not signing the agreement cannot absolve him from liability under the agreement. In the context of e‑commerce, internet purchases, ticket booking and standard forms of contract, where identity is established and there is a record of agreement, an arbitration clause shows ad idem between the parties. Therefore, signature is not a formal requirement under Section 7(4)(b), 7(4)(c) or Section 7(5)., When it comes to Section 7(4)(c), an arbitration agreement in writing is an exchange of statements of claim and defence wherein the existence of an agreement is alleged by one party and not denied by another. There must, however, be an agreement whose allegation remains unrefuted. Since Section 7(1) defines an arbitration agreement as one under which parties submit all or certain disputes which have arisen or will arise, such an agreement must be alleged to exist and the allegation must remain undenied. The formation of such an agreement must be tested against indispensable requirements such as competency to contract and sound mind., All that we are holding is that an arbitration agreement must satisfy the requirements of Section 7(1) and therefore must be an agreement. Without an agreement, there cannot be a reference to arbitration. While Justice Hrishikesh Roy is right in holding that Section 10 of the Contract Act recognises oral agreements and that a written agreement is a sine qua non for a valid arbitration agreement, Section 10, in its second part, provides that nothing contained in the first part affects any law which requires a contract to be made in writing. Section 7(3) of the Arbitration and Conciliation Act, which insists that an arbitration agreement must be in writing, harmonises with Section 10 of the Contract Act., We think that whenever an arbitration agreement, as defined in Section 7, also attracts stamp duty under the Stamp Act, the provisions of Sections 33 and 35 of the Stamp Act would come into play. As held in SMS Tea Estates Private Limited (supra), if an arbitration clause constitutes the arbitration agreement and the instrument in which the clause is contained is unstamped when it is otherwise exigible to stamp duty, then the provisions of Section 33 as well as Section 35 would operate. The court acting under Section 11 is not free to disregard their mandate., An arbitration agreement may be a clause in an instrument that attracts stamp duty. In such a case, the court acting under Section 11 is bound to act under Sections 33 and 35 of the Stamp Act if the instrument is not stamped or insufficiently stamped. If an arbitration agreement is a standalone agreement that attracts duty under the Stamp Act, the same position obtains., In Garware (supra), the Supreme Court referred to paragraph‑59 of Duro Felguera (supra) to find that the mischief sought to be remedied by the insertion of Section 11(6A) was as contained in SBP (supra) and National Insurance (supra). Paragraph‑18 of Garware (supra) referred to paragraph‑12 of SBP (supra) and thereafter held, inter alia, that neither the Statement of Objects and Reasons nor the Law Commission Report mentions SMS Tea Estates. The Supreme Court or the High Court, while deciding a Section 11 application, does not decide any preliminary question that arises between the parties; they only give effect to the provisions of a mandatory enactment intended to protect revenue. SMS Tea Estates took account of the mandatory provisions of the Stamp Act and held them applicable to judicial authorities, including the Supreme Court and the High Court acting under Section 11. A close look at Section 11(6A) shows that when the Supreme Court or the High Court considers an application under Sections 11(4) to 11(6) and encounters an arbitration clause in an agreement or conveyance that is unstamped, it is enjoined by the Stamp Act to first impound the agreement or conveyance and ensure that stamp duty and any penalty are paid before the agreement as a whole can be acted upon. The Stamp Act applies to the agreement or conveyance as a whole, so it is not possible to bifurcate the arbitration clause to give it an independent existence., The Supreme Court, in exercising powers under Section 11(10), prepared a Scheme. Paragraph 2(a) of the Scheme reads: ‘Submission of request. – The request to the Chief Justice under sub‑section (4) or sub‑section (5) or sub‑section (6) of Section 11 shall be made in writing and shall be accompanied by (a) the original arbitration agreement or a duly certified copy thereof.’, Subsequently, an amicus curiae pointed out that under the Scheme the applicant need produce only the certified copy of the arbitration agreement. He relied on judgments of this Court in Jupudi Kesava Rao v. Pulavarthi Venkata Subbarao and others34 and Hariom Agrawal (supra) to contend that even when Sections 33 and 35 are applied by the court at the stage of Section 11, the certified copy cannot be impounded. He argued that in most cases only certified copies are filed, they cannot be impounded, and once the arbitrator is appointed based on the certified copy, the arbitrator is competent under Sections 33 and 35 of the Stamp Act to do the needful. However, Shri Gagan Sanghi pointed out that even in the certified copy the fact of payment of stamp duty must be entered. This aspect was engaged by the Supreme Court in SMS Tea Estates (supra)., The reference to Jupudi Kesava Rao was made to contend that a copy of an instrument cannot be treated as an instrument under the Stamp Act for the purpose of Sections 33 and 35. A copy cannot be impounded under Section 33; therefore Section 33, which mandates impounding of an unstamped instrument, would not apply to a certified copy permitted to be produced under the Scheme. Paragraphs‑13 and 14 of Jupudi Kesava Rao state that the first limb of Section 35 shuts out from evidence any instrument chargeable with duty unless it is duly stamped. The second limb, relating to acting upon the instrument, also shuts out secondary evidence of such instrument. Proviso (a) applies only when the original instrument is actually before the court and the deficiency in stamp with penalty is paid by the party seeking to rely upon the document. Secondary evidence, including oral evidence or a copy, does not fulfil the requirements of the proviso. Section 25 is not concerned with any copy of an instrument; a party can rely only on a document that is an instrument within the meaning of Section 2(14) of the Stamp Act, which defines an instrument as including every document by which any right or liability is created, transferred, limited, extended, extinguished or recorded. There is no scope for inclusion of a copy of a document as an instrument for the purpose of the Stamp Act. Consequently, Section 36 cannot be interpreted to allow secondary evidence of an instrument to have its benefit., In Jupudi Kesava Rao, the appellant relied on oral evidence to prove a lease document that was insufficiently stamped. The High Court held that oral evidence could not be acted upon to prove the lease agreement. The main question was whether secondary evidence of a written agreement to grant a lease was barred under Sections 35 and 36 of the Stamp Act. The Supreme Court observed that Section 35’s second limb, relating to acting upon the instrument, shuts out secondary evidence when the original, admittedly chargeable with duty, is not stamped or insufficiently stamped. Proviso (a) applies only when the original instrument is before the court and the deficiency is paid. There is no scope for inclusion of a copy of a document as an instrument for the purpose of the Stamp Act, and Section 36 does not extend to secondary evidence., In Hariom Agrawal (supra), a bench of three learned judges dealt with the impugned order of the High Court, which held that a photocopy of the original agreement could neither be impounded nor be accepted as secondary evidence. Following Jupudi Kesava Rao, the Court held that an instrument which is not duly stamped can be impounded and, when the required fee and penalty have been paid, it can be taken in evidence under Section 35 of the Stamp Act. Sections 33 or 35 are not concerned with any copy of the instrument; a party can rely only on a document that is an instrument within the meaning of Section 2(14). There is no scope for the inclusion of a copy of the document for the purposes of the Stamp Act. The law is now well settled that a copy of the instrument cannot be validated by impounding and cannot be admitted as secondary evidence under the Stamp Act, 1899., The submission appears to be that the Scheme provides for a certified copy of the arbitration agreement and, if the arbitration agreement is part of a contract that is either not stamped or insufficiently stamped, it cannot be impounded under Section 33 of the Stamp Act and therefore cannot be validated. All that the Court has to look into is whether an arbitration agreement exists., It is true that under the Scheme an applicant can produce either the original or the certified copy. A certified copy is understood in the light of Section 76 of the Indian Evidence Act, 1872, which provides that every public officer having custody of a public document shall, on demand and upon payment of legal fees, give a copy certified as a true copy, dated, signed and, where authorized, sealed. Such copies are called certified copies.
id_1293	5	Section 74 of the Evidence Act defines a public document. It reads: \Public documents. The following documents are public documents: Documents forming the acts or records of the acts of the sovereign authority, of official bodies and tribunals, and of public officers, legislative, judicial and executive, of any part of India or of the Commonwealth or of a foreign country; public records kept in any State of private documents.\, We have already noticed that Section 35 of the Stamp Act interdicts the registration of an instrument unless it is duly stamped., The interplay of the Evidence Act, the Stamp Act and the Registration Act is to be understood as follows: In regard to an instrument which is executed in India and which is liable to be stamped, stamping has to take place before or at the time of the execution of the instrument. It is after the instrument is stamped that it can be presented for registration. Section 17 of the Registration Act provides for documents which are compulsorily registrable. Section 18 permits registration of other documents at the option of the persons concerned. An instrument which is registered necessarily involves it being duly stamped before it is so registered. This result is inevitable having regard to the impact of Section 35 of the Stamp Act. In fact, an instrument which is not duly stamped and which is produced before the Registering Authority would be liable to be impounded under Section 33 of the Stamp Act., Section 74 read with Section 76 of the Evidence Act provides for the issuance of certified copies. Certified copies can be issued only in respect of public documents. Section 62, inter alia, of the Evidence Act defines primary evidence as the document itself produced for the inspection of the court. Section 63 defines secondary evidence as meaning and including, inter alia, certified copies under the provisions hereinafter contained. The provisions hereinafter contained referred to in Section 63 must be understood as Section 74 read with Section 76. A certified copy can be given, no doubt, of public records kept in any State of private documents., Thus, if a sale deed between two private parties comes to be registered, instead of producing the original document, a certified copy of the sale deed may qualify as secondary evidence and a certified copy can be sought for and issued under Section 76 of the Evidence Act. The expression \public records kept in any State of a private document\ in Section 74 is not confined to documents which are registered under the Registration Act. A private document which is kept as a public record may qualify as a public document. What is important is, in view of Section 33 of the Stamp Act, an instrument which is not duly stamped, if it is produced before any public office, would become liable to be impounded and dealt with as provided in the Stamp Act., Assume a case where a contract containing an arbitration clause is registered. If the contract is exigible to stamp duty, registration cannot be done without the instrument being duly stamped. In SMS Tea Estates (supra), the Supreme Court of India held that if a certified copy of the agreement/contract/instrument containing the arbitration clause is produced, it should disclose that the stamp duty has been paid on the original. This is because a certified copy is a true copy of the document. The officer who certifies the document must be the person having custody of the public document. In the case of public records of private documents, a registered document would necessarily involve the document being stamped before registration., The Scheme framed by the Chief Justice permits the production of a duly certified copy to relieve the party of the burden of producing the original, but what is contemplated is only the production of the certified copy which duly discloses the fact of payment of stamp duty. Paragraph 5 of the Scheme reads: \Seeking further information. – The Chief Justice or the person or the institution designated by him under paragraph 3 may seek further information or clarification from the party making the request under this Scheme.\ Therefore, it is not as if a judge dealing with an application under Section 11 of the Act is bereft of authority to seek information or clarification so as to be satisfied that the certified copy satisfies the requirement as laid down in SMS Tea Estates that stamp duty payable has been paid., We have already indicated the scheme of the Evidence Act as it relates to the admission of secondary evidence. The Scheme contemplates, without anything more, the production of a form of secondary evidence, viz., a certified copy of the arbitration agreement. Even if an arbitration agreement between the two parties becomes a public document under Section 74(c) of the Evidence Act on the basis that it is a public record, other than as being a registered document, and on the basis that it was produced before any public office and became a public record of a private document, in keeping with the mandate of Section 33 of the Stamp Act and other connected provisions, such a document would again be impounded unless it was originally stamped as per law. In other words, if a certified copy is produced along with a request under Section 11 of the Act to be treated as a document on which the application under Section 11 could be maintained, it must necessarily comply with the requirement that it declares the stamp duty which has been paid in regard to the original., The production of a copy of an instrument may not lead to the impounding of the copy as Section 33, which mandates impounding, applies only to the original, which alone is treated as an instrument under Section 2(14) of the Stamp Act. The rulings in Jupudi Kesava Rao (supra) and Hariom Agrawal (supra) indicate that a party cannot validate an instrument by producing a copy and having it impounded and paying the duty and penalty. As observed in paragraph 13 of Jupudi Kesava Rao, the Supreme Court of India cannot be invited to act upon a copy of an instrument which is insufficiently stamped. Thus, such a copy, while it cannot be impounded under Section 33, cannot also be acted upon under Section 35., There was considerable debate at the Bar as to the wisdom in relegating the issue of payment of stamp duty to the arbitrator. On the one hand, the learned amicus, supported by counsel for the respondent, argued that, bearing in mind the object of the Act, particularly Section 5 which prohibits judicial interference except as provided, questions relating to non‑payment of stamp duty and the amount to be paid are capable of being dealt with by the arbitrator. The concern of the Supreme Court of India, that the interest of the revenue is protected, is best balanced with the need to fast‑track arbitration proceedings, and they are harmonised by ensuring that the arbitrator will look into the matter and ensure that the interest of the revenue is not jeopardised. On the other hand, the appellant and the intervener pointed out that the Court cannot ignore the mandate of Sections 33 and 35 of the Stamp Act; a view taken by this Court would only encourage evasion of the law, whereas, if the Court follows the mandate of Sections 33 and 35 and adheres to what has been laid down in Garware, the law would be observed and, when the matter reaches the arbitrator, the issue would have been given the quietus. Such a view would also encourage compliance with the Stamp Act., We see merit in the contention of the appellant. Apart from the Court acting in consonance with the law, when it adheres to Sections 33 and 35 of the Stamp Act, where it applies, in our view, under the watchful gaze of the Court, be it the High Court or the Supreme Court of India, the issue relating to stamp duty in a case where no stamp duty has been paid is best resolved., The question would arise as follows: (i) A document containing the arbitration clause may not bear any stamp duty. Even an arbitration agreement may be required to be stamped, as submitted by the learned amicus. If the contract containing the arbitration clause is not duly stamped, does the Court have a duty under Sections 33 and 35 of the Stamp Act? (ii) The background includes the views expressed by this Court about the nature of review undertaken under Section 11, which led to the insertion of Section 11(6A). Parliament intended to curb excessive judicial interference, consistent with the principle in Section 5. Parliament was aware of the view in SMS Tea Estates that if the arbitration agreement was not duly stamped, it had to be impounded. The mandate of the Stamp Act does not conflict with the legislative command in Section 11(6A) to examine whether an arbitration agreement existed. Even if a contract containing an arbitration agreement is not duly stamped, the Court’s duty under Section 11 to follow Sections 33 and 35 remains. (iii) Whether, in view of the power of the Court under Section 11 to find prima facie the existence of the arbitration agreement, it can make a reference and appointment and relegate the issue of impounding the document to the arbitrator. (iv) Any shirking of the statutory duty by the Court under Section 11 to act in tune with the peremptory dictate of the Stamp Act appears unjustifiable. Such abdication is neither contemplated by the legislature nor justifiable as a breach of Section 5. The view that cases under Section 11 would consume more time and hinder timely progress of arbitration does not appeal to us. While the Stamp Act is primarily intended to collect revenue and not to arm a litigant to raise technical pleas, this does not justify the Court ignoring the clear legislative mandate. We find that the view expressed in SMS Tea Estates, reiterated despite the insertion of Section 11(6A), promotes the object of the Stamp Act and is reconcilable with Section 11(6A)., There may be cases where no stamp duty is seen paid. This paves the way for the unambiguous discharge of duty under Sections 33 and 35. There may be cases where it is stamped but a party objects that it is not duly stamped. In such cases, ordinarily the Court must examine the matter with reference to the duty under Section 33(2). If the claim of insufficient stamping appears wholly without foundation, the Court may make the reference on the basis of the existence of an arbitration agreement and leave it open to the arbitrator to exercise the power under Section 33 should it become necessary. This approach does justice to the word \examine\ in Section 33(2) while not ignoring the command of Section 11(6A)., Under the Evidence Act, production of only the original document is permissible as evidence (see Section 62). However, secondary evidence is permissible under Section 63 and certified copies are treated as secondary evidence. Under the Scheme, in a proceeding under Section 11, without following the procedure in the Evidence Act, secondary evidence in the form of a certified copy is permitted. It may be true that since certified copies are permitted to maintain an application under Section 11 and, in law, impounding cannot be done of a certified copy as it is not an instrument, the duty of the Court to examine the matter under Section 33 of the Stamp Act may not exist. However, we have explained what constitutes a certified copy and that, in view of SMS Tea Estates, the stamp duty paid must be indicated in the certified copy and, in appropriate cases, the Court has power, under paragraph 5 of the Scheme, to call for information. It becomes the duty of the Court, where a certified copy is produced, to be satisfied that the production of the certified copy fulfills the legal requirement. While a certified copy that does not show stamp duty paid cannot be impounded under Section 33, it cannot be acted upon under Section 35., The last question is whether, if the contract containing the arbitration clause is unstamped but the arbitration clause itself is stamped, the Court can ignore the fact that the instrument contained in the contract is unstamped. Such an eventuality cannot arise unless there is misrepresentation or fraud, because when the contract is produced it will be dealt with under Section 33 of the Stamp Act among other provisions., The learned amicus points out that the arbitration agreement is usually contained as a clause in a larger agreement. The contract would consist of the document containing the arbitration agreement. This raises the question whether the arbitration agreement can be treated as a separate contract, and even if the main contract is not stamped, it suffices if the arbitration agreement alone is stamped., In N.N. Global (supra), the Court proceeded to impound the main contract which was the work order. The doctrine that the arbitration agreement is a distinct and separate agreement is well established. The doctrine of Kompetenz‑Kompetenz is enshrined in Section 16 of the Arbitration and Conciliation Act, 1996. Section 16 articulates that the arbitral tribunal may rule on its jurisdiction including objections relating to the validity of the arbitration agreement and its existence, and for that purpose an arbitration clause forming part of the contract is to be treated as an agreement independent from the other terms of the contract. Section 16(1)(b) declares that despite the tribunal finding that the contract was null and void, it would not invalidate the arbitration clause. The principle that an arbitration agreement is a separate and distinct agreement indicates that it would have no play in the context of the duty of a Court under Sections 33 and 35 of the Stamp Act. The efficacy of the arbitration clause is preserved so that termination or non‑performance of the contractual obligations does not deprive the parties of their rights and the power of the arbitrator to adjudicate disputes falling within the arbitration clause. The underlying principle is to create a mechanism that survives the contract so that disputes are resolved. Thus, the rescission of the main contract would not result in the death of the arbitration clause. The arbitration clause may be a collateral term. The arbitration agreement exists and can be acted upon irrespective of whether the main substantive contract is valid. Ordinarily, the invalidity of the main agreement may not affect the arbitration clause., The learned amicus would urge that in N.N. Global the Court erred in finding that the arbitration agreement is not required to be stamped. If so, the arbitration clause, being the arbitration agreement, would require stamping. It is inconceivable that a contract containing an arbitration clause would be stamped only to cover the liability in regard to the arbitration agreement and leave the main agreement unstamped when it is required to be stamped. Acceptance of such a view would plainly encourage parties to contravene the mandate of the Stamp Act. Therefore, even proceeding on the basis that an arbitration agreement is a separate agreement would be of no avail where the arbitration clause and the main agreement are both exigible to stamp duty., As found in SMS Tea Estates, there is a bar to the use of an instrument which is not stamped or insufficiently stamped for any purpose (unlike Section 49 of the Registration Act which allows an unregistered document to be used to prove a collateral transaction). An unstamped instrument in which an arbitration clause is part of cannot be allowed to be used, as it would be allowing the instrument to be used to establish a collateral transaction. This proceeds on the basis that an arbitration agreement is a collateral term and may have a distinct existence separate from the main agreement., The view taken in SMS Tea Estates, as followed in Garware and by the Bench in Dharmaratnakara Rai Bahadur Arcot Narainswamy Mudaliar Chattram and other Charities v. Bhaskar Raju and Brothers and others, regarding the effect of an unstamped contract containing an arbitration agreement and the steps to be taken by the Court, represents the correct position in law. N.N. Global was wrongly decided when it held to the contrary and overruled SMS Tea Estates and Garware., An instrument which is exigible to stamp duty may contain an arbitration clause and, if it is not stamped, cannot be said to be a contract enforceable under Section 2(h) of the Indian Contract Act and is not enforceable under Section 2(g). An unstamped instrument, when required to be stamped, being not a contract and not enforceable in law, therefore cannot exist in law. Accordingly, we approve of paragraphs 22 and 29 of Garware. To this extent, we also approve of Vidya Drolia insofar as the reasoning in paragraphs 22 and 29 of Garware is approved., The true intention behind the insertion of Section 11(6A) in the Arbitration and Conciliation Act was to confine the Court, acting under Section 11, to examine and ascertain the existence of an arbitration agreement., The Scheme permits the Court, under Section 11 of the Act, to act on the basis of the original agreement or on a certified copy. The certified copy must clearly indicate the stamp duty paid as held in SMS Tea Estates. If it does not, the Court should not act on such a certified copy., If the original instrument is produced and it is unstamped, the Court acting under Section 11 is duty‑bound to act under Section 33 of the Stamp Act. When it does so, the other provisions relating to payment of duty and penalty would culminate in the certificate under Section 42(2) of the Stamp Act, and the Court will be free to process the application as per law., An arbitration agreement within the meaning of Section 7 of the Act, which attracts stamp duty and is not stamped or insufficiently stamped, cannot be acted upon in view of Section 35 of the Stamp Act unless, after impounding and payment of the requisite duty, a certificate is provided under Section 42 of the Stamp Act., We further hold that the provisions of Sections 33 and the bar under Section 35 of the Stamp Act, applicable to instruments chargeable to stamp duty under Section 3 read with the Schedule, would render the arbitration agreement contained in such instrument as non‑existent in law unless the instrument is validated under the Stamp Act., In a given case, the Court has power under paragraph 5 of the Scheme to seek information from a party, even regarding stamp duty., We make it clear that we have not pronounced on the matter with reference to Section 9 of the Act. The reference to the Constitution Bench shall stand answered accordingly., We record our deep sense of appreciation for the efforts of Shri Gourab Banerjee, learned senior counsel who has ably assisted the Supreme Court of India as amicus., Rastogi, J.
id_1293	6	The Bench followed the reasoning and upholding of the decision in SMS Tea Estates Private Limited (supra), and held: A close look at Section 11(6‑A) would show that when the Supreme Court or the High Court considers an application under Sections 11(4) to 11(6), and comes across an arbitration clause in an agreement or conveyance which is unstamped, it is enjoined by the provisions of the Stamp Act to first impound the agreement or conveyance and see that stamp duty and penalty (if any) is paid before the agreement, as a whole, can be acted upon. It is important to remember that the Stamp Act applies to the agreement or conveyance as a whole. Therefore, it is not possible to bifurcate the arbitration clause contained in such agreement or conveyance so as to give it an independent existence, as has been contended for by the respondent. The independent existence that could be given for certain limited purposes, on a harmonious reading of the Registration Act, 1908 and the Arbitration and Conciliation Act, 1996 has been referred to by Raveendran, J. in SMS Tea Estates when it comes to an unregistered agreement or conveyance. However, the Stamp Act, containing no such provision as is contained in Section 49 of the Registration Act, 1908, has been held by the said judgment to apply to the agreement or conveyance as a whole, which would include the arbitration clause contained therein. It is clear, therefore, that the introduction of Section 11(6‑A) does not, in any manner, deal with or get over the basis of the judgment in SMS Tea Estates, which continues to apply even after the amendment of Section 11(6‑A)., When an arbitration clause is contained in a contract, it is significant that the agreement only becomes a contract if it is enforceable by law. We have seen how, under the Stamp Act, an agreement does not become a contract, namely, that it is not enforceable in law, unless it is duly stamped. Therefore, even a plain reading of Section 11(6‑A), when read with Section 7(2) of the Arbitration and Conciliation Act, 1996 and Section 2(h) of the Indian Contract Act, 1872, would make it clear that an arbitration clause in an agreement would not exist when it is not enforceable by law. This is also an indicator that SMS Tea Estates has, in no manner, been touched by the amendment of Section 11(6‑A)., The decision in Garware Wall Ropes Limited (supra) was cited in approval by a three‑Judge Bench in the case of Vidya Drolia and Others (supra) wherein it was held: We now proceed to examine the question, whether the word existence in Section 11 merely refers to contract formation (whether there is an arbitration agreement) and excludes the question of enforcement (validity) and therefore the latter falls outside the jurisdiction of the Supreme Court of India at the referral stage. Jurisprudentially and textualism it is possible to differentiate between existence of an arbitration agreement and validity of an arbitration agreement. Such interpretation can draw support from the plain meaning of the word existence. However, it is equally possible, jurisprudentially and on contextualism, to hold that an agreement has no existence if it is not enforceable and not binding. Existence of an arbitration agreement presupposes a valid agreement which would be enforced by the Supreme Court of India by relegating the parties to arbitration. Legalistic and plain meaning interpretation would be contrary to the contextual background including the definition clause and would result in unpalatable consequences. A reasonable and just interpretation of existence requires understanding the context, the purpose and the relevant legal norms applicable for a binding and enforceable arbitration agreement. An agreement evidenced in writing has no meaning unless the parties can be compelled to adhere and abide by the terms. A party cannot sue and claim rights based on an unenforceable document. Thus, there are good reasons to hold that an arbitration agreement exists only when it is valid and legal. A void and unenforceable understanding is no agreement to do anything. Existence of an arbitration agreement means an arbitration agreement that meets and satisfies the statutory requirements of both the Arbitration and Conciliation Act, 1996 and the Indian Contract Act, 1872 and when it is enforceable in law., We would proceed to elaborate and give further reasons: In Garware Wall Ropes Ltd., the Supreme Court of India had examined the question of stamp duty in an underlying contract with an arbitration clause and in the context had drawn a distinction between the first and second part of Section 7(2) of the Arbitration and Conciliation Act, 1996, albeit the observations made and quoted above with reference to existence and validity of the arbitration agreement being apposite and extremely important, we would repeat the same by reproducing paragraph 29 thereof: This judgment in Hyundai Engg. case is important in that what was specifically under consideration was an arbitration clause which would get activated only if an insurer admits or accepts liability. Since on facts it was found that the insurer repudiated the claim, though an arbitration clause did exist, so to speak, in the policy, it would not exist in law, as was held in that judgment, when one important fact is introduced, namely, that the insurer has not admitted or accepted liability. Likewise, in the facts of the present case, it is clear that the arbitration clause that is contained in the subcontract would not exist as a matter of law until the subcontract is duly stamped, as has been held by us above. The argument that Section 11(6‑A) deals with existence, as opposed to Section 8, Section 16 and Section 45, which deal with validity of an arbitration agreement is answered by the Supreme Court of India's understanding of the expression existence in Hyundai Engg. case, as followed by us. Existence and validity are intertwined, and arbitration agreement does not exist if it is illegal or does not satisfy mandatory legal requirements. Invalid agreement is no agreement., Later, a three‑Judge Bench in M/s. N.N. Global Mercantile Private Limited (supra) held that in arbitration jurisprudence, an arbitration agreement is a distinct and separate agreement, which is independent from the substantive commercial contract in which it is embedded. This three‑Judge Bench made a reference to the Constitution Bench, as it expressed its disagreements with the view expressed in SMS Tea Estates Private Limited (supra), Garware Wall Ropes Limited (supra), and Vidya Drolia and Others (supra). It held: In our view, there is no legal impediment to the enforceability of the arbitration agreement, pending payment of Stamp Duty on the substantive contract. The adjudication of the rights and obligations under the Work Order or the substantive commercial contract would however not proceed before complying with the mandatory provisions of the Stamp Act. In our view, the decision in SMS Tea Estates does not lay down the correct position in law on two issues i.e. (i) that an arbitration agreement in an unstamped commercial contract cannot be acted upon, or is rendered unenforceable in law; and (ii) that an arbitration agreement would be invalid where the contract or instrument is voidable at the option of a party, such as under Section 19 of the Indian Contract Act, 1872. We hold that since the arbitration agreement is an independent agreement between the parties, and is not chargeable to payment of stamp duty, the non‑payment of stamp duty on the commercial contract would not invalidate the arbitration clause, or render it unenforceable, since it has an independent existence of its own. The view taken by the Supreme Court of India on the issue of separability of the arbitration clause on the registration of the substantive contract ought to have been followed even with respect to the Stamp Act. The non‑payment of stamp duty on the substantive contract would not invalidate even the main contract. It is a deficiency which is curable on the payment of the requisite Stamp Duty., It also doubted the correctness of the view taken in SMS Tea Estates Private Limited (supra), which was approved in Garware Wall Ropes Limited (supra) and Vidya Drolia and Others (supra), and held: We are of the considered view that the finding in SMS Tea Estates and Garware that the non‑payment of stamp duty on the commercial contract would invalidate even the arbitration agreement, and render it non‑existent in law, and unenforceable, is not the correct position in law. In view of the finding in paragraph 146 and 147 of the judgment in Vidya Drolia by a coordinate bench, which has affirmed the judgment in Garware, the aforesaid issue is required to be authoritatively settled by a Constitution bench of the Supreme Court of India., As the Benches in both M/s. N.N. Global Mercantile Private Limited (supra) and Vidya Drolia and Others (supra) are of equal strength, this Constitution Bench has been called upon to authoritatively rule on the issue. To adjudicate the issue, the Supreme Court of India at first needs to examine whether the requirements under the Indian Stamp Act, 1899 at pre‑referral stage are required to be examined for appointment of Arbitrator under Section 11(6A) of the Arbitration and Conciliation Act, 1996., Mr. Gaurab Banerjee, learned senior counsel, who appears as Amicus Curiae to assist the Supreme Court of India, submits that the intention of the Arbitration and Conciliation Act, 1996 and the later amendments made from time to time were to streamline the process and judicial intervention in arbitration proceedings adds significantly to the delay in the arbitration process and that negates the benefit of arbitration. The Arbitration & Conciliation (Amendment) Act, 2015 (hereinafter being referred to as the 2015 Amendment) was introduced to emphasize the speedy disposal of cases relating to arbitration with minimal court interference., Mr. Banerjee submits that so far as the scope and ambit of Section 11 is concerned, it is only to fill the gap and the Supreme Court of India is merely functioning as an appointing authority where the parties fail to appoint an Arbitrator. After the insertion of Section 11(6A) (2015 Amendment), the legislative policy and purpose are essentially to minimize the Supreme Court of India's intervention at the stage of appointing the Arbitrator and with this intention, Section 11(6A) has been incorporated which ought to be respected., Mr. Banerjee further submits that the scope of the Supreme Court of India should be circumscribed to confine to the examination, prima facie, of the formal existence of the arbitration agreement at the stage of contract formation, including whether the agreement is in writing and the core contractual ingredients qua the formation of the agreement are fulfilled. On rare occasions, if a question is being raised by the parties, to some extent, the Supreme Court of India may examine the subject matter of dispute as arbitrable but that too as an exception. At the same time, so far as the Indian Stamp Act, 1899 is concerned, it is only a fiscal measure enacted to secure revenue of the State in certain classes of instruments but that may not be invoked to arm a litigant with a weapon of technicality to meet the case of his/her opponent. Once the object of the revenue is secured according to law, the party staking his claim in the instrument will not be defeated on the ground of the initial defect in the instrument., Mr. Banerjee further submits that even non‑payment of stamp duty is a curable defect and this defect can be cured at any stage before the instrument is admitted into evidence by the Arbitral Tribunal. If the insufficiency of stamp or unduly stamped is being examined/adjudicated at the pre‑referral stage by the Supreme Court of India under Section 11, it would be nothing but to encourage parasitical challenges and dilatory tactics in resisting reference to arbitration. The natural solution is to appoint the Arbitrator and to allow the dispute resolution proceedings to commence and permit the Arbitral Tribunal to fulfil its duty under the Arbitration and Conciliation Act, 1996. There is no reason why the Arbitral Tribunal cannot prevent the evasion of stamp duty., It is also brought to our notice that at the time of submitting an application under Section 11 at the pre‑referral stage, the parties are not under an obligation to file an original arbitration agreement and since the copy of the arbitration agreement is to be annexed with the application, in true sense, it is not an instrument as being contemplated under Section 2(14) of the Indian Stamp Act, 1899, particularly at the pre‑referral stage, the question of invoking Sections 33 or 35 of the Indian Stamp Act, 1899 is not available to be invoked. In support of submission Mr. Banerjee has placed reliance on the judgment of the Supreme Court of India reported in Jupudi Kesava Rao v. Pulavarthi Venkata Subbarao and Others which has been later followed by the Supreme Court of India in Hariom Agrawal v. Prakash Chand Malviya., Taking assistance thereof, Mr. Banerjee submits that Sections 33 or 35 are not concerned with any copy of the instrument and there is no scope for the inclusion of the copy of the document for the purpose of the Indian Stamp Act, 1899. The copy of the instrument within the meaning of Section 2(14) of the Indian Stamp Act, 1899 cannot be validated by impounding and it cannot be admitted as secondary evidence under the Indian Stamp Act, 1899., Mr. Banerjee further submits that the very question raised for consideration of the Supreme Court of India as to whether the arbitral agreement is valid or is in existence in law, is not open to be examined at the pre‑referral stage for the reason that original instrument is not on record (arbitral agreement) and a conjoint reading of Sections 33 and 35 is not concerned with any copy of the instrument and the party can only be allowed to rely on the document in evidence which is an instrument within the meaning of Section 2(14) and the validity of the document is always open to be examined at the post‑referral stage by the Arbitrator/Arbitral Tribunal in its jurisdiction vested in Section 16 of the Arbitration and Conciliation Act, 1996., Mr. Gagan Sanghi, learned counsel for the appellant, submits that Section 35 of the Indian Stamp Act, 1899 bars admission of unduly stamped instrument in evidence for any purpose and also acting upon it and it was held by the Supreme Court of India in Government of Andhra Pradesh and Others v. P. Laxmi Devi (Smt.) that Section 33 of the Indian Stamp Act, 1899 is mandatory and unstamped document must be impounded. Even assuming that stamp duty is not payable on an arbitration agreement under the Indian Stamp Act, 1899, when arbitration agreement is contained as a clause in an instrument on which stamp duty is payable, such arbitration agreement as an instrument, attracts the bar of Section 35 of the Indian Stamp Act, 1899., Mr. Sanghi further submits that separation of agreement from the substantive contract is nothing but a legal fiction created by Section 16 of the Arbitration and Conciliation Act, 1996 and it cannot be an exception to Section 35 of the Indian Stamp Act, 1899., Mr. Sanghi further submits that the Doctrine of Separability and Kompetenz‑Kompetenz has no bearing on the issue of enforceability of an arbitration agreement when proper stamp duty is not paid on the instrument containing the arbitration agreement and relied upon the judgment of the UK Supreme Court in Enka Insaat Ve Sanayi AS v. OOO Insurance Company Chubb where it was held that an arbitration clause is nonetheless part of bundle of rights and obligations recorded in the contractual document and according to him, the issue of stamping is to be looked into at the very threshold, even if it is in exercise of Section 11(6A), i.e., at the time of pre‑arbitral stage with respect to appointment of arbitrator. According to him, an instrument would exist in law only when it is enforceable and existence defined in Section 11(6A) of the Arbitration and Conciliation Act, 1996 in respect of an arbitration agreement, has to be a valid enforceable agreement and it is always open to examine the issue of non‑stamping or of insufficiently stamped at the initial/pre‑referral stage itself and further highlighting three modes as provided in M/s. N.N. Global Mercantile Private Limited (supra) i.e. impounding, payment of stamp duty and appointment of arbitrator, on an application filed under Section 11 of the Arbitration and Conciliation Act, 1996, the Supreme Court of India is certainly acting upon the arbitration clause which is contended to be barred by the clear expression of Section 35 of the Indian Stamp Act, 1899 and an Agreement, unless enforceable by law, cannot be termed to be in existence under Section 11(6A) of the Arbitration and Conciliation Act, 1996., Ms. Malvika Trivedi, learned senior counsel, who appears for the intervenor in I.A. No.18516 of 2022, submits that the regimes of the Indian Stamp Act, 1899 and the Registration Act, 1908 are completely different. M/s. N.N. Global Mercantile Private Limited (supra) wrongly applied the principles of registration of a document to the requirement of stamping a document. While the former is a curable defect, the latter determines the very existence and completion of a document/instrument. In the absence of registration, an instrument shall remain in existence but without stamping, the instrument is incomplete/inchoate., Ms. Trivedi further submits that the Indian Stamp Act, 1899 envisages the payment of stamp duty, failing which the instrument, according to her, cannot be acted upon for any purpose and there is no ambiguity in the language of the Statute and we have to follow the golden principles of interpretation of the Statute., Ms. Trivedi further submits that the powers of the Supreme Court of India under different provisions of law as well as the restrictions created in the Indian Stamp Act, 1899 apply to the proceedings conducted in accordance with Section 9 of the Arbitration and Conciliation Act, 1996 and submits that even if the arbitration clause stands severed, the Supreme Court of India will have to reach a prima facie conclusion as to whether the substantive contract which contained the clause of arbitration is enforceable in law before granting interim measures invoking Section 9 of the Arbitration and Conciliation Act, 1996., Mr. Debesh Panda, learned counsel for the Intervenor in I.A. No.199969 of 2022 submits that Part I of the Arbitration and Conciliation Act, 1996 deals with Sections 8, 9 and 11, whereas Section 45 is dealt within Part II. Section 45 has been recognized as a provision under Part II which is a complete code. The expression unless it finds in Section 45 was interpreted by majority in Shin‑Etsu Chemical Co. Ltd. v. Aksh Optifibre Ltd. and Another as a consideration on a prima facie basis. In 2019, Parliament amended Section 45 by substituting the expression unless it finds with unless it prima facie finds, that brings the statute in line with the position settled in Shin‑Etsu (supra). In this background, the Indian Stamp Act, 1899 merely creates a temporary imposition till the stamp duty is recovered, with or without penalty. The affliction only attaches to the instrument and not the transaction., Mr. K. Ramakanth Reddy, learned senior counsel for respondent No.1 took us through the relevant Lok Sabha debates before the enactment of the Arbitration and Conciliation Act, 1996 and taking assistance thereof submits that the provisions of the Arbitration and Conciliation Act, 1996, the Indian Stamp Act, 1899 and the Indian Contract Act, 1872 (hereinafter being referred to as the Indian Contract Act, 1872) have to be harmonized. Section 17 of the Indian Stamp Act, 1899 has to be read with Section 31 of the Indian Stamp Act, 1899. The plain language of Section 7 of the Arbitration and Conciliation Act, 1996 does not require that the parties are under an obligation to stamp the agreement. The legislative intention would be defeated, if the Supreme Court of India insists on non‑core technical requirements such as stamps, seals and originals for the purpose of acting upon the arbitration agreement at a pre‑arbitration stage for appointment of an arbitrator invoking power under Section 11(6A) of the Arbitration and Conciliation Act, 1996., Learned counsel for the respondents further submits that in the instant facts of the case, an application was filed under Section 8 for reference of disputes to arbitration and it was not maintainable under Section 34 of the Maharashtra Stamp Act, 1958 which is almost pari materia to the Indian Stamp Act, 1899. The work order being an unstamped document could not be received in evidence for any purpose, or acted upon, unless it is duly stamped. In consequence thereof, the arbitration clause in the unstamped agreement also could not be acted upon or enforced since the arbitration clause would have no existence in law, unless the applicable stamp duty (and penalty, if any) is paid on the work order and placed reliance on the judgment of the Supreme Court of India in Garware Wall Ropes Limited (supra)., Learned counsel further submits that the High Court of India, while relying on the application under Section 8 had enforced a non‑existent arbitration clause which is in violation of Section 34 of the Maharashtra Stamp Act, 1958 and further contended that the respondent had not indicated its willingness to pay the stamp duty, even though, at later stage, an objection was raised and, therefore, no justification arises to grant any further opportunity to now pay the stamp duty under the clause of arbitration., We have heard learned counsel for the parties and with their assistance perused the material available on record and before delving into the reference, we feel apposite to discuss the statutory provisions related to the reference. III. Requirements under the Indian Stamp Act, 1899 31. The Indian Stamp Act, 1899 is a fiscal statute laying down the law relating to tax levied in the form of stamps on instruments recording transactions. The stamp duties on instruments specified in Entry 91 of List I (Union List) of Schedule VI of the Constitution of India (viz. Bills of Exchange, cheques, promissory notes, bills of lading, letters of credit, policies of insurance, transfer of shares, debentures, proxies and receipts) are levied by the Union Government. Similarly, the stamp duties on instruments other than those mentioned in Entry 91 of the Union List above are levied by the States as per Entry 63 of List II (State List) of Schedule VII. Provisions other than those relating to rates of duty fall within the legislative power of both the Union and the States by virtue of Entry 44 of List III (Concurrent List). However, the stamp duties on all the instruments are collected and kept by the concerned States., The term Instrument has been defined under Section 2(14) of the Indian Stamp Act, 1899 and the Instrument chargeable to Duty is provided under Section 3 whereas Section 17 provides that all instruments chargeable with duty and executed by any person in India has to be stamped., Sections 2(14), 3 and 17 of the Indian Stamp Act, 1899 are extracted hereunder: 2(14) Instrument. Instrument includes every document by which any right or liability is, or purports to be, created, transferred, limited, extended, extinguished or recorded: 3. Instruments chargeable with duty. Subject to the provisions of this Act and the exemptions contained in Schedule I, the following instruments shall be chargeable with duty of the amount indicated in that Schedule as the proper duty respectively, that is to say (a) every instrument mentioned in that Schedule which, not having been previously executed by any person, is executed in [India] on or after the first day of July, 1899; (b) every bill of exchange [payable otherwise than on demand] or promissory note drawn or made out of [India] on or after that day and accepted or paid, or presented for acceptance or payment, or endorsed, transferred or otherwise negotiated, in [India]; and (c) every instrument (other than a bill of exchange, or promissory note) mentioned in that Schedule, which, not having been previously executed by any person, is executed out of [India] on or after that day, relates to any property situate, or to any matter or thing done or to be done, in [India] and is received in [India]: Provided that no duty shall be chargeable in respect of (1) any instrument executed by, or on behalf of, or in favour of, the Government in cases where, but for this exemption, the Government would be liable to pay the duty chargeable in respect of such instrument; (2) any instrument for the sale, transfer or other disposition, either absolutely or by way of mortgage or otherwise, of any ship or vessel, or any part, interest, share or property of or in any ship or vessel registered under the Merchant Shipping Act, 1894, Act No. 57 & 58 Vict. c. 60 or under Act XIX of 1838 or the Indian Registration of Ships Act, 1841, (CX of 1841) as amended by subsequent Acts., Instrument as defined under Section 2(14) of the Indian Stamp Act, 1899 includes every document by which any right or liability is, or purports to be, created, transferred, limited, extended, extinguished, or recorded. The term Instrument as defined under Section 2(14) refers to the original instrument and not a copy or a duly certified copy of the same. It is only on production of the original instrument that the deficiencies in the stamp duty/penalty can be paid to validate the same., Chapter IV (Section 33 to Section 48) of the Indian Stamp Act, 1899 titled Instruments not duly stamped provides for the procedure to be followed when an instrument which ought to have been stamped is not stamped., Section 33 of the Indian Stamp Act, 1899 provides for Examination and impounding of instruments. Under sub‑section (1) of Section 33, every person having by law or consent of parties authority to receive evidence, and every person in charge of a public office, except an officer of police, before whom any instrument, chargeable, in his opinion, with duty, is produced or comes in the performance of his functions, shall, if it appears to him that such instrument is not duly stamped, impound the same. Section 33(2) of the Indian Stamp Act, 1899 provides that every instrument chargeable with duty shall be examined by such person as explained in sub‑section (1), in order to ascertain whether it is stamped with a stamp of the value and description required by the law in force in India when such instrument was executed or first executed. The definition of duly stamped as contained in Section 2(11) as applied to an instrument means that the instrument bears an adhesive or impressed stamp of not less than the proper amount and that such stamp has been affixed or used in accordance with law for the time being in force in India., A plain reading of Section 33 of the Indian Stamp Act, 1899 thus explains that when an instrument or a document is produced before the authority, it is the duty of such authority to examine whether the instrument is duly stamped or not, and if it is found that the instrument is not duly stamped under Section 33(2), the concerned authority shall impound the said instrument., Section 34 of the Indian Stamp Act, 1899 provides a discretion to the concerned officer that if any receipt chargeable with a duty not exceeding ten naye paise is tendered to or produced before them unstamped in the course of the audit of any public account, such officer may in their discretion, instead of impounding the instrument, require a duly stamped receipt to be substituted therefore., A plain reading of Section 35 of the Indian Stamp Act, 1899 suggests that an inadmissible instrument because of being unstamped or insufficiently stamped may be made admissible if the relevant stamp duty and a penalty is paid later. This shows that the requirement under Section 35 is not rigid, and can be rectified even at a later stage. An unstamped or insufficiently stamped instrument is not completely invalid, and it can be made valid and admissible in evidence after fulfilling the conditions prescribed in the proviso to Section 35., Section 37 of the Indian Stamp Act, 1899 deals with admission of improperly stamped instruments. It provides that the State Government may make rules providing that, where an instrument bears a stamp of sufficient amount but of improper description, it may, on payment of the duty with which the same is chargeable, be certified to be duly stamped, and any instrument so certified shall then be deemed to have been duly stamped as from the date of its execution., Section 38 of the Indian Stamp Act, 1899 provides for the procedure for how the instruments impounded are to be dealt with.
id_1293	7	Sub-Section (1) of Section 38 provides that when the person impounding an instrument under Section 33 admits such instrument in evidence upon payment of a penalty as provided by Section 35 or of duty as provided by Section 37, he shall send to the Collector an authenticated copy of such instrument, together with a certificate in writing, stating the amount of duty and penalty levied in respect thereof, and shall send such amount to the Collector, or to such person as he may appoint in this behalf., Sections 39 and 40 of the Act, 1899 provide a procedure of exercising discretion by the Collector to either refund, certify the instrument as duly stamped, or collect the stamp duty., A plain reading of Sections 33, 35 and 2(14) of the Act, 1899 clearly demonstrates that the instrument which is not duly stamped can be impounded and when the required fee and penalty has been paid, the said instrument can be taken as evidence under Section 35 of the Act, 1899. But, at the same time, Sections 33 and 35 are not concerned with any copy of the instrument and party can be allowed to rely on the document which is an instrument within the meaning of Section 2(14) of the Act, 1899., This Court had an occasion to consider the scope and ambit of Sections 33, 35 and 36 of the Act, 1899 and Section 63 of the Evidence Act, 1872 in Jupudi Kesava Rao (supra) and it was held that:, 13. The first limb of Section 35 clearly shuts out from evidence any instrument chargeable with duty unless it is duly stamped. The second limb of it which relates to acting upon the instrument will obviously shut out any secondary evidence of such instrument, for allowing such evidence to be let in when the original admittedly chargeable with duty was not stamped or insufficiently stamped, would be tantamount to the document being acted upon by the person having by law or authority to receive evidence. Proviso (a) is only applicable when the original instrument is actually before the Supreme Court of India and the deficiency in stamp with penalty is paid by the party seeking to rely upon the document. Clearly secondary evidence either by way of oral evidence of the contents of the unstamped document or the copy of it covered by Section 63 of the Indian Evidence Act would not fulfil the requirements of the proviso which enjoins upon the authority to receive nothing in evidence except the instrument itself. Section 25 is not concerned with any copy of an instrument and a party can only be allowed to rely on a document which is an instrument for the purpose of Section 35. Instrument is defined in Section 2(14) as including every document by which any right or liability is, or purports to be created, transferred, limited, extended, extinguished or recorded. There is no scope for inclusion of a copy of a document as an instrument for the purpose of the Stamp Act., 14. If Section 35 only deals with original instruments and not copies, Section 36 cannot be so interpreted as to allow secondary evidence of an instrument to have its benefit. The words 'an instrument' in Section 36 must have the same meaning as that in Section 35. The legislature only relented from the strict provisions of Section 35 in cases where the original instrument was admitted in evidence without objection at the initial stage of a suit or proceeding. In other words, although the objection is based on the insufficiency of the stamp affixed to the document, a party who has a right to object to the reception of it must do so when the document is first tendered. Once the time for raising objection to the admission of the documentary evidence is passed, no objection based on the same ground can be raised at a later stage. But this in no way extends the applicability of Section 36 to secondary evidence adduced or sought to be adduced in proof of the contents of a document which is unstamped or insufficiently stamped., 44. This view has been affirmed by a three‑Judge Bench of the Supreme Court of India in Hariom Agrawal (supra) wherein it has been held as under:, 10. It is clear from the decisions of the Supreme Court of India and a plain reading of Sections 33, 35 and 2(14) of the Act that an instrument which is not duly stamped can be impounded and when the required fee and penalty has been paid for such instrument it can be taken in evidence under Section 35 of the Stamp Act. Sections 33 or 35 are not concerned with any copy of the instrument and party can only be allowed to rely on the document which is an instrument within the meaning of Section 2(14). There is no scope for the inclusion of the copy of the document for the purposes of the Stamp Act. Law is now no doubt well settled that copy of the instrument cannot be validated by impounding and this cannot be admitted as secondary evidence under the Stamp Act, 1899., 45. Law on the subject is well settled that duly certified copy or photocopy of the alleged instrument cannot be validated by impounding and this cannot be admitted in evidence under the Act, 1899. It leads to the conclusion that the deficiency in an instrument, whether it is unduly stamped or insufficiently stamped, can be rectified through a procedure as prescribed under the Act, 1899. It clearly indicates that the requirement under the Act can indeed be fulfilled even after the time when the instrument was executed. The requirement under the Act is not rigid or strict, so as to make the instrument invalid at the first instance., 46. It also shows that the purpose of the Act, 1899 is not to declare an instrument as completely invalid if it is unstamped or insufficiently stamped, but to collect the stamp duty on each instrument. The object of the Act, 1899 is to secure revenue for the state., 47. This Court, in the case of Hindustan Steel Ltd. v. Messrs Dilip Construction Company, dealt with the object of the Act, 1899 and held:, 7. The Stamp Act is a fiscal measure enacted to secure revenue for the State on certain classes of instruments: It is not enacted to arm a litigant with a weapon of technicality to meet the case of his opponent. The stringent provisions of the Act are conceived in the interest of the revenue once that object is secured according to law, the party staking his claim on the instrument will not be defeated on the ground of the initial defect in the instrument. Viewed in that light the scheme is clear. Section 35 of the Stamp Act operates as a bar to an unstamped instrument being admitted in evidence or being acted upon; Section 40 provides the procedure for instruments being impounded, sub‑section (1) of Section 42 provides for certifying that an instrument is duly stamped, and sub‑section (2) of Section 42 enacts the consequences resulting from such certification., 48. The Bench, after explaining that the scope of the Act, 1899 is to secure revenue for the state and not to be used as means to harass the litigant, concluded that unstamped instruments can be acted upon after payment of duty and penalty. Initial defects can be cured and it is never the intention of the legislature to treat an initially unstamped instrument as non‑existent in law., 49. The Statute deals with the instances of failure to stamp a document which has got to be stamped under the provisions of the Act, 1899 but does not affect the validity of the transaction embodied in the document. That Part IV of the Act, 1899 deals with the contingencies of non‑payment of stamp duties and once the object of securing the interest of the revenue of State is secured, the claim based on instrument can always be acted upon on payment of the requisite stamp duty., 50. We, therefore, hold that the deficiencies under the Act, 1899 can be fulfilled, and do not render any instrument invalid permanently. Now, it is to be seen whether the Supreme Court of India or an Arbitral Tribunal can order rectification of the deficiencies under the Act, 1899, if any., IV. Historical Background of Arbitration in India, 51. Arbitration can be understood as a procedure of dispute resolution in which the dispute is submitted, by the agreement of the parties, to the appointed Arbitrator or the Arbitral Tribunal who are having the jurisdiction to resolve the dispute in accordance with the applicable law as agreed among the parties. Alternatively, it can be understood as a mechanism to adjudicate disputes between the parties outside the court in a quasi‑judicial manner., 52. The process of arbitration as a preferable method of dispute resolution is not new in India. According to the scholars of the ancient Hindu literature, Brhadaranayaka Upanishad is the earliest known treatise that mentions a system that can be closely associated with present‑day arbitration as the same involved various arbitral bodies such as Puga or the local courts, Srenis or the people carrying out the same profession and Kulas or members concerned with the social matters of the same part of the society. All the above‑explained bodies were called the Panchas and cumulatively formed Panchayat. The same has been affirmed by the Privy Council in the case of Vytla Sitanna v. Marivada Viranna wherein it was observed that the parties used to refer the dispute to the elected panchayat and these adjudicating bodies were responsible to pass the award which was based on the principle of fair and equitable settlement of the dispute based on the prevalent legal as well as moral grounds., 53. The arbitration regime in India further evolved with the enactment of the first Bengal Regulation by the Britishers in the year of 1772. Subsequent to this enactment, all the disputes were submitted to arbitration and the award of the same had the same value as that of any decree passed by the Court. Further, the Bengal Regulation of 1781 also contained provision as reproduced herein: The judge do recommend and so far as he can without compulsion prevail upon the parties to submit to the arbitration of one person, to be mutually agreed upon by the parties. No award of any arbitrator be set aside, except upon full proof, made by oath of two creditable witnesses that the arbitrators had been guilty of gross corruption or partially, in the course of which they had made their award., 13 C. V. Nagarjuna Reddy, Role of Arbitration in the Wake of CPC (Amendment) Act, 1999, The Indian Council of Arbitration., 54. It is quite evident from the above‑mentioned clause that the Bengal Regulations contained provisions to enable the parties to refer the dispute to be settled by the process of arbitration as per the mutual agreement of the parties, especially in disputes involving breach of the contractual obligations and partnership deeds. Arbitration also found a place in the earliest enacted legislation by the State i.e., Code of Civil Procedure, 1859. Specifically, the provision in Schedule II of the Code of Civil Procedure, 1908 contained the procedure relating to arbitration. These statutory provisions primarily dealt with two types of arbitrations: (i) Arbitration initiated by the Courts in any pending civil suit. (ii) Arbitration wherein there is no involvement or intervention of the Court., 55. Apart from these two types of arbitration, there evolved a third kind of arbitration known as Statutory Arbitration wherein the procedure of arbitration is governed by the provisions contained in the statute., 56. The major development in the arbitration regime came with the enactment of the Arbitration Act, 1899 which was quite comparable to the English Arbitration Act, 1899. This enactment can be understood as the first step in the direction of enforcement of arbitration in India. The Arbitration Act, 1899 was initially applicable to all the presidency towns and there existed judicial intervention right from the initial reference of the dispute to the process of arbitration., 57. With the rapidly changing times, the evolution of the arbitration regime in India also gained momentum. The Code of Civil Procedure, 1908 was amended to insert the provision contained under Section 89 which exclusively dealt with the applicability and enforceability of the arbitration. In the early 20th century, arbitration emerged as an acceptable mode of dispute resolution and in order to meet its growing popularity, the Arbitration Act, 1940 (hereinafter being referred to as the Act, 1940) was enacted by the legislature. The Act, 1940 was enacted with the primary motive of providing speedy and less costly method of dispute resolution in the form of arbitration. However, there existed many inadequacies in the practical application of the provisions contained in the Act, 1940., 58. The Act, 1940 contained many provisions similar to the provisions contained under the English Arbitration Act, 1934 but still it did not have any provision for enforceability of the foreign award. Also, the provisions contained in the Act, 1940 facilitated the intervention of the judiciary at all the three stages of the arbitral proceedings, i.e., before the dispute was referred to the arbitration, during the pendency of the arbitral proceedings and after passing the arbitral award., 59. The ineffective functioning of the provision contained under the Act, 1940 was regularly criticised by the Judiciary. The following observation by Justice D. A. Desai in the case of Guru Nanak Foundation v. Rattan Singh and Sons is quite relevant to be mentioned here: 1. Interminable, time‑consuming, complex and expensive Court procedures impelled jurists to search for an alternative Forum, less formal, more effective and speedy for resolution of disputes, avoiding procedural claptrap and this led them to Arbitration Act, 1940. However, the way in which the proceedings under the Act are conducted and without an exception challenged in Courts, has made Lawyers laugh and legal philosophers weep., 60. This Court further observed in the case of Food Corporation of India v. Joginderpal Mohinderpal and Another that the law governing arbitration is supposed to be less technical and more suitable to practical problems by ascertaining equity and fair play in the entire process. Despite such severe criticism by this Court, no amendment was brought in the Act, 1940 by the legislature for a long period of time., 61. It was only by the late 20th century, there came a major shift in the development of arbitration in India. Due to the economic liberalisation and alike policies of the government in 1991, there was a need felt to create a conducive environment for attracting foreign investments. Therefore, based on the 76th Report of the Law Commission of India as well as the Model UNCITRAL law, the Act, 1996 was enacted by the legislature. The Act, 1996 came into force from 16th August 1996 with an object of making the process of arbitration cost effective, less technical and in accordance with the prevalent international practices across the world., V. Intent behind incorporation of Section 11(6A) of the Arbitration and Conciliation Act, 1996, 62. A major shift for the development of arbitration in India happened with the enactment of the Act, 1996. Based on the 76th Report of the Law Commission of India as well as the Model UNCITRAL law, the Act, 1996 was enacted with an object of making the process of arbitration cost effective, less technical and in accordance with the prevalent international practices across the world. The legislative intent was to provide effective and speedy procedure for dispute resolution among the parties as well as to limit the scope of judicial intervention in the process of arbitration. India is gradually moving in the direction of minimal judicial intervention keeping abreast with the developments of arbitration in other regimes., 63. The Constitution Bench of the Supreme Court of India while examining the pre‑2015 amendment regime in SBP & Co. v. Patel Engineering Ltd. and Another held that all the preliminary or threshold issues pertaining to jurisdiction of the Arbitrator/Arbitral Tribunal should be examined by the Court under Section 11 of the Act, 1996. This position of law was sought to be changed by the Law Commission in its 246th Report, which states as follows: In so far as the nature of intervention is concerned, it is recommended that in the event the Court/Judicial Authority is prima facie satisfied against the argument challenging the arbitration agreement, it shall appoint the arbitrator and/or refer the parties to arbitration, as the case may be. The amendment envisages that the judicial authority shall not refer the parties to arbitration only if it finds that there does not exist an arbitration agreement or that it is null and void. If the judicial authority is of the opinion that prima facie the arbitration agreement exists, then it shall refer the dispute to arbitration, and leave the existence of the arbitration agreement to be finally determined by the arbitral tribunal. However, if the judicial authority concludes that the agreement does not exist, then the conclusion will be final and not prima facie. The amendment also envisages that there shall be a conclusive determination as to whether the arbitration agreement is null and void., 64. In the said report, the Law Commission of India concluded that the judicial intervention in arbitration proceedings adds significantly to the delay in the arbitration process and ultimately negates the benefit of arbitration. At paragraph 24, the Law Commission noted as follows: [I]t is observed that a lot of time is spent for appointment of arbitrators at the very threshold of arbitration proceedings., 65. The Law Commission suggested the insertion of sub‑Section (6A) to Section 11 in the Act, 1996 which was accepted by the Legislature by way of the 2015 amendment to the Act, 1996. Section 11(6A) unambiguously by its intention manifests that the Supreme Court of India or, as the case may be, the High Court, while examining an application under sub‑section (4) or sub‑section (5) or sub‑section (6), shall, notwithstanding any judgment, decree or order of any Court, confine to examine only the existence of an arbitration agreement., 66. The 2015 amendment, including Section 11(6A), and the later amendments are in line with this evolution of arbitration jurisprudence. With the series of amendments to the principal Act, it is quite evident that the legislature is continuously engaging with the rapidly evolving arbitration regime in India and the various challenges allied it with the object to reduce the scope of intervention by the courts in the arbitration processes. It can be expected that the arbitration in India is conducted in accordance with the following views expressed by Justice Sabyasachi Mukharji in the case of Food Corporation of India (supra): 7. We should make the law of arbitration simple, less technical and more responsible to the actual realities of the situation, but must be responsive to the canons of justice and fair play and make the arbitrator adhere to such process and norms which will create confidence, not only by doing justice between the parties, but by creating a sense that justice appears to have been done., 67. In the case of Duro Felguera, S.A. v. Gangavaram Port Limited, this Court explained the scope and effect of the changes brought in by the 2015 amendment in the following words: From a reading of Section 11(6‑A), the intention of the legislature is crystal clear i.e. the court should and need only look into one aspect the existence of an arbitration agreement. What are the factors for deciding as to whether there is an arbitration agreement is the next question. The resolution to that is simple it needs to be seen if the agreement contains a clause which provides for arbitration pertaining to the disputes which have arisen between the parties to the agreement., 68. The scope of the power under Section 11(6) of the 1996 Act was considerably wide in view of the decisions in SBP and Co. and Boghara Polyfab. This position continued till the amendment brought about in 2015. After the amendment, all that the courts need to see is whether an arbitration agreement exists nothing more, nothing less. The legislative policy and purpose is essentially to minimise the Court's intervention at the stage of appointing the arbitrator and this intention as incorporated in Section 11(6‑A) ought to be respected., 69. This position was affirmed by a three‑judge bench in Mayavati Trading Private Limited v. Pradyuat Deb Burman: 10. This being the position, it is clear that the law prior to the 2015 Amendment that has been laid down by this Court, which would have included going into whether accord and satisfaction has taken place, has now been legislatively overruled. This being the position, it is difficult to agree with the reasoning contained in the aforesaid judgment, as Section 11(6‑A) is confined to the examination of the existence of an arbitration agreement and is to be understood in the narrow sense as has been laid down in the judgment in Duro Felguera, S.A., 70. Thus, the 2015 amendment aims to limit the intervention of Courts to minimal examining the existence and not the validity of an arbitration agreement at the pre‑referral stage of the arbitration proceedings., VI. Scope of Section 11(6A) w.r.t. Section 8, Section 16 and Section 45 of Arbitration and Conciliation Act, 1996, 71. Section 11(6A) of the Act, 1996 reads as follows: The Supreme Court of India or, as the case may be, the High Court, while considering any application under sub‑section (4) or sub‑section (5) or sub‑section (6), shall, notwithstanding any judgment, decree or order of any Court, confine to the examination of the existence of an arbitration agreement., 72. The scope of inquiry under Section 11(6A) is restricted to examine the existence of an arbitration agreement. The phrase existence of an arbitration agreement is to be understood in a literal sense keeping the intention of the legislature after the introduction of the 2015 amendment. The position of law that prevails after the insertion of 2015 amendment is that there should be minimal interference by the Courts. The limited scope of the Court to examine at the pre‑referral stage is whether the arbitration agreement, prima facie, exists as referred to under Section 7 of the Act, 1996 which includes determination of the following factors: (i) Whether the arbitration agreement is in writing; (ii) Whether the core contractual ingredients qua the arbitration agreement are fulfilled? (iii) On rare occasions, on a serious note of objection, if any, it may examine whether the subject matter of dispute is arbitrable?, 73. Section 8(1), which was replaced by the amendment of 2015, mandates a judicial authority to refer parties to arbitration unless there is prima facie finding that no valid arbitration agreement exists. The language used in the provision is as follows: 8. Power to refer parties to arbitration where there is an arbitration agreement. (1) A judicial authority, before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party to the arbitration agreement or any person claiming through or under him, so applies not later than the date of submitting his first statement on the substance of the dispute, then, notwithstanding any judgment, decree or order of the Supreme Court of India or any Court, refer the parties to arbitration unless it finds that prima facie no valid arbitration agreement exists. (2) The application referred to in sub‑section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof: [Provided that where the original arbitration agreement or a certified copy thereof is not available with the party applying for reference to arbitration under sub‑section (1), and the said agreement or certified copy is retained by the other party to that agreement, then, the party so applying shall file such application along with a copy of the arbitration agreement and a petition praying the Court to call upon the other party to produce the original arbitration agreement or its duly certified copy before that Court.] (3) Notwithstanding that an application has been made under sub‑section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made., 74. The Section provides that the Court can examine, whether prima facie there does not exist an arbitration agreement. The scope of this Section can be seen from the 246th Law Commission Report, which made the following note while suggesting amendment to Section 8: The amendment envisages that the judicial authority shall not refer the parties to arbitration only if it finds that there does not exist an arbitration agreement or that it is null and void. If the judicial authority is of the opinion that prima facie the arbitration agreement exists, then it shall refer the dispute to arbitration, and leave the existence of the arbitration agreement to be finally determined by the arbitral tribunal. However, there is ..., 75. A plain reading of Section 8 indicates that it limits the intervention of the Court to only one aspect i.e., when it finds that prima facie no valid arbitration agreement exists or is null and void., 76. The scheme of the Act, 1996 manifests that Sections 8 and 11 are complementary in nature and both relate to reference to arbitration and have the same scope and ambit with respect to judicial interference. The Court, under Sections 8 and 11, has to refer the matter to arbitration or to appoint an Arbitrator, provided the party has established a prima facie existence of an arbitration agreement, nothing more nothing less. At the same time, the Court should refer the matter if the validity of the arbitration agreement cannot be determined on a prima facie basis, as laid down above i.e. when in doubt, do refer., 77. At this stage, we would like to observe that the statutory scheme has been framed for appointment of an Arbitrator by various High Courts and also by the Supreme Court of India - called the Appointment of Arbitrators by the Chief Justice of India Scheme, 1996, the relevant portion of the same is extracted hereunder: 1. Short title. - This Scheme may be called The Appointment of Arbitrators by the Chief Justice of India Scheme, 1996. 2. Submission of request. - The request to the Chief Justice under sub‑section (4) or sub‑section (5) or sub‑section (6) of section 11 shall be made in writing and shall be accompanied by (a) the original arbitration agreement or a duly certified copy thereof; (b) the names and addresses of the parties to the arbitration agreement; (c) the names and addresses of the arbitrators, if any, already appointed; (d) the name and address of the person or institution, if any, to whom or which any function has been entrusted by the parties to the arbitration agreement under the appointment procedure agreed upon by them; (e) the qualifications required, if any, of the arbitrators by the agreement of the parties; (f) a brief written statement describing the general nature of the dispute and the points at issue; (g) the relief or remedy sought; and (h) an affidavit, supported by the relevant document, to the effect that the condition to be satisfied under sub‑section (4) or sub‑section (5) or sub‑section (6) of section 11, as the case may be, before making the request to the Chief Justice, has been satisfied.
id_1293	8	It is clear from the scheme of reference that when the applicant approaches the Supreme Court of India for appointment of an arbitrator, he is not required to file the original arbitration agreement; an attested copy of the agreement may be annexed at the pre‑referral stage. Such a copy is not an instrument as defined under Section 2(14) of the Arbitration Act, 1899., The reference to submitting a certified copy of the arbitration agreement does not impose a compulsory registration requirement under the Arbitration Act, 1996. Registration of a non‑testamentary instrument creating any right, title or interest of value Rs 100 or upwards in immovable property is mandated only by Section 17 of the Transfer of Property Act, 1908. If such a document is not registered, the transfer is void and the property does not pass, for example a mortgage is not complete until it is registered under that Act., The arbitration agreement is not a public document that must be compulsorily registered under Section 17 of the Transfer of Property Act, 1908, and therefore a certified copy cannot be obtained under Sections 74, 75 or 76 of the Evidence Act, 1872. Because the agreement is not required to be registered, it is not accessible in the public domain and the presumption of genuineness under Section 79 of the Evidence Act, 1872 does not arise., Consequently, when the arbitration agreement is not required to be compulsorily registered, the reference to a certified copy in the Scheme of Rules, 1996 means an authenticated copy that satisfies the requirement of Section 7 of the Arbitration Act, 1996 at the pre‑referral stage for the purpose of appointing an arbitrator under Section 11(6A) of the Arbitration Act, 1996. Hence, an objection on the ground that the agreement is unstamped or insufficiently stamped does not arise at that stage., Section 16 of the Arbitration Act, 1996 provides: (1) The arbitral tribunal may rule on its own jurisdiction, including any objection to the existence or validity of the arbitration agreement, and an arbitration clause forming part of a contract shall be treated as an agreement independent of the other terms; (2) A plea that the tribunal lacks jurisdiction must be raised no later than the submission of the statement of defence, but a party is not precluded from raising such a plea merely because he has appointed or participated in the appointment of an arbitrator; (3) A plea that the tribunal is exceeding its authority shall be raised as soon as the matter alleged to be beyond its scope arises; (4) The tribunal may admit a later plea if it considers the delay justified; (5) The tribunal shall decide on a plea under sub‑sections (2) or (3) and, if it rejects the plea, continue with the proceedings and make an award; (6) A party aggrieved by such an award may apply for setting aside the award in accordance with Section 34., Section 16(1) embodies the doctrine of Kompetenz‑Kompetenz and the doctrine of Separability. Kompetenz‑Kompetenz means that the arbitral tribunal is competent to rule on its own jurisdiction. The doctrine of Separability severs the arbitration clause from the underlying commercial contract, treating the clause as independent for the purpose of determining its validity., A division bench of the Supreme Court of India in Uttarakhand Purv Sainik Kalyan Nigam Limited v. Northern Coal Field Limited, relying on Duro Felguera, held that issues related to limitation must be raised before the arbitral tribunal. The Court observed that, by virtue of the non‑obstante clause incorporated in Section 11(6A), earlier judgments in Patel Engg. and Boghara Polyfab were legislatively overruled, and the scope of examination is now confined only to the existence of the arbitration agreement at the Section 11 stage., Thus, at the pre‑referral stage the Court may examine only whether an arbitration agreement exists prima facie under Section 7 of the Arbitration Act, 1996. Determination of any objection to the existence or validity of the agreement, including questions of stamping, lies within the jurisdiction of the arbitral tribunal under Section 16., Section 45 of the Arbitration Act, 1996 provides that a judicial authority, notwithstanding anything contained in Part I or the Code of Civil Procedure, 1908, shall refer parties to arbitration when an agreement covered by Section 44 exists, unless it prima facie finds the agreement to be null and void, inoperative or incapable of being performed., A plain comparison between Section 11(6A) and Section 45 shows that Section 45 has a broader scope: the judicial authority must examine whether the agreement is null and void, inoperative or incapable of being performed, whereas Section 11(6A) is limited to the existence of the agreement., In World Sport Group (Mauritius) Limited v. MSM Satellite (Singapore) Pte. Limited, the Supreme Court of India explained that ‘null and void’ refers to agreements invalid from the beginning (e.g., due to fraud or duress), ‘inoperative’ refers to agreements that have ceased to have effect (e.g., because of a missed time‑limit or revocation), and ‘incapable of being performed’ refers to practical impossibility of constituting an arbitral tribunal., The language of Section 11(6A) does not borrow the terminology of Section 45; therefore, the Court’s examination at the pre‑referral stage is limited to the existence of the arbitration agreement and does not extend to the issues of stamping or validity., The Maharashtra Stamp Act, 1958 does not subject an arbitration agreement to stamp duty. In M/S. N.N. Global Mercantile Private Limited, the Court noted that Schedule I of the Maharashtra Stamp Act, 1958 lists instruments chargeable to stamp duty, and an arbitration agreement is not among them. Accordingly, the agreement remains enforceable even if the underlying contract is unstamped., The Indian Stamp Act, 1899 contains a residuary entry in Article 5(c) stating that if an instrument is not otherwise provided for, a stamp duty of eight annas is payable. This residuary provision applies to arbitration agreements, making them subject to stamp duty under the Indian Stamp Act, 1899, although they are not specifically listed in Schedule I., The examination of the arbitration agreement at the Section 11 (pre‑referral) stage must be undertaken cautiously so as not to breach the legislative intent of limiting judicial intervention. The Court therefore refrains from deciding issues of validity, including stamping, which are left to the arbitral tribunal under Section 16., In conclusion, the Court holds that: (i) a copy or certified copy of an arbitration agreement, even if unstamped or insufficiently stamped, is an enforceable document for the purpose of appointing an arbitrator under Section 11(6A) of the Arbitration Act, 1996, with minimal judicial intervention; (ii) all preliminary issues such as insufficient stamping or validity of the agreement are referable to the arbitral tribunal under Section 16, which, by virtue of the doctrine of Kompetenz‑Kompetenz, has the power to decide them; (iii) the decision in SMS Tea Estates Private Limited is overruled, and the relevant paragraphs of Garware Wall Ropes Limited approved in Vidya Drolia and Others are also overruled to that extent.
id_1293	9	London Court of International Arbitration (LCIA) Arbitration Rules, Article 23, Jurisdiction and Authority: The arbitral tribunal shall have the power to rule upon its own jurisdiction and authority, including any objection to the initial or continuing existence, validity, effectiveness or scope of the arbitration agreement., Singapore International Arbitration Centre (SIAC) Rules, 2016, Article 28, Jurisdiction of the Tribunal: If any party objects to the existence or validity of the arbitration agreement or to the competence of SIAC to administer an arbitration, the Registrar shall determine whether such objection shall be referred to the Supreme Court of India. If the Registrar determines that the Supreme Court of India is prima facie satisfied that the arbitration should proceed, the arbitration shall continue; otherwise it shall be terminated. Any decision by the Registrar or the Supreme Court of India that the arbitration shall proceed does not prejudice the tribunal’s power to rule on its own jurisdiction., Singapore International Commercial Court (SCC) Rules, Article 11, Decisions by the Board: The Board may decide, among other matters, whether the SCC manifestly lacks jurisdiction over the dispute pursuant to Article 12(i). Article 12(i) provides for dismissal of a case, in whole or in part, if the SCC manifestly lacks jurisdiction., The approach of reputed arbitral institutions worldwide shows express recognition of the principle of Kompetenz‑Kompetenz and that the role of courts is limited to a preliminary prima facie examination. The prima facie test is used to determine the existence of an arbitration agreement., William Parkin, in his article \Challenging Arbitral Jurisdiction: The Role of Institutional Rules\ (Boston University School of Law, Public Law Research Paper, 2015, p. 39), notes that on occasion arbitrations are filed without any indication of consent to arbitrate. In such instances, efficiency is served by early consideration of the respondent’s argument that the case should not proceed. The ICC Rules permit the International Court of Arbitration to consider obvious jurisdictional defects, allowing arbitration to proceed only if the International Court of Arbitration is prima facie satisfied that an arbitration agreement exists., The objective of the prima facie test, while referring a party to arbitration, is also to ensure that a non‑consenting party is not bound by the arbitration process and that the doctrine of party autonomy is upheld with minimal court intervention., Justice Chandrachud, in the concurring opinion in A. Ayyasamy v. A. Paramasivam & Ors (for short, Ayyasamy), observed that Indian jurisprudence must strengthen the institutional efficacy of arbitration with minimal court intervention. He opined that the Arbitration and Conciliation Act, 1996 should be interpreted to bring in line the principles underlying its interpretation with prevailing approaches in the common‑law world., The Arbitration and Conciliation Act, 1996 should be interpreted to align with the common‑law approach, emphasizing minimal court intervention and recognizing the forum chosen by parties as a complete remedy for resolving all their claims., The House of Lords’ one‑stop arbitration principle, propounded in Fiona Trust & Holding Corporation v. Privalov (2007) 1 All ER (Comm) 891, was upheld, emphasizing the need for a fresh start in imparting business efficacy to arbitral agreements., The Court of Appeal held that a fresh start is needed for cases arising in an international commercial context, noting that parties should not be forced to litigate in courts when an arbitration clause exists, and that arbitration must provide a one‑stop forum for dispute resolution., The one‑stop arbitration approach ensures that all issues of initial illegality or contract voidness can be decided by arbitral institutions, subject to the ultimate supervisory jurisdiction of the Supreme Court of India. An arbitral award may be set aside by the Supreme Court of India under Section 34 of the Arbitration Act, 1996, preventing multiplicity of proceedings in courts and tribunals., Discussion on the Stamp Act, 1899 and the Arbitration Act, 1996: The Supreme Court of India, in SMSTea (2011), held that an arbitration agreement contained in an unstamped or insufficiently stamped instrument is invalid because Section 35 of the Stamp Act, 1899 bars the authority before which such an instrument is presented. The Court must examine whether the instrument is duly stamped and whether it is compulsorily registerable before admitting it into evidence., The judgment in SMSTea was upheld in Naina Thakkar and Black Pearl Hotels v. Planet M. Retail Ltd, and cited with approval in Dharmaratnakara. The Garware decision also followed SMSTea, which has been cited with approval in Vidya Drolia., Section 11(6A) of the Arbitration Act, 1996 contains a non‑obstante clause stating that, notwithstanding any judgment, decree or order of any court, the provision overrules all judgments that widen the ambit of examination., In the present reference, the learned counsel for the appellant argued that the observations of the three‑judge benches in Dharmaratnakara and Black Pearl Hotels were not considered in NN Global, calling into question the findings of NN Global., The two judgments did not consider the recent amendment of Section 11(6A). Black Pearl Hotels was delivered before the amendment and therefore stands legislatively overruled. In Dharmaratnakara, the amendment to Section 11(6A) was not brought to the Court’s notice, and the earlier Garware judgment was not considered., The Court in Garware relied on SMSTea to hold that an arbitration agreement in an unstamped document could not be acted upon unless stamp duty was paid. However, after the 2015 amendment, SMSTea is legislatively overruled., The correct exposition of law after the insertion of Section 11(6A) is found in Duro Felguera, S.A. v. Gangavaram Port Ltd, where the Court held that, post‑amendment, courts need only see whether an arbitration agreement exists, nothing more, nothing less. The legislative policy is to minimise court intervention at the stage of appointing an arbitrator., In Pravin Electricals (P) Ltd. v. Galaxy Infra & Engg. (P) Ltd, the Court held that the existence of an arbitration agreement must be established through documentary evidence and cross‑examination, and that the arbitral tribunal, not the court, should decide on the validity of the agreement., The Garware decision that an unstamped arbitration agreement is void is inconsistent with Section 7 of the Arbitration Act, 1996, which does not require stamping for an arbitration agreement to be valid, and with the Stamp Act, 1899, which treats unstamped documents as inadmissible but not void., The Indian Contract Act, 1872, Section 2(g) and 2(h) state that an agreement not enforceable by law is void, and an agreement enforceable by law is a contract. Applying these provisions to an unstamped arbitration clause would render it void ab initio, which contradicts the legislative scheme of the Stamp Act, 1899, where non‑stamping is a curable defect., Lord Williams, discussing Section 35 of the Stamp Act, 1899, noted that there is a clear distinction between invalidity and inadmissibility of documents; certain statutes render documents invalid if they are not stamped, but the English Stamp Act, 1899 provides that a document is not invalid merely because it lacks a stamp., Section 11(6A) confines the scope of inquiry to the existence of an arbitration agreement and does not address validity. Questions of validity and existence can be decided by the arbitral tribunal under Section 16 of the Arbitration Act, 1996, not by the court under Section 11., The interplay between the Stamp Act, 1899; the Indian Contract Act, 1872; and the Arbitration Act, 1996 shows that the Arbitration Act is a special legislation that prevails over general law. Accordingly, an arbitration agreement cannot be rendered void for insufficient stamping by a general law, as the Arbitration Act does not prescribe stamping as a requirement for validity., Section 5 of the Arbitration Act, 1996 contains a non‑obstante clause that overrides the powers of judicial authorities acting under any other law, limiting court intervention to the matters specified in Sections 77, 81 and 82 of the Act., Justice Indu Malhotra, commenting on the Arbitration and Conciliation Act, 1996, observed that the Act is a self‑contained code governing arbitration and that Section 5 gives it an overriding effect over statutes, meaning that only permissible actions under the Act may be taken., The doctrine of Kompetenz‑Kompetenz, as recognised in the UNCITRAL Model Law and affirmed by the Supreme Court of India in Warburton v. Loveland, provides that an arbitral tribunal has the competence to determine its own jurisdiction, including objections to the existence, validity or scope of the arbitration agreement., The principle of harmonious construction requires that where a general provision of law deals with a subject and a special provision deals with the same subject, the special provision prevails. Applying this to the three Acts, the Arbitration Act, 1996 (special law) prevails over the Stamp Act, 1899 and the Indian Contract Act, 1872 (general laws) with respect to the validity of arbitration agreements., Section 7 of the Arbitration Act, 1996 defines an arbitration agreement and sets out the forms in which it may exist, including written documents, exchanges of letters, telex, telegrams or any other electronic means of communication that provide a record of the agreement., There is no specific requirement in Section 7 of the Arbitration Act, 1996 for stamping of an arbitration agreement; a written agreement may be in the form of a document signed by the parties, an exchange of letters, or an exchange of statements of claim and defence., The Appointment of Arbitrators by the Chief Justice of India Scheme, 1996 provides that the request for appointment of arbitrators must be accompanied by the original arbitration agreement or a duly certified copy thereof., Evidence law: Primary evidence is the document itself, while secondary evidence includes certified copies, mechanical reproductions, counterparts, and oral accounts. Section 79 of the Indian Evidence Act, 1872 presumes the genuineness of certified copies, allowing them to be admitted in evidence for the purpose of Section 11(6) applications., The Supreme Court of India, in the present reference, held that when an original arbitration agreement is produced and found to be unstamped or insufficiently stamped, the Court exercising power under Section 11(6) is duty‑bound to act under Section 33 of the Stamp Act, 1899, to examine and possibly impound the instrument., The bar under Section 35 of the Stamp Act on admission of unstamped instruments is not permanent; it can be cured by following the procedures in the Act, such as endorsement under Section 42(1), after which the instrument becomes admissible in evidence., In conclusion, the one‑stop arbitration approach should not be undermined by stamping requirements at the pre‑referral stage. The Arbitration Act, 1996 provides that the existence of an arbitration agreement is sufficient for the appointment of arbitrators, and any stamping deficiency is a curable defect that should not render the agreement void.
id_1293	10	I am also concurring with the view that what is permissible to be produced as secondary evidence that is, other than the original document in terms of Section 2(a) of the scheme framed under Section 11(10) of the Act, is nothing but certified copy as mentioned earlier. But such a certified copy would not be available to be proceeded with under Section 33 of the Stamp Act if it is unstamped or insufficiently stamped. In such circumstances, such certified copy shall not be acted upon., In the contextual situation, to understand the difference between certified copy and a copy certified to be true copy, it is appropriate to refer to Rule 1 of Order VIII of the Supreme Court Rules, 2013, framed invoking the power conferred by Article 145 of the Constitution of India. Rule 1 of Order VIII reads thus: The officers of the Supreme Court shall not receive any pleading, petition, affidavit or other document, except original exhibits and certified copies of public documents, unless it is fairly and legibly written, type‑written or lithographed in double‑line spacing, on one side of standard petition paper, demy‑foolscap size, or of the size of 29.7 cm x 21 cm, or paper which is ordinarily used in the High Courts for the purpose. Copies filed for the use of the Courts shall be neat and legible, and shall be certified to be true copies by the advocate‑on‑record, or by the party in person, as the case may be., It cannot be presumed that despite the conspicuous difference in the said expressions, under paragraph 2(a) certified copy alone was permitted to be appended along with the application under Section 11 of the Act, unintentionally. I am of the considered view that it was so prescribed, fully understanding the nature of exercise of power under Section 11(6) of the Act and also the presumption of genuineness and correctness of certified copy available by virtue of Section 79 of the Evidence Act. With this addendum, I fully endorse all the conclusions and findings in the judgment of my learned brother Justice K. M. Joseph.
id_1298	0	Writ Petition No. 27614 of 2017 Reserved: 23 November 2021 Delivered on: 21 March 2022. Petitioner: P. Subburaj. Respondents: The Principal Secretary, Housing and Urban Development Department, Government of Tamil Nadu, Secretariat, Chennai 600009; and The Chairman, Tamil Nadu Housing Board, Nandanam, Chennai 600035., The petition is filed under Article 226 of the Constitution of India praying for a writ of mandamus directing the respondents to allot a house under the public quota for rent at Tower Block, Taylors Road, Kilpauk, Chennai to the petitioner, considering the petitioner’s representation dated 21 September 2017., For the petitioner: Mr. Jayaprakash for M/s. K. Vanangamudi. For the respondents: Mr. K. M. D. Muhilan, Government Advocate for Respondent 1; Mr. R. Bharatkumar, Standing Counsel for Respondent 2., The petitioner enrolled in the Bar Council of Tamil Nadu on 11 November 1987 as an advocate. He was appointed President of the District Consumer Redressal Forum, Madurai on 31 October 2005, drawing a basic salary of Rs 16,750 per month, and served for nine months before being transferred to Namakkal on 13 July 2006. During the relevant period, he was in charge of Karur and Dindigul districts and disposed of several cases on merits., The petitioner’s wife served as a nurse in Government Zonal Eye Hospital and retired on 31 May 2017. The petitioner’s daughter is studying B.D.S. in the third year and his son has completed the 12th standard and is awaiting admission to college., Under these circumstances, the petitioner applied for allotment of a house on a rental basis under the public quota. The criteria for allocation under the public quota require that the candidate have performed a good deed or charity for the general public, with preference given to persons who have served society morally. The petitioner pointed out that he served society by disposing of several cases of litigants while working as President of the District Consumer Redressal Forum in Karur and Dindigul districts. He submitted a representation on 21 September 2017, which the respondents have not considered, leading to the present writ petition., The learned counsel for the respondents submitted that the petitioner is a practicing advocate who was appointed President of the District Consumer Redressal Forum and that his wife retired from service on 31 May 2017 as a nurse; therefore, they can manage without any house being allotted on a rental basis under the public quota., The learned counsel for the petitioner submitted that he served as President of the Consumer Redressal Forum, disposed of a large number of cases, and substantially contributed a good deed to the public; therefore, he is entitled to allotment of the house under the public quota., The Madras High Court heard the learned counsel for the petitioner and the learned counsel for the respondents and perused the entire material available on record., There are two categories under which the Government allots rental accommodation, namely Public Quota and Government Quota. Although the public quota is shown as a distinct quota, it essentially forms part of the Government quota, as twenty percent of the accommodation made available by the Government is carved out for the public quota. The petitioner’s claim is to be considered under the public quota since, in the present case, the petitioner, a practicing lawyer aged sixty years, has served as President of the Consumer Redressal Forum and disposed of many cases; consequently, the Madras High Court is of the view that the petitioner is entitled to seek rental accommodation under the public quota., The Madras High Court, in the case of T. Sornapandian and Others v. The Principal Secretary to Government, Housing and Urban Development Department, Chennai and Others, Writ Appeals Nos. 453 to 457 of 2019, dated 1 March 2019, observed that the respondents had not placed any material defining what constitutes the public quota. The Court noted that the term ‘public’ suggests that the quota is meant for the general public, that the number of houses available under this quota is limited to three cities—Chennai, Madurai and Coimbatore—and that there is no statutory rule or executive instruction governing its allocation. The Court raised questions regarding income criteria, social status, or outstanding service as possible bases for eligibility, which remain unanswered., The Court observed that, in the absence of specific prescription, the public quota should be construed to benefit a person who renders service to the public, and such a person is certainly entitled to residential accommodation under the public quota., The services rendered by advocates in assisting the courts in the dispensation of justice constitute public service, as litigants obtain resolution of their disputes through them. An advocate is an officer of the court who discharges public law functions by providing access to justice to needy litigants and ensuring the unhindered administration of justice. The role of a lawyer is indispensable in the delivery of justice; the advocate’s duty is as important as that of a judge. Although lawyers are viewed in society as highly competent, they often face financial difficulties in the initial stages of practice, belonging to an irregular income group, which makes it difficult for them to secure shelter on a rental basis. Many landlords are reluctant to let property to advocates, fearing delayed rent, and banks hesitate to provide loans to advocates due to their income category. In the present case, it is unfortunate that the petitioner, having completed nearly thirty‑five years of practice as an advocate and a short period as President of the District Consumer Redressal Forum, at the age of sixty, does not own a house and is facing difficulty in finding shelter, prompting him to seek assistance from the Government for allotment of residential accommodation under the public quota., Taking into consideration the predicament of many lower‑income young advocates and their service to society by assisting the courts, the Madras High Court feels it appropriate to reserve a percentage of the public quota for the advocates’ fraternity in the matter of allotment of residential accommodation, in consultation with the Bar Council of Tamil Nadu and Puducherry, initially for those practicing at the High Court of Madras and its bench at Madurai. Accordingly, the Court orders: (i) the respondents are directed to consider the petitioner’s representation dated 21 September 2017 on merits and in accordance with law within eight weeks from the receipt of a copy of this order; and (ii) the respondents and the Government of Tamil Nadu are directed to frame a scheme, in consultation with the Bar Council of Tamil Nadu and Puducherry, for the allotment of houses on a rental basis, giving preference to practicing young advocates up to a prescribed age, taking into consideration the financial status of the concerned advocate, for a limited number of years., With the above, the writ petition is disposed of. No costs. Dated 21 March 2022.
id_1302	0	Further to amend the Code of Criminal Procedure, 1973 in its application to the State of Gujarat, it is hereby enacted in the Seventy‑second Year of the Republic of India as follows: This Act may be called the Code of Criminal Procedure (Gujarat Short Title and Amendment) Act, 2021. Commencement: It shall come into force on such date as the State Government may, by notification in the Official Gazette, appoint., In the Code of Criminal Procedure, 1973, as applied to the State of Gujarat, in Section 195, sub‑section (1), clause (a), for sub‑section 2 of 1974, clause (i), the following sub‑clause shall be substituted: “(i) of any offence punishable under sections 172, 173, 174 and 175 to 187 (both inclusive) of the Indian Penal Code, 1860.” The Government of Gujarat, Commissioners of Police and District Magistrates are empowered to issue prohibitory orders under Section 144 of the Criminal Procedure Code, 1973 directing any person to abstain from certain acts or to take certain orders to prevent obstruction, annoyance or injury to any person or danger to human life, health or safety, or a disturbance of public tranquility, riot or affray, in order to maintain public order on various occasions., Police officers deployed for the enforcement of the above restrictions encounter incidents of violation and need to take appropriate legal action against the violators under Section 188 of the Indian Penal Code, 1860. However, Section 195 of the Criminal Procedure Code, 1973 makes it mandatory for the public servant issuing such orders to be the complainant against the violators, thereby creating an impediment for taking cognizance of violations by police officers., Section 174‑A was inserted in the Indian Penal Code, 1860 by the Criminal Procedure Code (Amendment) Act, 2005 and non‑appearance in response to a proclamation under Section 82 of the Criminal Procedure Code, 1973 was made punishable. The amendment also inserted sub‑section (a) and (5) in Section 82 of the Criminal Procedure Code, 1973. The offence under Section 174‑A is cognizable. However, Section 195(1)(a)(ii) of the Criminal Procedure Code, 1973 prohibits the jurisdictional courts from taking cognizance of the offences except on the complaint in writing of the public servant concerned., The proposed amendment of provisions of Section 195 of the Criminal Procedure Code, 1973 is necessary to facilitate registration of criminal cases based on information received from police officers regarding commission of cognizable offences under Section 174‑A and Section 188 of the Indian Penal Code, 1860. This Bill seeks to amend the said Code to achieve the aforesaid object. The Bill involves the delegation of legislative power in the following respect: Sub‑clause (2) of this clause empowers the State Government, by notification in the Official Gazette, to appoint the date on which the provisions of the Act shall come into force. The delegation of powers as aforesaid is necessary and is of a normal character., No High Court shall take cognizance of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code, 1860, or of any abetment, attempt to commit such offence, or of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate.
id_1304	0	HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR\nCriminal Reference No. 1/2023\nPetitioners: Pooja Gurjar, Smt. Rekha Gurjar, Smt. Narayani Gurjar\nVersus\nState of Rajasthan, through Public Prosecutor, For the petitioners: Mister Biri Singh Sinsinwar, Senior Advocate, assisted by Mister Harendra Singh Sinsinwar, Mister Dhruv Atrey, Mister N. N. Meena, Mister A. K. Gupta, Senior Advocate, assisted by Mister Rinesh Gupta, Mister Gaurav Sharma, Mister Anoop Meena, Mister Saurabh Pratap Singh, Mister V. R. Bajwa, Senior Advocate, assisted by Ms. Savita Nathawat, Mister Rajeev Surana, Senior Advocate, assisted by Mister Sankalp Sogani, Ms. Muskan Verma and Mister Umang Jain, Mister Pankaj Gupta with Mister Naman Yadav, Mister Saurabh Yadav, Mister Hemang Singh Sinsinwar, Mister Yogendra Singh, Mister Sanjay Mehla with Ms. Sunita Mehla and Mister Nagendra Sharma, Mister Rajesh Sharma, Mister Kapil Gupta with Mister Adarsh Singhal and Mister Ajay Gadwal, Mister Manish Gupta, Mister Kapil Prakash Mathur, Mister Sudesh Saini with Mister Mohd. Zuber, Mister Nikhil Sharma, Mister S. S. Hora, Mister Hemant Nahta, Mister Shyam Bihari Gautam, Mister Anshuman Saxena, Mister Pankaj Agarwal, Mister Mohit Sharma with Mister N. P. Meena, Mister Jitesh Jain, Mister Timan Singh, Mister Abhilash Sharma, Mister Ashwani Chobisa, Mister Sandeep Pathak, Mister Dushyant Singh Naruka, Mister Mritunjya Sharma, Mister Anurag Mathur, Mister Saurabh Jain, Mister Rishu Jain, Mister Pallav Jhalani, Mister B. R. Rana, Mister B. R. Choudhary, Mister Pratush Choudhary, Mister Shubham Khunteta, Mister Harsh Joshi, Mister Akshay Shekhawat, Mister Abhishek B. Sharma, Mister Dhananjay Singh Gokhar, Mister Aziz Ahmed, Mister Farooq Ahmed, Mister Parmeshwar Pilania, Mister D. V. Tholla with Mister Himanshu Tholla, Mister Rohitash Kr. Saini, Mister Naman Yadav, Mister Tapish Saraswat, Mister Nitin Jain, Mister Manish Kumar Sharma, Mister P. C. Devanda, Mister Mahendra Saini, Mister Prashant Deora, Mister Anish Badala, Mister Anuraj Pareek, Mister Vimal Kumar Jain, and Mister Naman Maheshwari, For the respondents: Mister G. S. Rathore, Government Advocate cum Additional Advocate General; Mister Atul Sharma, Public Prosecutor; Mister Kirtivardhan Singh Rathore; Mister Tayyab Ali; and Mister Prashant Sharma. Honourable Justice Arun Bhansali and Honourable Justice Pankaj Bhandari presided., Judgment reserved on 12 December 2023 and pronounced on 19 December 2023 (per Honourable Justice Pankaj Bhandari). The question referred is whether, in all bail applications under Sections 437, 438 or 439 of the Criminal Procedure Code, the complainant/first informant/victim defined under Section 2(wa) of the Criminal Procedure Code is a necessary party and must necessarily be impleaded as a party‑respondent., Standing Order No. 32/2023 dated 15 September 2023 was issued by the Office of this Court, directing that in future matters arising out of a criminal act committed against a victim as defined under Section 2(wa) of the Criminal Procedure Code, the victim shall necessarily be impleaded as a party‑respondent. The Standing Order was based on observations made in an order dated 8 August 2023 by the learned Single Judge in S. B. Criminal Miscellaneous Bail Application No. 9490/2023 titled Nitoo Singh @ Nitu Singh versus State of Rajasthan, which held that the victim is a necessary party in all bail matters arising out of a criminal act committed against the victim. Subsequently, the learned Single Judge in an order dated 27 September 2023 in Pooja Gurjar & Ors. versus State of Rajasthan: S. B. Criminal Miscellaneous Bail Application No. 11910/2023 expressed disagreement with the earlier decision and observed that the informant/complainant/victim in bail proceedings under Sections 437, 438 or 439 of the Criminal Procedure Code cannot be considered a necessary party nor a proper party, and therefore framed a question for the Larger Bench., Learned advocates who submitted written submissions include Mister Biri Singh Sinsinwar, Senior Advocate, assisted by Mister Harendra Singh Sinsinwar; Mister A. K. Gupta, Senior Advocate, assisted by Mister Rinesh Gupta; Mister V. R. Bajwa, Senior Advocate, assisted by Ms. Savita Nathawat; Mister Pankaj Gupta; Mister Nikhil Sharma; Mister Manish Gupta; Mister Mohit Sharma; Mister Pankaj Agarwal; Mister Naman Maheshwari; Mister Sagar Sharma; Mister Hemant Gupta; Mister Prashant Daga; Mister Kapil Gupta; Mister Anish Bhadala; and Mister Hemant Nahta. They relied upon the following judgments: Jagjeet Singh & Ors. versus Ashish Mishra & Monu & Others (2022) 9 Supreme Court Cases 321; Saleem versus State of NCT of Delhi & Others, Bail Application No. 3635/2022; Ganesh Das: CRA 228 of 2020; Johirul Islam @ Jaher Ali versus State of Assam: Criminal Appeal No. 332/2022; Rohit versus State of Maharashtra: Criminal Appeal (Special Tribunal) No. 8953/2023; Birbal Kumar Nishad versus State of Chhattisgarh: SLP (Criminal) No. 4540/2021; Rekha Murarka versus State of West Bengal (2020) 2 Supreme Court Cases 474; Informant versus State of Karnataka, 2023 Supreme Court Cases Online Kar 69; Shiv Kumar versus Hukam Chand & Others (1999) 7 Supreme Court Cases 467; and Mallikarjun Kodagali (Deceased) represented by Legal Representatives versus State of Karnataka (2019) 2 Supreme Court Cases 752., It is contended that the Apex Court in Jagjeet Singh & Ors. versus Ashish Mishra & Monu & Others (2022) 9 Supreme Court Cases 321 does not direct that the victim should be impleaded as a necessary party. The Delhi High Court, in Saleem versus State of NCT of Delhi & Others, Bail Application No. 3635/2022 decided on 19 April 2023, held that the victim's right to be heard does not include the obligation to be impleaded as a party‑respondent in criminal proceedings., The learned advocates argue that bail is a rule and jail is an exception. The Criminal Procedure Code contains no provision for impleading the victim as a party‑respondent, and doing so would unnecessarily delay the process and curtail the accused's right under Article 21 of the Constitution of India, which guarantees that no person shall be deprived of life or personal liberty except according to procedure established by law. Section 301 of the Criminal Procedure Code recognises the right of any private person to engage a pleader to assist the Public Prosecutor or Assistant Public Prosecutor and to submit written arguments with the Court's permission. A similar right is provided in the proviso to sub‑section (8) of Section 24 of the Criminal Procedure Code., According to the principle of casus omissus, if a matter that should have been provided for in a statute is omitted, it is a matter for legislation, not judicial construction. The Legislature could have expressly provided for the victim's impleadment if it intended such a requirement. Section 439(1A) of the Criminal Procedure Code, inserted by Act 22 of 2018 with effect from 21 April 2018, obliges the presence of the informant or any person authorised by him at the hearing of a bail application concerning offences under Sections 376, 376AB, 376DA or 376DB of the Indian Penal Code. This limited provision indicates that the Legislature did not intend to make victim impleadment mandatory in all cases., Except for Section 439(1A), there is no provision in Sections 437, 438 or 439 of the Criminal Procedure Code that makes the victim a necessary party or requires his or her impleadment as a party‑respondent. Section 439(1A) also does not make it mandatory to implead the informant as a party‑respondent in bail applications. Section 372 of the Criminal Procedure Code, as amended, recognises the victim's right to appeal against an order acquitting the accused or imposing inadequate compensation. In cases of sexual offences, Section 228A of the Indian Penal Code prohibits disclosure of the victim's name and residence, making service upon the victim impracticable. Section 15A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act requires the victim to be impleaded as a necessary party. The Gauhati High Court, in Johirul Islam @ Jaher Ali versus State of Assam: Criminal Appeal No. 332/2022 decided on 14 December 2022, observed that the victim need not be impleaded as a party in proceedings under Section 389 of the Criminal Procedure Code, though the victim must be afforded a reasonable opportunity of hearing if he wishes to participate., The Calcutta High Court, in Ganesh Das: CRA 228 of 2020, held that the victim is not a necessary party to a criminal appeal from conviction for offences against women or children under the Indian Penal Code or the Protection of Children from Sexual Offences Act, and such an appeal is not defective in the absence of victim impleadment. The Bombay High Court, in Rohit versus State of Maharashtra: Criminal Appeal (Special Tribunal) No. 8953/2023 decided on 10 November 2023, held that in POCSO cases the child or the child's parents or guardian are not necessary parties to a criminal appeal from conviction, and the appellant was directed to delete the victim's name from the appeal., The learned Additional Advocate General appearing for the State contended that the victim is not a necessary party and therefore is not required to be impleaded as a party‑respondent in bail applications under Sections 437, 438 or 439 of the Criminal Procedure Code. The Court has considered the contentions of the learned senior advocates, other members of the Bar, and the Additional Advocate General, and has examined the material on record., Section 437 of the Criminal Procedure Code provides that when any person accused of, or suspected of, the commission of a non‑bailable offence is arrested or detained without warrant by an officer in charge of a police station, or appears before a Court other than the High Court or Court of Session, he may be released on bail subject to certain conditions, including that the person shall not be released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life, or if the offence is cognisable and the person has previous convictions of a certain seriousness. The provision also allows the Court to release a person who is under sixteen years of age, a woman, or is sick or infirm, and to impose additional conditions as it deems fit. Section 438 deals with anticipatory bail, allowing a person who has reason to believe that he may be arrested for a non‑bailable offence to apply to the High Court or Court of Session for a direction that he shall be released on bail in the event of such arrest, subject to factors such as the nature of the accusation, the applicant's antecedents, the possibility of fleeing, and whether the accusation is made with the object of injuring the applicant. Section 439 confers special powers on the High Court or Court of Session to direct the release of a person on bail, to set aside or modify conditions imposed by a Magistrate, and to require notice to the Public Prosecutor before granting bail in certain serious offences., A bare perusal of the above provisions reveals that there is no statutory requirement for the victim to be made a party‑respondent in bail applications. Section 439(1A) of the Criminal Procedure Code, inserted by Act 22 of 2018, only makes the presence of the informant or an authorised person obligatory at the hearing of bail applications concerning offences under Sections 376, 376AB, 376DA or 376DB of the Indian Penal Code. Had the Legislature intended victim impleadment in all cases, it would have expressly provided for it. In Padma Sundara Rao (Deceased) & Ors. versus State of Tamil Nadu & Ors. (2002) 3 Supreme Court Cases 533, the Apex Court observed that the Court cannot read anything into a statutory provision which is plain and unambiguous; the intention of the legislation must be found in the words used by the Legislature., The Court is of the considered view that if the victim were to be impleaded as a party in proceedings under Section 437, the provisions allowing a Magistrate to release persons on bail who are under sixteen years of age, women, or sick or infirm would become redundant, and the Magistrate would have to wait for victim impleadment and hearing, thereby delaying bail and violating Article 21 of the Constitution of India. In many non‑bailable offences the accused in custody does not know the name of the victim, and requiring victim impleadment would further delay the bail process., Common law countries follow an adversarial system where the victim's role is limited to the filing of a report, after which the State prosecutes the accused. The Criminal Procedure Code incorporates this principle through several provisions: Section 2(wa) defines a victim as a person who has suffered loss or injury caused by the act or omission for which the accused is charged, including the victim's guardian or legal heir; Section 24(8) allows the Central or State Government to appoint a Special Public Prosecutor and permits the victim to engage an advocate of his choice to assist the prosecution; Section 225 mandates that every trial before a Court of Session be conducted by a Public Prosecutor; Section 301 authorises the Public Prosecutor or Assistant Public Prosecutor to appear and plead without written authority and to permit a private pleader to submit written arguments after the evidence is closed; and Section 372 provides that the victim has a right to prefer an appeal against any order acquitting the accused or imposing inadequate compensation., From the foregoing provisions it is evident that the State is obligated to prosecute offenders, and Special Public Prosecutors, Public Prosecutors and Additional Public Prosecutors are appointed for conducting proceedings before the criminal courts. A proviso to sub‑section (8) of Section 24, inserted by Act 5 of 2009, allows the victim to engage an advocate of his choice to assist the prosecution. No provision in the Criminal Procedure Code mandates the impleadment of the victim as a necessary party. The Apex Court, in Shiv Kumar versus Hukam Chand & Others (1997) 7 Supreme Court Cases 467, held that a fair trial is important both for the complainant/victim and the accused, and that prosecution in a Sessions Court must be conducted by the Public Prosecutor to ensure fairness., The Delhi High Court, in Saleem versus State of NCT of Delhi & Others, examined whether the victim's right to be heard includes the obligation to be impleaded as a party‑respondent in criminal proceedings. The Court observed that while the victim has an unbridled right to participate in criminal proceedings, sexual offence cases require confidentiality of the victim's identity, and Section 439(1A) of the Criminal Procedure Code only requires the Court to hear the victim at the stage of considering bail applications, without making the victim a party to such proceedings.
id_1304	1	In accordance with the mandate of the Supreme Court in Jagjit Singh (supra), a victim now has unbridled participatory rights in all criminal proceedings in relation to which the person is a victim, but that in itself is no reason to implead a victim as a party to any such proceedings, unless otherwise specifically so provided in the statute; Section 439(1A) of the Criminal Procedure Code mandates that a victim be heard in proceedings relating to bail, without however requiring that the victim be impleaded as a party to bail petitions., The Delhi High Court, while relying upon the judgment of the Supreme Court in Jagjit Singh & Ors. Versus Ashish Mishra & Monu & Anr. (supra), observed that insofar as sexual offences are concerned, it is the unequivocal statutory mandate inter alia in Section 228-A of the Indian Penal Code, Sections 23, 33(7) and 37 of the Protection of Children from Sexual Offences Act and Sections 327(2) and 327(3) of the Criminal Procedure Code that the identity of a victim must be kept confidential. In the said judgment, the Delhi High Court placed reliance on the judgment in Nipun Saxena Versus Union of India: (2019) 2 Supreme Court Cases 703 and held that the requirement of maintaining confidentiality of a victim of a sexual offence, in the widest possible terms, includes the following: Neither the Indian Penal Code nor the Criminal Procedure Code define the phrase “identity of any person”. Section 228-A of the Indian Penal Code clearly prohibits the printing or publishing the name or any matter which may make known the identity of the person. It is obvious that not only the publication of the name of the victim is prohibited but also the disclosure of any other matter which may make known the identity of such victim. The phrase “matter which may make known the identity of the person” does not solely mean that only the name of the victim should not be disclosed but also means that the identity of the victim should not be discernible from any matter published in the media. The intention of the lawmakers was that the victim of such offences should not be identifiable so that they do not face any hostile discrimination or harassment in the future., A victim of rape will face hostile discrimination and social ostracisation in society. Such a victim will find it difficult to get a job, will find it difficult to get married and will also find it difficult to integrate into society like a normal human being. Our criminal jurisprudence does not provide for an adequate witness protection programme and, therefore, the need is much greater to protect the victim and hide her identity. In this regard, we may refer to some ways and means where the identity is disclosed without naming the victim. In one case, which made the headlines recently, though the name of the victim was not given, it was stated that she had topped the State Board Examination and the name of the State was given. It would not require rocket science to find out and establish her identity. In another instance, footage is shown on the electronic media where the face of the victim is blurred but the faces of her relatives, her neighbours, the name of the village, etc. are clearly visible. This also amounts to disclosing the identity of the victim. We, therefore, hold that no person can print or publish the name of the victim or disclose any facts which can lead to the victim being identified and which should make her identity known to the public at large., Dealing with Section 327 of the Criminal Procedure Code in the Gurmit Singh case (State of Punjab v. Gurmit Singh, (1996) 2 Supreme Court Cases 384) this Court held as follows: The courts should, as far as possible, avoid disclosing the name of the prosecutrix in their orders to save further embarrassment to the victim of a sex crime. The anonymity of the victim of the crime must be maintained as far as possible throughout. In the present case, the trial court has repeatedly used the name of the victim in its order under appeal, when it could have just referred to her as the prosecutrix. The trial courts should take recourse to the provisions of Sections 327(2) and (3) of the Criminal Procedure Code liberally. Trial of rape cases in camera should be the rule and an open trial in such cases an exception., In view of the aforesaid discussion, we issue the following directions: No person can print or publish in print, electronic, social media, etc. the name of the victim or even in a remote manner disclose any facts which can lead to the victim being identified and which should make her identity known to the public at large. In cases where the victim is dead or of unsound mind the name of the victim or her identity should not be disclosed even under the authorisation of the next of kin, unless circumstances justifying the disclosure of her identity exist, which shall be decided by the competent authority, which at present is the Sessions Judge. FIRs relating to offences under Sections 376, 376-A, 376-AB, 376-B, 376-C, 376-D, 376-DA, 376-DB or 376-E of the Indian Penal Code and the offences under the Protection of Children from Sexual Offences Act shall not be put in the public domain. In case a victim files an appeal under Section 372 of the Criminal Procedure Code, it is not necessary for the victim to disclose his or her identity and the appeal shall be dealt with in the manner laid down by law. The police officials should keep all the documents in which the name of the victim is disclosed, as far as possible, in a sealed cover and replace these documents by identical documents in which the name of the victim is removed in all records which may be scrutinised in the public domain. All the authorities to which the name of the victim is disclosed by the investigating agency or the court are also duty‑bound to keep the name and identity of the victim secret and not disclose it in any manner except in the report which should only be sent in a sealed cover to the investigating agency or the court. An application by the next of kin to authorise disclosure of identity of a dead victim or of a victim of unsound mind under Section 228-A(2)(c) of the Indian Penal Code should be made only to the Sessions Judge concerned until the Government acts under Section 228-A(1)(c) and lays down criteria as per our directions for identifying such social welfare institutions or organisations. In case of minor victims under the Protection of Children from Sexual Offences Act, disclosure of their identity can only be permitted by the Special Court, if such disclosure is in the interest of the child. All the States/Union Territories are requested to set up at least one One‑Stop Centre in every district within one year from today., The Apex Court in the judgment of Nipun Saxena Versus Union of India (supra) observed that the intention of the lawmakers was that the victim of such offences should not be identifiable so that they do not face any hostile discrimination or harassment in the future. The Apex Court has further held that no person can print or publish the name of the victim or disclose any facts which can lead to the victim being identified and which should make her identity known to the public at large. The Apex Court in Birbal Kumar Nishad Versus State of Chhattisgarh: SLP (Criminal) No. 4540/2021 decided on 30.06.2021 made observations as to the necessity of anonymisation of the names of victims noting that it is well established that in cases like the present one, the name of the victim is not to be mentioned in any proceeding. All subordinate courts shall be careful in future while dealing with such cases., Thus, we are of the considered view that the mandate of Jagjit Singh & Ors. Versus Ashish Mishra & Monu & Anr. (supra) that the victim has unbridled participatory rights in criminal proceedings does not mean that the victim must replace or substitute the State as the prosecuting agency; nor that the victim must be impleaded as a party to the proceedings so as to make the victim answerable in all aspects., Learned Single Judge, while placing reliance on the judgment of Jagjit Singh & Ors. Versus Ashish Mishra & Monu & Anr. in Nitoo Singh @ Nitu Singh Versus State (supra), observed that evidently, the right of the victim is substantive as well as enforceable and cannot be termed as restrictive and therefore, in my view, the victim is a necessary party to be added in all the bail matters arising out of criminal act committed against the victim as defined under Section 2(wa) of the Criminal Procedure Code. The effect of the Standing Order dated 15.09.2023 issued by the Office of this Court in pursuance to the order dated 08.08.2023 would be that the accused persons shall be bound to remain in custody awaiting service of notices upon the victims, which is in direct conflict with their right to personal liberty guaranteed under Article 21 of the Constitution of India. The Standing Order shall also create hurdles as the definition of a victim under Section 2(wa) of the Criminal Procedure Code is sufficiently wide enough to include every person of the family of the victim and it would be a humongous task for the accused to serve notices upon all the victims and a much greater task would be the determination of victims in a criminal case. Equally troublesome would be the service on the victim without having their proper addresses., None of the members of the Bar have supported the view taken by the learned Single Judge in Nitoo Singh @ Nitu Singh Versus State and have vehemently opposed the said order whereby direction has been given for impleading the victim as a party‑respondent. The right of the victim as well as the accused persons shall be rightly balanced and any inclination to either of the parties would not subserve the fundamental principle of a fair trial; therefore, it shall be kept well within the minds of the Legislature.
id_1305	0	Criminal Revision Cases Nos. 743, 1273 and 1274 of 2022. Orders Reserved on 01 September 2022 and Pronounced on 16 September 2022., Criminal Revision Case No. 743 of 2022: Tekepat Satish Chandra Menon, Petitioner versus Asha Panickar and Uday Krishnan Menon, represented by his mother and natural guardian Asha Panickar, Respondents. Criminal Revision Cases Nos. 1273 and 1274 of 2022: Asha Panickar and Uday Menon, represented by his mother and natural guardian Asha Panickar, Petitioners versus Tekepat Satish Chandra Menon, Respondent., Prayer in Criminal Revision Case No. 743 of 2022: The petitioner seeks to call for the records and set aside the order dated 24 January 2022 made in Miscellaneous Case Number 90 of 2012 by the Additional Family Court, Chennai, and to allow this Criminal Revision Petition. Prayer in Criminal Revision Case No. 1273 of 2022: The petitioner seeks to set aside the dismissal of the claim directing the respondent to pay a sum of Rs 5.80 crores for medical treatment and surgery at Cleveland Clinic, USA, made in Miscellaneous Petition Number 495 of 2021 in Miscellaneous Case Number 90 of 2012 dated 24 January 2022, and to allow the Criminal Revision Petition. Prayer in Criminal Revision Case No. 1274 of 2022: The petitioner seeks to set aside the order passed in Miscellaneous Case Number 90 of 2012 dated 24 January 2022 and to allow the prayer sought for in that case, thereby allowing this Criminal Revision Petition., For Criminal Revision Case No. 743 of 2022, the petitioner is represented by Mr. N. Manoharan; the respondents are represented by Mrs. Asha Panickar, appearing in person. For Criminal Revision Cases Nos. 1273 and 1274 of 2022, the petitioners are represented by Mrs. Asha Panickar, appearing in person; the respondent is represented by Mr. N. Manoharan, appearing in person., Criminal Revision Case No. 743 of 2022 is filed by Tekepat Satish Chandra Menon, former husband of the first respondent and father of the second respondent, aggrieved by the order of the learned Additional Family Court, dated 24 January 2022 in Miscellaneous Case Number 90 of 2012, wherein the trial court denied two reliefs – payment of monthly maintenance to the first respondent and payment of Rs 5.8 crores for medical treatment and surgery at Cleveland Clinic, USA for the second respondent – and instead ordered a monthly maintenance of Rs 80,000 to the second respondent, son of the petitioner. The first respondent, Asha Panickar, filed Criminal Revision Cases Nos. 1273 and 1274 of 2022. All three revision cases are taken up together and disposed of by this common judgment. For clarity, the parties are referred to as follows: Tekepat Satish Chandra Menon – the father; Asha Panickar – the mother; Uday Krishnan Menon, represented by his mother and natural guardian – the son., The marriage took place on 11 February 1985 and the son was born on 21 December 1984. The son is a special child suffering from epilepsy/refractory seizure disorder, a slow learner with adjustment difficulties and temper tantrums. Due to differences that arose in the marital life, the parties filed Family Court Original Petition No. 1821 of 2004 under Section 13B of the Hindu Marriage Act, 1955. By a judgment dated 10 February 2005, the Principal Family Court, Chennai granted a decree of divorce. The judgment permitted the father to have custody of the son, the mother to have visitation rights, and, if the mother later desired custody, the father agreed to pay Rs 20,000 per month as maintenance. The parties also agreed to transfer certain Life Insurance Corporation policies to the mother, with the mother responsible for premiums in case of default, and to refrain from any future claims, including maintenance, against each other., After the divorce, while the son was in the father's custody, the father alleges that in the best interest of the son, he admitted the son in 2011 to an institution known as Cadambam in Bangalore, paying Rs 70,000 per month. The mother alleges that the son was merely dumped in the rehabilitation centre, locked in a room, severely ill‑treated and ill‑managed, which could have resulted in the son's death, and she filed a complaint for an offence under Section 308 of the Indian Penal Code. The father contends that the centre had doctors and facilities for psychiatric treatment and that the mother abruptly removed the child when treatment was progressing., After the mother took custody of the child, a maintenance petition under Section 125 of the Criminal Procedure Code was filed on 15 February 2012, praying for Rs 2,00,000 per month for the mother and Rs 1,00,000 per month for the son. The father contested the petition on 6 November 2013, arguing that the mutual consent divorce judgment expressly barred the mother from claiming any maintenance and that he was already paying Rs 20,000 per month to the mother as agreed, therefore the petition should be dismissed., Pending the maintenance petition, the mother filed Miscellaneous Petition Number 495 of 2021 seeking a direction to pay Rs 5.8 crores for epilepsy surgery at Cleveland Clinic, USA. She alleges that the father had promised such treatment, that Indian hospitals were not competent for the procedure, and that given the parties' socio‑economic status, the surgery should be performed in the United States. The total expense claimed is Rs 5.8 crores, and she seeks a direction for the father to pay the same., In the maintenance case, the mother was examined as PW‑1 and exhibits P‑1 to P‑10 were marked. The father was examined as RW‑1 and exhibits R‑1 to R‑7 were marked. The trial court heard the parties and, by two separate orders dated 24 January 2022 in the miscellaneous case and the main maintenance case, passed the orders against which the revision cases are now before this Court., The learned counsel for the father, Mr. N. Manoharan, appeared for himself and the son, while the mother appeared in person., Counsel for the petitioner submitted that the wife is living separately by mutual consent, as agreed in the mutual consent divorce, and therefore, under Section 125(4) of the Criminal Procedure Code, she is not entitled to maintenance. Regarding the alleged surgery, counsel noted that although surgery was advisable, it was not performed due to the risks involved, and the mother’s claim of an exorbitant amount for surgery in the United States is unsustainable., Counsel for the father further submitted that, as the child is a special child, the father has a duty to maintain him. The father had custody of the child from the separation in 2003 and continued after the 2005 divorce, until the mother forcefully took the child in 2011. The mutual consent decree provides that if the mother has custody, the father must pay Rs 20,000 per month, and any claim beyond that is impermissible. Counsel highlighted the proof affidavit table showing monthly expenses of approximately Rs 1,53,000 for the child, and argued that the claim of Rs 1,00,000 per month is exorbitant. He also pointed out that the father’s gross total income for 2019‑2020 is only Rs 4,42,082, and therefore the Court should interfere with the maintenance amount awarded to the son and dismiss the mother’s revision case for the other reliefs., Mrs. Asha Panickar, appearing in person, submitted that when the parties were together, they enjoyed a high standard of living and provided extraordinary care for the child. She claimed that the father’s extramarital affair led her to seek a mutual divorce without alimony, trusting that the father would continue to care for the child. She alleged that the father dumped the son in Cadambam, filed a criminal complaint under Section 307 of the Indian Penal Code (registered as Section 308 due to the father’s influence), and that her innocent undertaking in the mutual consent petition should not bar her claim for maintenance. She described her daily routine of 24‑hour care for the special child, her loss of income from running a school, and her limited earnings from a book royalty, asserting that she cannot maintain herself., The mother also submitted that the father had repeatedly promised to take the son to the United States for surgery, and although institutions like NIMHANS in Bangalore are equipped, the success rate is lower than in the United States. She argued that the child requires complex surgery and the father must be directed to afford the treatment. She claimed Rs 1,00,000 for the child and Rs 2,00,000 for herself, stating that the total claim of Rs 3,00,000 per month should be awarded, and that Ayurvedic therapy in a proper hospital is costly and necessary., Counsel for the father, Mr. N. Manoharan, produced additional papers and submitted that the mother also filed a Domestic Violence Petition in Criminal Complaint Number 29 of 2014, which was quashed by this Court in Criminal Original Petition Number 13949 of 2014. He relied on the judgment in Krishnappa Chettiar v. Sivagami Achi, paragraph 6, for the proposition that once parties compromise on maintenance, the magistrate cannot award maintenance thereafter. He also cited the Punjab and Haryana High Court judgment in Saroj Bala v. Ashok Kumar Kalyan, paragraphs 5 and 6, and the Delhi High Court judgment in Minni Chaudhary v. Iqbal Singh @ Iqbal Ahmed, paragraphs 12, 13 and 16, for the proposition that a waiver of maintenance rights under Section 13B of the Hindu Marriage Act, 1955, bars any later claim. Further citations included the Supreme Court judgment in Galada Power and Telecommunication Limited v. United India Insurance Company Limited and Anr., paragraphs 14 and 17, and the judgment of this Court in G. Nagaiyan & Anr. v. K. Palanivel, as well as the Calcutta High Court judgment in Prasenjit Mukherjee v. State of West Bengal and Ors., The Court considered the rival submissions and the material records and framed the following questions: (i) Whether Mrs. Asha Panickar is entitled to maintenance under Section 125 of the Criminal Procedure Code and, if so, what is the quantum? (ii) Whether the son is entitled to maintenance from the father and, if so, what should be the quantum? (iii) Whether the father should be directed to pay the sum of Rs 5.8 crores for the proposed hospital and surgical expenses., Under Section 125 of the Criminal Procedure Code, a divorced wife is entitled to claim maintenance unless she is disqualified by residing separately without sufficient reason or by living separately by mutual consent, as per Section 125(4). The mutual consent divorce judgment makes it clear that the parties are living separately by mutual consent and that the mother has expressly waived any future maintenance claim. Consequently, the mother is not entitled to maintenance, and the Court answers Question I by holding that the mother is not entitled to any maintenance., The child is a special child with serious medical ailments requiring extraordinary care. Although the parties agreed in the mutual consent decree that the father would pay Rs 20,000 per month if the mother took custody, the amount is grossly inadequate given the child's needs. The father paid Rs 70,000 per month in 2011 when the child was placed in Cadambam. Considering the detailed expense table, the trial court’s award of Rs 80,000 per month is justified and not excessive. The father’s declared income of approximately Rs 4,50,000 per year does not preclude him from paying the awarded amount, especially given his affluent background. Therefore, the Court answers Question II by holding that the son is entitled to maintenance from the father, and the quantum of Rs 80,000 per month awarded by the trial court is upheld., On consideration of the mother’s petition for medical expenses, the counter‑filing, and the trial court’s reasoning, the Court is unable to grant the relief of Rs 5.8 crores for the proposed surgery for the reasons set out in the judgment.
id_1305	1	The surgery was recommended in the year 2005 and now, we are in the year 2022, the child was not taken to the United States for so long., Even currently when the doctors are recommending, it is not specifically recommended that the child has to be taken only to the United States., The mother has not produced any document so as to prove that the father is capable of affording a sum of Rupees 5.8 crores as medical expenses., The stand that the surgery will only be conducted in America, even though may be the wish of the mother, cannot be considered as an essential need given the fact that such surgeries can be done in India itself., Just because the expertise is more and the risk factor is lesser, treatment in the United States of America cannot be held by the Family Court as an essential need when the same is available with proper experts in India itself, though not of the same degree as in the United States of America as per the perception of the mother., Finally, only of the said belief, the child's surgery has been unfortunately postponed and now he is aged 35 years and has survived without surgery., Therefore, I am of the view that the Trial Court has rightly rejected the prayer in Miscellaneous Petition Number 495 of 2021 even while ordering the litigation expenses of Rupees 1,00,000. There is no Revision Case filed against the said sum of Rupees 1,00,000 by the father and as such, the same stands., In view of the above findings, I answer the question that the prayer of the mother to direct the father to pay a sum of Rupees 5.8 crores Criminal Revision Case Numbers 743, 1273 and 1274 of 2022 towards the medical surgical expenses is unsustainable and has rightly been rejected by the Family Court., In the result, in view of the answers to all the three questions above, all the three Revision Cases fail and are dismissed accordingly., 16 September 2022.
id_1306	0	CS(COMM) 567/2022 & I.A. 13067-69/2022. Through: Mr. Sidharth Chopra, Ms. Sneha Jain, Ms. Vriti Jindal & Mr. Akshay Maloo, Advocates. Versus: None. This hearing was conducted in hybrid mode. Interim Application 13069/2022 (for exemption) is allowed, subject to all just exceptions, and the application is disposed of. Interim Application 13068/2022 (exemption from advance notice to the Defendants) is disposed of with advance service to the Defendants granted., The plaint is to be registered as a suit. Summons shall be issued to the Defendants through all modes upon filing of the Process Fee. The summons shall indicate that a written statement to the plaint shall be positively filed within 30 days from the date of receipt of summons. Along with the written statement, the Defendants shall also file an affidavit of admission or denial of the Plaintiff's documents; without such affidavit the written statement shall not be taken on record. Liberty is given to the Plaintiffs to file a replication within 15 days of receipt of the written statement(s). Along with the replication, the Plaintiffs shall file an affidavit of admission or denial of the Defendants' documents; without such affidavit the replication shall not be taken on record. Any party wishing to seek inspection of documents shall apply for the same within the prescribed timelines. The matter is listed before the Joint Registrar for marking of exhibits on 12 October 2022. It is made clear that any party unjustifiably denying documents shall be liable to bear costs. The matter is listed before the Delhi High Court on 9 November 2022., 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 matches and associated content by the Defendants. Plaintiff No. 1 operates 65 TV channels in eight languages, including general entertainment and sports channels, and holds 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 (BCCI) and the International Cricket Council (ICC). Plaintiff No. 2 owns and operates the online video streaming platform/website known as Hotstar and the mobile application Disney+ Hotstar, through which all events for which the rights are enjoyed by Plaintiff No. 1 are also streamed. Plaintiff No. 2 is an affiliate company of Plaintiff No. 1., The Asia Cup cricket tournament is scheduled to commence on 27 August 2022 and continue until 11 September 2022. The Plaintiffs own the exclusive licence of the media rights of various sporting events telecast on their sports channels. As per a letter dated 18 August 2022, the Asian Cricket Council granted Plaintiff No. 1 the exclusive global media rights for the Asia Cup tournaments for the period 2018 to 2023., The present suit is filed against the following Defendants: (i) Defendants Nos. 1 to 11 are alleged rogue websites; (ii) Defendants Nos. 12 to 18 are the Domain Name Registrars of the domain names used by the rogue websites; (iii) Defendants Nos. 19 to 27 are Internet Service Providers (ISPs); (iv) Defendants Nos. 28 and 29 are the Department of Telecommunications and the Ministry of Electronics and Information Technology; (v) Defendant No. 30 is John Does., The Plaintiffs have a serious 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 27 August 2022 onward. Senior Counsel Mr. Chopra, appearing for the Plaintiffs, relies upon the documents on record for each website to show how the websites are generally involved in illegal streaming and broadcasting of pirated sporting content. He highlights that even past Asia Cup highlights are currently being streamed on Defendant No. 1's website and submits that new websites continuously surface, therefore a dynamic injunction ought to be granted by the Delhi High Court., A perusal of the letter dated 18 August 2022 issued by the Asian Cricket Council shows that Plaintiff No. 1 has been given exclusive global media rights by agreement dated 29 June 2017. The rights include television, audio, internet and mobile rights for all Asia Cup tournaments between 2018 and 2023. Hence, the ownership of the exclusive telecast, broadcast and online streaming rights in favour of the Plaintiff is not in doubt., The documents also show that the websites are not merely streaming Star Sports channels but various other established channels as well. Moreover, the broadcasting is not limited to cricket matches but also includes other sporting events such as the Tour de France and the NRL Rugby League. The Delhi High Court is convinced that the websites belonging to Defendants Nos. 1‑11 are rogue websites primarily consisting of pirated content. The identity of these websites is unknown as they are privacy‑protected by the Domain Name Registrars., The past experience of various sporting events shows that such events are usually unauthorisedly broadcast and streamed. The legal position on granting dynamic injunctions is settled in UTV Software Communications Ltd. v. 1337X.to (2019) 78 PTC 375 (Delhi High Court). Several other orders have also been passed by this Court with respect to rogue websites, such as CS(COMM) 157/2022 (Star India Pvt. Ltd. v. Live Flixhub.Net), CS(COMM) 471/2019 (Star India Pvt. Ltd. v. Moviemad.biz & Ors), and CS(COMM) 195/2019 (Star India Pvt. Ltd. v. Extramovies.host & Ors). These orders establish that such websites surface frequently and periodically, as domain names can be registered with minor modifications and the content can be easily moved from one website to another., Under such circumstances, the Delhi High Court is convinced that the Plaintiffs have made out a prima facie case for the grant of an ex‑parte ad interim 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 the Ministry of Electronics and Information Technology and the Department of Telecommunications ought to issue blocking orders to all the ISPs to block the said rogue websites., Considering the investment made by the Plaintiffs in acquiring the rights to these events, any illegal broadcasting would severely affect their monetary interest and diminish the value of the rights. Accordingly, till the next date of hearing, Defendants Nos. 1 to 11 and all others acting for or on their behalf shall be restrained from hosting, streaming, broadcasting, rebroadcasting, retransmitting or otherwise communicating to the public any cricketing events, extracts, excerpts or highlights relating to the Asia Cup 2022 commencing from 27 August 2022 to 11 September 2022. The Domain Name Registrars shall immediately block the said domain names and maintain the status quo. They shall also disclose to the Plaintiffs the following: (a) complete details (name, address, email address, phone number, IP address, etc.) of Defendants Nos. 1 to 11 and any other websites discovered during the proceedings that infringe the Plaintiffs' exclusive rights, copyrights and broadcast reproduction rights; (b) mode of payment and payment details used for registration of the domain names by the registrants; (c) details of other websites registered by Defendants Nos. 1 to 11 using similar payment details, as disclosed in clause (b), with the Domain Name Registrars Nos. 12 to 18; (d) details of complaints received by the Domain Name Registrars Nos. 12 to 18 in the past against Defendants Nos. 1 to 11., The Department of Telecommunications, the Ministry of Electronics and Information Technology and the ISPs shall block the websites of Defendants Nos. 1 to 11. 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 ISPs (Defendants Nos. 19 to 27) shall block access to the URLs and mobile applications within 24 hours and shall not permit download of these applications or streaming of the rogue websites. The websites are listed as follows: 1. //sportrush.xyz/ 2. //besthdplayer.click/ 3. //papahad1.xyz/ 4. // 5. //larsenik.com/ 6. // 7. //daddylive.futbol/ 8. //deliriousholistic.net/ 9. //ip1hd2.cf/ 10. //mhdtv.world/ 11. //, During the currency of these events covered by the Plaintiffs' agreements, if the Plaintiffs discover other mirror or rogue websites broadcasting the sporting events covered by the present suit, they may: (i) file an affidavit in this regard before the Delhi High Court along with evidence; the said websites shall be blocked with immediate effect upon notice being issued by the Plaintiffs to the Department of Telecommunications and the ISPs that such an affidavit has been filed; (ii) upon receipt of the notices and communications from the Plaintiffs that the affidavits have been filed, the Department of Telecommunications shall pass orders for blocking such further rogue websites immediately and, in any case, within 24 hours so that the websites do not continue to stream infringing content., 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. A rejoinder shall be filed within four weeks thereafter. The matter is listed on 12 October 2022 before the Joint Registrar and on 9 November 2022 before the Delhi High Court.
id_1307	0	Through: Mr. Sandeep Sethi, Senior Advocate with Mr. C. M. Lall, Senior Advocate with Mr. Shreya Sethi, Advocate versus Defendants. Through: Mr. Amit Sibal, Senior Advocate with Mr. Pravin Anand, Mr. Dhruv Anand, Ms. Udita, Mr. Revanta Mathur, Ms. Nimrat Singh and Mr. D. Khanna, Advocates for Defendants 1 to 4., Interim Application 512/2024 (seeking exemption from filing legal proceeding certificate of the Plaintiffs registered trademark). Exemption is granted, subject to all just exceptions. The certificate shall be filed before the next date of hearing. Accordingly, the application stands disposed of., Interim Application 513/2024 (exemption from pre‑litigation mediation). As the present suit contemplates urgent interim relief, in light of the judgment of the Supreme Court in Yamini Manohar v. T.K.D. Krithi, exemption from attempting pre‑institution mediation is granted. Disposed of., Interim Application 514/2024 (seeking exemption from filing original / certified / clearer / translated copies of documents, or with proper margins). Exemption is granted, subject to all just exceptions. Plaintiffs shall file legible and clearer copies of exempted documents, compliant with practice rules, before the next date of hearing. Accordingly, the application stands disposed of., Interim Application 515/2024 (seeking permission to file certain videos in a CD). Plaintiffs seek leave of the Delhi High Court to place on record certain video recordings, which form the subject matter of the present suit, in a compact disc. Rule 24 of Chapter XI of the Delhi High Court (Original Side) Rules, 2018, makes it clear that electronic records can be received in CD/DVD/Medium encrypted with a hash value. The rule is extracted below: “Reception of electronic evidence – A party seeking to tender any electronic record shall do so in a CD/DVD/Medium, encrypted with a hash value, the details of which shall be disclosed in a separate memorandum, signed by the party in the form of an affidavit. This will be tendered along with the encrypted CD/DVD/Medium in the Registry. The electronic record in the encrypted CD/DVD/Medium will be uploaded on the server of the Delhi High Court by the Computer Section and kept in an electronic folder which shall be labeled with the cause title, case number and the date of document uploaded on the server. Thereafter, the encrypted CD/DVD/Medium will be returned to the party on the condition that it shall be produced at the time of admission/denial of the documents and as and when directed by the Court/Registrar. The memorandum disclosing the hash value shall be separately kept by the Registry on the file. Compliance with this rule will not be construed as dispensing with the compliance with any other law for the time being in force including Section 65B of the Indian Evidence Act, 1872.” Registry may receive electronic record on the disc, as long as it is encrypted with a hash value or in any other non‑editable format. The video recording contained in the disc shall be placed in the electronic record of the present suit in a format which is non‑editable, so that the same can be viewed by the Delhi High Court during hearing. Application is disposed of., Let the plaint be registered as a suit. Issue summons in the suit. Mr. Pravin Anand, Advocate, accepts summons on behalf of Defendants 1 to 4. They waive the requirement of service of formal summons by the Registry and also confirm the receipt of the suit paper‑book. Let written statement be filed within the time prescribed in the Code of Civil Procedure, 1908. Issue summons to the remaining Defendants by all permissible modes on filing of process fee. Summons shall state that the written statements shall be filed by the Defendants within 30 days from the date of receipt of summons. Along with the written statements, Defendants shall also file affidavits of admission/denial of the documents of the Plaintiffs, without which the written statements shall not be taken on record., Liberty is given to Plaintiffs to file replications within 15 days of receipt of the written statements. Along with the replications, if any, filed by the Plaintiffs, affidavits of admission/denial of documents of the Defendants shall be filed by the Plaintiffs, without which the replications shall not be taken on record. If any of the parties wish to inspect any documents, the same shall be sought and given within the timelines., List before the Joint Registrar for marking of exhibits on 18 March 2024. It is made clear that any party unjustifiably denying documents will be liable to be burdened with costs. List before the Delhi High Court for framing of issues on 29 May 2024., Interim Application 511/2024 (under Order XXXIX Rule 1 & 2 of the Code of Civil Procedure, 1908, seeking ex‑parte, ad‑interim injunction against the Defendants). Issue notice. Mr. Pravin Anand, counsel for Defendants 1 to 4, accepts notice. He seeks and is granted four weeks time to file a reply. Rejoinder, if any, to be filed within two weeks thereafter. Issue notice to the remaining Defendants by all permissible modes upon filing of process fee, returnable on 29 May 2024., Mr. Sandeep Sethi, Senior Counsel for Plaintiffs, argues that the Plaintiffs, both collectively and individually, are the owners of the famous trademark MOTI MAHAL and related formative marks, used in relation to restaurants operating nationally and internationally since 1920. Mr. Sethi contends that the Defendants are misleading the public into believing that their DARYAGANJ restaurants are connected with the Plaintiffs’ predecessor’s first MOTI MAHAL restaurant in Daryaganj. This misleading representation is evidenced, according to Mr. Sethi, by the Defendants’ use of a picture of the Plaintiffs’ predecessor, the late Kundan Lal Gujral, on their Facebook page, misrepresenting it as that of the Defendants’ predecessor, the late Kundan Lal Jaggi. Furthermore, Mr. Sethi highlights Defendants’ manipulation of the photograph of the Moti Mahal restaurant in Peshawar on their website, substantiating this claim with a comparison to the original photograph shown on the Plaintiffs’ own website., Mr. Amit Sibal, Senior Counsel representing the Defendants, states that they were only recently provided with a copy of the plaint paper‑book and need time to file a detailed reply. He vehemently disputes Mr. Sethi’s contentions, labeling the suit as misconceived, baseless and lacking a cause of action. Mr. Sibal and Mr. Anand further argue that the Defendants have not engaged in any false representation or claim, and the allegations made in the suit are far from the truth. Regarding the screenshot extracted in paragraph 90 of the plaint, Mr. Sibal clarifies that it is not from the Defendants’ Facebook page and belongs to A to Z Kitchen, an entity unrelated to the Defendants. Regarding the photograph of the Moti Mahal restaurant in Peshawar, Mr. Sibal elucidates that the restaurant was established jointly by predecessors of both parties, thus invalidating any claim of exclusive rights over the image. He underscores that the Defendants are equally entitled to use this photograph and notes that the photograph on the Defendants’ website has been cropped to exclude the term MOTI MAHAL, rendering the Plaintiffs’ grievance unfounded. However, Mr. Sibal and Mr. Anand, acting on instructions and without prejudice to the Defendants’ rights and contentions, offer a conciliatory gesture. To alleviate the Plaintiffs’ concerns, albeit without conceding to any of the Plaintiffs’ claims, they commit to removing the disputed photograph from their website within one week from today. Their statement is taken on record., List before the Joint Registrar on 18 March 2024. List before the Delhi High Court on 29 May 2024.
id_1309	0	Dr. Mukut Nath Verma, the petitioner, appeared in person through video conferencing. The learned Additional Advocate General, Sri Manish Goel, assisted by Sri A.K. Sand, learned Additional Advocate General for the State respondent, represented the Union of India, through the Home Secretary., The writ petition seeks the following reliefs: (i) a writ of mandamus directing the SHO of Police Station Hazratganj Kotwali, Lucknow and the SHO of Police Station Colonelganj, Prayagraj to lodge FIRs under Section 154 of the Code of Criminal Procedure based on complaints dated 22‑12‑2020 and 07‑07‑2021 and to provide copies of the FIRs; (ii) a writ of mandamus directing the Central Bureau of Investigation to investigate both FIRs; (iii) a writ of mandamus directing the respondents to provide permanent security to the petitioner so that he may meet his client Mr. Mani Lal Patidar and pursue the petitions before any authority, as the petitioner has been receiving life threats from agents of respondents No. 8, 9, 10 and 11; (iv) a writ of mandamus directing respondents No. 1, 2, 3 and 4 to arrange a meeting with the petitioner and his client Mr. Mani Lal Patidar (IPS) for collection of pending fees and further instructions; (v) a writ of mandamus directing respondents No. 2, 3 and 4 to initiate departmental proceedings against respondents No. 5, 6, 8, 9, 10 and 11; (vi) a writ of mandamus directing respondents No. 2 and 4 to suspend respondents No. 5, 6, 8, 10 and 11 so that they cannot influence the investigation; (vii) a writ of mandamus directing respondent No. 7 to withhold the pension and all other dues of respondent No. 9 until the investigation is completed by the Central Bureau of Investigation and clearance is given by the Allahabad High Court; (viii) a writ of mandamus directing all respondents to provide protection to the life and limb of the petitioner so that he may perform his legal and professional duties continuously, including his pro bono litigation and legal awareness programmes in Uttar Pradesh; and (ix) any other relief that the Allahabad High Court deems fit in the interest of justice, equity and good conscience., The petitioner is a practicing advocate in the Supreme Court of India under the Advocates Act, 1961, enrolled with the Bar Council of Delhi, enrolment number D/1062/2014. According to the copy of the Aadhaar card dated 10 November 2020, his address is Khasra No. 433/221, Chhattarpur Pahari, South Delhi, 110074, whereas the writ petition states his address as C/o 177‑P, Aram Bagh, Paharganj, New Delhi‑110055., The petitioner’s client, Mr. Mani Lal Patidar, aged about 32 years, is an Indian Police Service officer of the 2014 batch assigned to the Uttar Pradesh Police Cadre. He hails from Rajasthan, belongs to a middle‑class family with no political background, and is described as disciplined, honest, energetic and law‑abiding. He was posted as Superintendent of Police of Mahoba district in 2019 and worked for the safety and security of the nation., In 2020, the then Director General of Police of Uttar Pradesh, Mr. Hitesh Chandra Awasthi (Indian Police Service, retired), and the Additional Chief Secretary (Home), Mr. Awanish Kumar Awasthi (Indian Administrative Service), allegedly pressured Mr. Patidar to support the interests of the mining mafia (Khanan Mafia). Mr. Patidar refused to cooperate, continued to pursue legal action against illegal mining, and consequently faced hostility from the aforementioned officials., The respondents allegedly produced a fabricated video that went viral on social media, containing false allegations that Mr. Patidar had abetted Mr. Indrakant Tripathi (now deceased) in committing suicide. The video was purportedly intended to implicate Mr. Patidar in a false charge and to secure a wrongful conviction., On 9 September 2020, the Chief Minister of Uttar Pradesh suspended Mr. Patidar, allegedly to protect the mining mafia. Following this, two false FIRs were lodged: FIR No. 0505 dated 10 September 2020 at Police Station Kotwali Nagar, Mahoba, under Section 384 of the Indian Penal Code and Sections 7/13 of the Prevention of Corruption Act, 1988; and FIR No. 0234 dated 11 September 2020 at Police Station Kabrai, Mahoba, under Sections 387, 307 (later converted to 302 and then 306), 120B of the IPC and Sections 7/13 of the Prevention of Corruption Act, 1988. A Special Investigation Team headed by Mr. Vijay Singh Meena (Indian Police Service), Inspector General, Varanasi zone, was constituted to investigate., The petitioner was authorized as legal representative and advocate for Mr. Patidar by an email dated 21 September 2020 (Annexure No. 3). The email requested that Dr. Mukut Nath Verma appear before the Special Investigation Team on behalf of Mr. Patidar due to the petitioner’s illness., On 27 November 2020, while Mr. Patidar was traveling to meet the petitioner to discuss legal matters and pending professional fees, he was arrested by the Uttar Pradesh Police and detained in a pre‑planned manner for ulterior motives., The petitioner submitted a written complaint on 22 December 2020 to the SHO, Police Station Hazratganj Kotwali, Lucknow (Respondent No. 5), seeking registration of an FIR against the then Director General of Police, Mr. Hitesh Chandra Awasthi. Copies of the complaint were also forwarded to the Lucknow Police Commissioner, the Chief Minister of Uttar Pradesh, the Governor of Uttar Pradesh, and other authorities (Annexure No. 10)., Subsequent communications dated 24 December 2020 (email) and 26 December 2020 (speed post) were addressed to the Chief Minister of Uttar Pradesh and the Police Commissioner, requesting that a copy of the FIR be provided within 72 hours, invoking the Supreme Court decision in Lalita Kumari v. State of Uttar Pradesh (2014) 2 SCC 1, which holds that registration of an FIR under Section 154 of the Code of Criminal Procedure is mandatory when cognizable information is disclosed. Respondents No. 5 (SHO) and the Police Commissioner allegedly ignored these directions., Respondents No. 9 (Mr. Hitesh Chandra Awasthi, retired Indian Police Service) and No. 8 (Mr. Awanish Kumar Awasthi, Indian Administrative Service) are alleged to have conspired with the mining mafia, facilitated the false FIRs, suspended Mr. Patidar without proper inquiry, abducted him on 27 November 2020, fabricated documents, and issued a fake award of Rs 25,000 on 29 November 2020 (later increased to Rs 50,000 on 6 December 2020) to pressure Mr. Patidar. They are also accused of misleading the Allahabad High Court and subordinate courts., The petitioner contends that the Uttar Pradesh police officers, instead of serving the public, are engaged in unlawful activities for personal gain, including pressurising criminals, accepting bribes, and obstructing investigations. Victims face difficulties in lodging FIRs, obtaining receipts, and receiving protection, while honest officers are harassed and false allegations are propagated through media., Despite numerous representations by the petitioner to state and central authorities, the whereabouts of Mr. Mani Lal Patidar remain undisclosed, and no action has been taken by the Uttar Pradesh Police regarding his alleged illegal detention and disappearance., The affidavit accompanying the writ petition, sworn by the petitioner, states that the deponent is the petitioner, a Hindu advocate, and that the contents of the affidavit and the writ petition are true to his personal knowledge, based on records, information received, and legal advice, with no material concealed., Under Article 226 of the Constitution of India, the petitioner submits a declaration that, due to the COVID‑19 pandemic, certain formalities of the affidavit could not be fully complied with, but will be completed once normalcy returns, and requests the Allahabad High Court to record the declaration as part of the criminal miscellaneous writ petition., The email authorizing representation (Annexure‑3) reads: “I would like to inform you that my father is suffering from cold‑cough with high fever and has tested COVID‑positive. I am also unwell and unable to appear before the Special Investigation Team. I hereby authorize Dr. Mukut Nath Verma, Advocate, Supreme Court of India, to appear on my behalf, collect necessary papers and represent me before the SIT.”, The petitioner has also filed a Habeas Corpus writ petition (No. 353 of 2021) seeking production of Mr. Mani Lal Patidar, which is pending. Mr. Patidar previously filed Criminal Miscellaneous Writ Petition No. 11301 of 2020, which was dismissed on 2 November 2020, and subsequent anticipatory bail applications (Criminal Miscellaneous Application No. 8921 of 2020 and No. 8533 of 2020) were rejected by the learned Single Judge on 16 December 2020 and 3 December 2020 respectively., The orders in those cases note that the applicant was alleged to be absconding and that a FIR under Section 174‑A IPC (Crime No. 0331 of 2020, Police Station Kabrai, Mahoba) had been lodged, but there is no mention of the alleged disappearance of Mr. Patidar as claimed in the present writ petition., The petitioner’s attempts to obtain information about the family of Mr. Patidar, the source of litigation finance, and other relevant details remain unaddressed in the writ petition.
id_1309	1	Perusal of the contents of the afore‑quoted reply/letter of the Superintendent of Police, Mahoba dated 21.12.2020 prima facie reflects about the conduct of the petitioner., Perusal of the swearing clause as afore‑quoted would reveal that the afore‑quoted paragraphs of the writ petition have been sworn by the petitioner herein i.e. an advocate, on the basis of his personal knowledge. It has not been stated in the writ petition how the petitioner, being an advocate, has personal knowledge of the allegations made in the afore‑quoted paragraphs of the writ petition, which relate to the accused Mani Lal Patidar personally and at best may be within his (Mani Lal Patidar) knowledge. Thus, swearing of the afore‑quoted paragraphs of the writ petition by the petitioner on personal knowledge is without foundation as well as a conscious attempt to mislead the High Court of Allahabad., From the facts briefly noticed above, it appears that the accused Mani Lal Patidar is absconding and against him proceedings under Section 82 of the Criminal Procedure Code have also been initiated and whose criminal miscellaneous writ petitions have been dismissed and anticipatory bail applications have been rejected. The habeas corpus writ petition filed by the petitioner herein to produce the accused Mani Lal Patidar is stated to be pending. Under the circumstances, the present writ petition is apparently an abuse of process of law by the petitioner herein, who has stated himself to be an advocate., Thus, in view of the facts and discussion noted above, the reliefs (I) and (II) have neither any substance nor can be granted. The reliefs (III) and (IV) sought by the petitioner herein are mischievous in nature. The relief sought by the petitioner for collecting his remaining pending fees from the accused Mani Lal Patidar cannot be granted. In Improvement Trust Ropar through its Chairman vs. S. Tejinder Singh Gujral and others, 1995 Supp. (4) SCC 577 (para‑3), the Hon'ble Supreme Court held that the High Court had allowed the writ petition filed by the respondent‑advocate for the recovery of his professional fees from the petitioner. No writ petition can lie for recovery of an amount under a contract. The High Court was clearly wrong in entertaining and allowing the petition. There is no separate law for the advocates., In Dhanraj Singh Choudhry vs. Nathulal Vishwakarma, (2012) 1 SCC 741 (para‑25), the Hon'ble Supreme Court observed: Any compromise with the law's nobility as a profession is bound to affect the faith of the people in the rule of law and, therefore, unprofessional conduct by an advocate has to be viewed seriously. A person practising law has an obligation to maintain probity and high standard of professional ethics and morality., In O.P. Sharma vs. High Court of Punjab & Haryana, (2011) 6 SCC 86 (para‑38), the Hon'ble Supreme Court held: An advocate's duty is as important as that of a judge. Advocates have a large responsibility towards society. A client's relationship with his/her advocate is underlined by utmost trust. An advocate is expected to act with utmost sincerity and respect. In all professional functions, an advocate should be diligent and his conduct should also be diligent and should conform to the requirements of the law by which an advocate plays a vital role in the preservation of society and the justice system. An advocate is under an obligation to uphold the rule of law and ensure that the public justice system is enabled to function at its full potential. Any violation of the principles of professional ethics by an advocate is unfortunate and unacceptable. Ignoring even a minor violation or misconduct militates against the fundamental foundation of the public justice system., The principles laid down in the cases of Dhanraj Singh Choudhry and O.P. Sharma (supra) as afore‑quoted have been quoted with approval by the Hon'ble Supreme Court in Chandra Prakash Tyagi vs. Benarsi Das (deceased) by legal representatives and others, (2015) 8 SCC 506., From perusal of the present writ petition, it appears that the petitioner herein has been continuously filing various applications at different forums and has also filed the present writ petition. But he has not disclosed the source of finance of the litigation for his alleged client, i.e., the accused Mani Lal Patidar. Non‑disclosure of this fact itself indicates some hidden motive in filing the present writ petition., The reliefs (V), (VI) and (VII) as sought in the present writ petition are beyond the scope of a criminal miscellaneous writ petition inasmuch as departmental proceeding, suspension and pension of an employee are all service law matters., Neither the employee, i.e., the accused, nor any of his family members have filed the present writ petition. There is nothing on record to show that the accused employee Mani Lal Patidar or any of his family members has authorised the petitioner herein to file the present writ petition for the relief sought. Thus, the petitioner herein has unauthorisedly filed the present writ petition., The relief No. (VIII) sought by the petitioner, under the facts and circumstances of the case as discussed above, is an abuse of process of the High Court of Allahabad and such reliefs, without there being any material on record, cannot be granted., From perusal of the afore‑quoted paragraphs of the writ petition, it appears that serious allegations have been made by the petitioner against the respondent authorities but neither any supporting document has been annexed with the writ petition nor any material is available on record to believe the contention. Although the petitioner in the affidavit filed in support of the writ petition has sworn the afore‑quoted paragraphs on his personal knowledge, he has completely failed to disclose his source of knowledge as well as material, if any, to support the allegations., It is also obvious from reading the afore‑quoted paragraphs of the writ petition that only vague allegations of mala fide have been levelled and that too without any basis. The mala fide can be made out with a specific object of damaging the interest of the petitioner and such action is helping someone which results in damage to the party alleging mala fides. It would be seen that there is no allegation whatsoever in the pleadings in respect of the petitioner. An inference of mala fides has been sought to be drawn in the course of vague pleading that the respondent authorities are allegedly helping the mining mafias., Serious allegations have been made against the respondents, which appear to be mala fide in order to malign the image of the State respondents. The petitioner is expected to disclose true and correct facts before making any allegation against respondents. The petitioner, being a practising lawyer, is also expected to verify the same himself and then level such allegations against the respondents. It is also expected that the source of such information as well as material, if any, must be brought on record and in the absence thereof, the allegations made in the writ petition cannot be accepted., For all the reasons aforesaid and the law laid down by the Hon'ble Supreme Court in the judgments referred above, the writ petition is dismissed with costs of Rs. 5 lakhs (five lakhs), which shall be deposited by the petitioner with the High Court Legal Services Committee, High Court Allahabad, within one month from today., A copy of this order along with a copy of the writ petition shall also be sent by the Registrar General of the High Court of Allahabad to the Bar Council of Delhi for taking appropriate action against the petitioner – Dr. Mukut Nath Verma, Advocate (Advocate Roll No. D/1062/2014) in accordance with law and without being influenced by any of the observations made in the body of this order.
id_131	0	Criminal Writ Jurisdiction Case No. 240 of 2022 arising out of Police Station Case No. 2 Year 2021, Thana Vigilance, District Patna. Yadav, resident of Vice Chancellor House, Magadh University, Parmanand Path, near D.M. Residence, Gaya, Bihar, is the petitioner. The respondents are: (1) The State of Bihar through the Chief Secretary, Bihar, Patna; (2) The Principal Secretary of the Honorable Governor, Bihar, Patna; (3) The State of Bihar through the Additional Chief Secretary, Home Police Department, Government of Bihar, Patna; (4) The Additional Chief Secretary, Vigilance Department, Government of Bihar; (5) The Director General of Police, Special Vigilance Unit, Daroga Prasad Rai Path, Patna, Bihar; (6) The Additional Director General of Police, Special Vigilance Unit, Daroga Prasad Rai Path, Patna, Bihar; (7) The Superintendent of Police, Special Vigilance Unit, Patna, Bihar; (8) The Investigation Officer cum Deputy Superintendent of Police, Special Vigilance Unit, Patna, Bihar., Opposite party is the Vigilance Investigation Bureau, Bihar, Patna. For the petitioner: Mr. Jitendra Singh, Senior Advocate; Mr. Ranjeet Kumar, Advocate; Mr. Jai Prakash Singh, Advocate; Mr. Yogesh Kumar, Advocate; Mr. Yash Singh, Advocate; Ms. Ranjeeta Singh, Advocate; Mr. Ayush Kumar, Advocate; Mr. Tej Pratap Singh, Advocate. For the Special Vigilance Unit: Mr. Rana Vikram Singh, Advocate. For the State: Mr. Mohammad Sufyan. Date: 24-05-2022., Both petitions, Criminal Writ Jurisdiction Case No. 240 of 2022 seeking quashing of the subject FIR bearing Special Vigilance Unit Police Station Case No. 02 of 2021, and Criminal Miscellaneous No. 8186 of 2022 seeking anticipatory bail in the subject FIR, were heard together and are disposed of by this common order., Heard: Mr. Jitendra Singh, Senior Advocate for the petitioner in both petitions, and Mr. Rana Vikram Singh, Advocate for the Special Vigilance Unit., The subject FIR bearing Special Vigilance Unit Police Station Case No. 02 of 2021 is sought to be quashed on the ground that it contravenes the newly added Section 17A of the Prevention of Corruption Act, 1988, which requires prior sanction of the authority competent to remove the petitioner from his office before inquiring or investigating any offence alleged to have been committed by him in his capacity as Vice‑Chancellor, as the offences alleged are prima facie relatable to a decision taken by him in discharge of his official functions., A brief description of the accusation against the petitioner is necessary for deciding the applications. If the petitioner succeeds in the first petition, there will be no need to press the anticipatory bail application., The FIR discloses that the petitioner, while serving as Vice‑Chancellor of Magadh University, Bodh Gaya, entered into a criminal conspiracy with his personal assistant Subodh Kumar and two private firms—M/s. XLICT Software Private Ltd., Lucknow, and M/s. Poorva Graphics and Offset Printers—as well as the Finance Officer of Veer Kunwar Singh University, the Registrar of Patliputra University, and others, and dishonestly cheated the Government ex‑chequer to the extent of approximately Rs 20 crores during the period 2019‑21 while making purchases of e‑books and OMR answer‑sheets for university examinations., The reason for prosecuting the petitioner is that purchases worth several crores were made by adopting an arbitrary procedure with the sole purpose of obtaining undue advantage. No requisition or tender was issued, and the materials were not procured through the Government e‑Marketplace, contrary to financial rules, and no procedural formalities were complied with despite the petitioner being apprised of such requirements., The allegation, in sum, is that ignoring the advice of competent officers, the petitioner caused payment to private firms of huge amounts from Magadh University and Veer Kunwar Singh University without assessing the requirement for such purchases, violating tender procedures without justification, and inflating costs. The petitioner was also holding the additional charge of Vice‑Chancellor of Veer Kunwar Singh University., The e‑books purchased for Veer Kunwar Singh University have not been put to any use because there was insufficient infrastructure for storage and the purchases were made against the advice of the heads of departments, whose sanction and recommendation were necessary for procurement., The FIR further discloses that no records of supply were preserved by the accused persons, and notwithstanding objection notes from officers dealing with financial matters and the then Vice‑Chancellor of Veer Kunwar Singh University, payments were made to the private firms with the active support of the Finance Officer of Veer Kunwar Singh University and the Registrar of Patliputra University, both of whom have also been made accused., The FIR also alleges that the petitioner has acquired huge movable and immovable property at different places from the proceeds of crime., Thus, the source information discloses commission of offences under Sections 120B and 420B of the Indian Penal Code read with Sections 12, 13(ii) and 13(i)(b) of the Prevention of Corruption Act., The petitioner’s Senior Advocate drew the Court’s attention to a letter dated 25‑01‑2022 issued by the Principal Secretary to the Honorable Governor of Bihar, addressed to the Chief Secretary of the State of Bihar, stating that the Governor‑cum‑Chancellor of the universities has come to know that an FIR has been instituted against the petitioner, a Vice‑Chancellor, in violation of Section 17A of the Act. The letter points out that prior sanction of the Chancellor is necessary before embarking on any investigation for offences under the Prevention of Corruption Act and that the FIR was lodged without such sanction, creating an atmosphere of fear among university employees and adversely affecting the educational environment. The letter suggested that any action or investigation must follow the procedure prescribed under Section 17A., Section 409 of the Indian Penal Code has been added to the list of charges by order dated 03‑02‑2022 of the learned Special Judge, Vigilance., On simultaneous searches of the petitioner’s residences at Bodh Gaya and Gorakhpur, several incriminating materials were recovered, making out a prima facie case of offences under various sections of the Indian Penal Code and the Prevention of Corruption Act, 1988. Cash amounting to Rs 1,82,75,000 (One crore eighty‑two lakhs seventy‑five thousand) was recovered from an almirah in the Gorakhpur residence. Documents showing investment of approximately Rs 48,52,000 in landed properties and pass‑books in the names of the petitioner and his wife, revealing stashing of Rs 99,87,193, were recovered. Gold jewellery worth Rs 42,84,247 and silver jewellery worth Rs 1,93,620, as well as foreign currency without valid paperwork, were also recovered. From the Bodh Gaya official accommodation, Rs 1,57,000 in cash and documents related to confidential examination department work and payments to the two companies named in the FIR were recovered., Preliminary investigations revealed the petitioner’s active involvement and connivance in preparing forged agreements with the firms, fraudulent payments for OMR question booklets, e‑books and other materials to the extent of Rs 17 crores (Rs 15.55 crores plus Rs 1.45 crores). It also emerged that even after degrees had been printed, a decision was taken to print another set of degrees at exorbitant cost., The petitioner’s Senior Advocate argued that the interdict against launching any prosecution without prior sanction of the Chancellor has been completely disregarded and that the FIR was lodged despite this requirement. He submitted that all alleged offences are relatable to the official functions of a Vice‑Chancellor and, even if negligent, do not remove the protection granted under Section 17A of the Act., He further argued that the purchase of OMR question booklets for university examinations and e‑books for the university library falls within the domain of the functions of a Vice‑Chancellor, and therefore prior sanction of the Chancellor is required before investigating the alleged offences., The Special Vigilance Unit defended the lodging of the FIR without prior sanction by contending that in matters of financial irregularities where the act discloses a prima facie offence under the Act and other sections of the Indian Penal Code, no sanction is required, as the protection concerns decisions taken by a public servant in discharge of official functions, not any action erga omnes by the accused., Source information to the Vigilance indicated that payments for purchase of OMR answer sheets and e‑books were credited to the account of a private person whose identity could not be traced, illustrating a breach of trust by a high‑ranking university official., The petitioner maintains that the materials enumerated in the FIR were collected in the subsequent investigation, which is prohibited without appropriate sanction from the concerned authority., Consequently, the petitioner contends that the provisions of Section 17A of the Act should not be rendered nugatory, and that the FIR and the ensuing investigation, being in violation of Section 17A, must be quashed and the investigation stopped., To appreciate the parties’ contentions, it is necessary to examine the provisions of Section 17A of the Act, introduced by Act No. 16 of 2018 with effect from 26‑07‑2018., Section 17A reads: ‘Enquiry or investigation of offences relatable to recommendations made or decision taken by public servant in discharge of official functions or duties. No police officer shall conduct any enquiry, inquiry or investigation into any offence alleged to have been committed by a public servant under this Act, where the alleged offence is relatable to any recommendation made or decision taken by such public servant in discharge of his official functions or duties, without the previous approval (a) in the case of a person who is or was employed, at the time when the offence was alleged to have been committed, in connection with the affairs of the Union, of that Government; (b) in the case of a person who is or was employed, at the time when the offence was alleged to have been committed, in connection with the affairs of a State, of that Government; (c) in the case of any other person, of the authority competent to remove him from his office, at the time when the offence was alleged to have been committed: Provided that no such approval shall be necessary for cases involving arrest of a person on the spot on the charge of accepting or attempting to accept any undue advantage for himself or for any other person. Provided further that the concerned authority shall convey its decision within a period of three months, which may, for reasons to be recorded in writing by such authority, be extended by a further period of one month.’, A plain reading of Section 17A makes it clear that the protection granted to a public servant is limited to actions taken by him that are relatable to any recommendation or decision made by him in discharge of his official functions or duties., The first proviso clarifies that no prior approval is necessary for cases involving arrest on the spot for the charge of accepting or attempting to accept any undue advantage for himself or any other person., The second proviso imposes a duty on the authority vested with the power to grant sanction to decide within three months, extendable by one month for reasons recorded in writing., Section 2(d) of the Act defines ‘undue advantage’ as any gratification whatsoever, other than legal remuneration., It is therefore necessary to determine what constitutes an act that can be said to be relatable to any recommendation or decision made in discharge of official functions, for it to fall within the protective umbrella of Section 17A., The primary law regulating corruption‑related offences by public servants is the Prevention of Corruption Act, 1988, which was previously considered insufficient to tackle the growing menace of corruption., Expert bodies such as the Second Administrative Reforms Commission and the Law Commission of India examined the 1988 Act and suggested changes, including redefining bribe and procedures for attachment of property of public servants. In 2008, a bill to amend the Act was introduced, seeking to extend the requirement of prior sanction under Section 17A, but it lapsed with the dissolution of the 14th Lok Sabha., By 2011, India had ratified the United Nations Convention against Corruption (UNCAC) 2005 and agreed to align domestic laws with it. In August 2013, the Prevention of Corruption (Amendment) Bill, 2013 was placed in Parliament, stating that the amendment was to bring the Act in line with UNCAC and to protect public servants from harassment by requiring prior sanction., Prior sanction for prosecution already existed in the Act, but extending it to the investigation stage generated discussion. The Second Administrative Reforms Commission recommended limited sanction even at the prosecution stage., The requirement of prior sanction before investigation was not approved in H.N. Rishbud and Inder Singh v. State of Delhi, AIR 1955 SC 196. The only law containing a similar provision for Joint Secretary and above was Section 6A of the Delhi Special Police Establishment Act, 1946, which was struck down by the Supreme Court as an impermissible classification., Subsequent amendments expanded the definition of bribe and clarified acts constituting criminal misconduct by a public servant, including fraudulent misappropriation of property and intentional enrichment disproportionate to known sources of income. Section 17A was inserted to require prior sanction before investigation., The purpose behind enacting Section 17A was to protect public servants from malicious and vexatious inquiries or investigations and to prevent them from being troubled for taking honest decisions. Public servants with decision‑making responsibilities must act fairly, fearlessly and impartially, and the protective insulation aims to prevent unfounded criminal action without foundational facts., The Legislature and the Judiciary have continuously grappled with the menace of corruption, which has a deleterious effect on the nation’s economy and public confidence in government., Understanding the background of Section 17A requires a historical perspective., In Vineet Narayan and Others v. Union of India (1998) 1 SCC 226, the Supreme Court, noting the lack of probity in public life, issued directions for the proper functioning of the Central Bureau of Investigation and gave statutory status to the Central Vigilance Commission, aiming to prevent honest officers from being hindered in investigating high‑ranking functionaries., Holders of public office are entrusted with powers to be exercised in public interest alone; any breach of trust must be severely dealt with, and offences must be promptly investigated and prosecuted to uphold the rule of law., The Government of India earlier issued Single Directive No. 4.7(3), which prohibited any inquiry against a decision‑making level officer (Joint Secretary or equivalent or above) in the Central Government or officers on deputation to public sector undertakings, without prior sanction of the Secretary of the concerned department., In Vineet Narayan, the aforesaid Single Directive was quashed., The Supreme Court held that law does not classify offenders differently for investigation and prosecution; every person accused of the same offence must be dealt with equally, and classification based on status is unjustified., The Court also referred to Lord Nolan’s report on Standards in Public Life, listing seven principles: (I) selflessness; (II) integrity; (III) merit‑based decision‑making; (IV) accountability; (V) openness; (VI) honesty; (VII) leadership by example., The Supreme Court defined the role of public office holders, stating that any deviation from rectitude amounts to breach of trust and must be severely dealt with., Section 6A of the Delhi Police Establishment Act, 1946, has been struck down as unconstitutional in Subramanian Swamy v. Director, CBI, 2014 (8) SCC 682., The reference to Section 6A is relevant because it is similar in import to Section 17A of the Prevention of Corruption Act., After the Vineet Narayan decision, an ordinance was passed to comply with the Supreme Court directions. A Central Vigilance Commission Bill, 1998 was introduced but lapsed; it was re‑introduced as the Central Vigilance Commission Bill, 2003, passed by both houses and received presidential assent on 11‑09‑2003., Section 6A of the Delhi Special Police Establishment Act, 1946 read: ‘Approval of Central Government to conduct inquiry or investigation. (1) The Delhi Special Police Establishment shall not conduct any inquiry or investigation into any offence alleged to have been committed under the Prevention of Corruption Act, 1988 except with the previous approval of the Central Government where such allegation relates to (a) employees of the Central Government of the level of Joint Secretary and above; and (b) officers appointed by the Central Government in corporations, government companies, societies and local authorities owned or controlled by that Government. (2) Notwithstanding, no such approval shall be necessary for cases involving arrest on the spot on the charge of accepting or attempting to accept any gratification other than legal remuneration.’, Several writ petitions were filed before the Supreme Court under Article 32 challenging the constitutionality of Section 6A, questioning it on the basis of Article 14 of the Constitution., The provision was alleged to be subversive of independent investigation of public office holders, striking at the core of the rule of law, and was described as irrational, arbitrary, and an attempt to resurrect the quashed Single Directive., The Supreme Court found the classification in Section 6A based on service status impermissible under Article 14, as it defeated the purpose of uncovering prima facie truth in graft allegations., The Court observed that prior approval of the Government would indirectly forewarn officers under investigation, undermining the essence of skillful police inquiry.
id_131	1	It was also observed that an office of public power cannot be the workshop of personal gain., In this factual background, the requirement under Section 17A of the Prevention of Corruption Act, 1988 has to be understood., The Prevention of Corruption Act, 1988 is a special statute and the very preamble of the Act declares that it has been enacted to consolidate and amend the law relating to prevention of corruption and for the matters connected therewith., With the amendment of the Prevention of Corruption Act, 1988 and insertion of Section 17A, which is in pari materia as noted above similar to the now invalid Section 6(A) of the Delhi Police Establishment Act, 1946, what has been protected is the action of a public servant which is relatable to any recommendation made by him or decision taken by such public servant in discharge of his official duties and not every action which prima facie is criminal in nature., In order to appreciate what actually would constitute an act by a public servant in discharge of his official functions or duties, it would be profitable to refer to Section 197 of the Code of Criminal Procedure, which contemplates prior sanction for prosecution and treats it as sine qua non for prosecuting an offender who is a public servant under the Indian Penal Code, if the offence alleged has been committed by him while acting or purporting to act in the discharge of his official duty, even though Section 197(1) of the Code of Criminal Procedure and Section 17A of the Prevention of Corruption Act, 1988 operate in two different fields and in different situations., Section 197(1) of the Code of Criminal Procedure, 1973 reads as follows: \Prosecution of Judges and public servants. (1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction. (a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government; (b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government: Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of Article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression \State Government\ occurring therein, the expression \Central Government\ were substituted.\, Similar provision was there in Government of India Act, 1935., In Dr. Hori Ram Singh vs. the Emperor; AIR 1939 FC 43 the judges of the Federal Court had an occasion to look into Section 270 of the Government of India Act, 1935, which is, as noted above, exactly similar to Section 197 of the Code of Criminal Procedure., While interpreting the said Section, Sulaiman J. observed that the Section does not mean that the very act which is the gravamen of the charge and constitutes the offence should be the official duty of the servant of the Crown. Such an interpretation would involve a contradiction in terms, because an offence can never be an official duty. The words used in the Section are not in respect of any official duty but in respect of any act done or purporting to be done in the execution of his duty. The two expressions are obviously not identical., The test, according to the Federal Court, is not that the offence is capable of being committed only by a public servant and not by anyone else, but that it is committed by a public servant in an act done or purporting to be done in execution of his duty. An act cannot be purported to be done in execution of duty unless the offender professes to be acting in pursuance of his official duty and means to convey to the mind of another, an impression that he is so acting., However, it was clarified that such protection did not apply to acts done purely in a private capacity by a public servant. An example was given that if a public servant accepts a reward or bribe while actually engaged in some official work, he does not accept it in his official capacity, much less in the execution of any official capacity even though it is quite certain that he could never have taken the bribe unless he were the official in‑charge of some official work. In such a case he merely uses his official position to obtain the illegal gratification., The opinion of Sulaiman J. was concurred by Vardhacharya J., who held that the question is substantially one of fact, to be determined with reference to the act complained of and the attendant circumstances, and it would not be desirable to lay down any hard and fast test., In HHB Gill vs. The King; AIR 1948 PC 128, the Judicial Committee of the Privy Council, while referring to the explanation in Dr. Hori Ram Singh, explained Section 197 of the Code of Criminal Procedure by saying that a public servant can only be said to act or to purport to act in the discharge of his official duty if his act lies within the scope of his official duty. It further explained that a judge neither acts nor purports to act as a judge in receiving a bribe, though the judgment he delivers may be such an act; nor does a government medical officer act or purport to act as a public servant in picking the pocket of a patient whom he is examining, though the examination itself may be such an act. The test therefore was whether the public servant, if challenged, can reasonably claim that what he does, he does in virtue of his office., Justice Vivian Bose, J., in Shreekantiah Ramayya Munipalli vs. State of Bombay; AIR 1955 SC 287, cautioned that if the provisions of Section 197 of the Code of Criminal Procedure are construed too narrowly, they can never be applied, for of course it is not part of an official duty to commit an offence. The focus should be on the act, because an official act can be performed in the discharge of official duty as well as in dereliction of it., Not every offence committed by a public servant that requires sanction under Section 197(1) of the Code of Criminal Procedure, nor every act done by him while he is actually engaged in the performance of his official duties, is such that, if questioned, it could be claimed to have been done by virtue of the office. Sanction is necessary only when the act complained of is directly connected with the official duties. (Amrik Singh vs. State of Pepsu; AIR 1972). A challenge was thrown against Section 197 of the Code of Criminal Procedure as discriminatory and violative of Article 14 of the Constitution in Matajog Dobey vs. H.C. Bhari; AIR 1956 SC 44., While upholding the constitutionality and validity of Section 197(1) of the Code of Criminal Procedure, the Constitution Bench of the Supreme Court of India declared that no question of sanction can arise unless the act complained of is an offence; the only point to determine is whether it was committed in the discharge of official duty. There must be a reasonable connection between the act and the official duty., It is required to be found out whether the act complained of and the official duty are so interrelated that one can reasonably postulate that it was done by the accused in the performance of official duty, though possibly in excess of the needs and requirements of the situation., It was also held that the requirement of such sanction would have to be determined from stage to stage of the case., Even with the explanation of Section 197(1) of the Code of Criminal Procedure by the outstanding judges of this country, there remained a real difficulty in applying the test to factual situations., Recently, in Rakesh Kumar Mishra vs. State of Bihar; AIR 2006 SC 820, it was held that before Section 197 can be invoked, it must be shown that the official concerned is accused of an offence for an act which has been committed in connection with the discharge of official duty or is merely a cloak of officialdom for doing the objectionable act. Whether there is a reasonable connection between the act and the performance of official duty can be tested by putting a question to him whether he is answerable for a charge of dereliction of his official duty and if the answer is affirmative, it could be said that the act was in discharge of his official duty and that there was connection between the act complained of and the official duty., The primal object therefore is to protect public officers who have honestly discharged their duties in the purported exercise of their powers., If the act complained of has no nexus or reasonable connection or relevance to the official act or duty and the act is otherwise illegal, unlawful or in the nature of an offence, the shelter of Section 197 of the Code of Criminal Procedure is not available; the protection is qualified and conditional. (Shankaran Moitra vs. Sadhana Das & Anr.; (2006) 4 SCC 584)., With the aforesaid background facts, viz. declaration of Section 6(A) of the Delhi Special Police Establishment Act, 1946 to be unconstitutional and the conditions under which protection could be granted under Section 197(1) of the Code of Criminal Procedure, if Section 17A of the Prevention of Corruption Act is analyzed, it becomes clear that it is only for the purpose of protecting public servants from baseless prosecution., The protective shield is for an honest public servant and not for a corrupt one., There is a clear division between those acts which constitute an offence and those acts, though done while discharging the official duties of the public servant, do not constitute an act done in exercise of official duties or functions., The expressions used in Section 17A clearly reflect the legislative intent that there is no blanket protection; otherwise it would not satisfy the test of constitutionality. The use of the words relatable to any recommendation made or decision taken by a public servant in discharge of his official function or duties tells it all., It cannot be gainsaid that a public servant cannot act fearlessly if he is not insulated from frivolous and unnecessary complaints. Every decision made by him ought not to be looked at with suspicion; otherwise no honest official would take any lead in taking any decision which might raise eyebrows of some section of society. Many times, a decision taken under public law can be less advantageous or harmful for some persons, especially when a policy decision is taken at a higher level. In order to provide a protective, safe and congenial atmosphere for a public servant to undertake such decisions, a measure like Section 17A has been enacted., One cannot also lose sight of the fact that Section 6(A) of the Delhi Special Police Establishment Act, 1946 was held to be unconstitutional because it made a classification with respect to status of the offender and did not leave it at protecting any officer or holder of a public office who could have taken a decision against which allegation could be raised that it was for the purposes of achieving personal gain or for gain to his near and dear ones, as also because requiring any sanction before investigation may breach the secrecy of the investigation and impede its pace., As explained in the judgments referred to above, classification is permissible provided it meets the twin test of being reasonable and having a proximate connection with the object sought to be achieved by such classification., Section 17A of the Prevention of Corruption Act therefore may not be straightaway dubbed as a resurrection of single directive 4.7.3 of the Central Government or Section 6(A) of the Delhi Special Police Establishment Act, 1946 which has been held to be unconstitutional. A classification has been made but it has an object viz. to insulate an action of a holder of public office, if it is in relation to any recommendation made by him or a decision taken in discharge of his official function or duties., However, such classificatory protection, which is a shield against unnecessary prosecution of honest officers, cannot be used as a sword to stifle prosecution for per‑se criminal offences which can never be in discharge of official duty or in connection with any recommendation made by a high‑position holder of public office. The protective cover is a permitted exception to the equality provision of the Constitution., Any unnecessary and broad interpretation of the section would defeat the very purpose of such protective discrimination in favour of honest and dutiful officers. Had such not been the intention of the legislature, there would have been no necessity of introduction of the phrase relatable to any recommendation made or decision taken by a public servant in discharge of his official function or duties in the Act, and the protection would have been given to any public servant accused of any offence under the Prevention of Corruption Act., It cannot be forgotten that in Subramanyam Swami vs. Manmohan Singh and another, 2012 (3) SCC 64, Justice A. K. Ganguli, while supplementing and concurring with the views of Justice G. S. Singhvi, observed: “Today, corruption in our country not only poses a grave danger to the concept of constitutional governance, it also threatens the very foundation of Indian democracy and the Rule of Law. The magnitude of corruption in our public life is incompatible with the concept of a socialist, secular democratic republic. It cannot be disputed that where corruption begins all rights end. Corruption devalues human rights, chokes development and undermines justice, liberty, equality, fraternity which are the core values in our preambular vision. Therefore, the duty of the Court is that any anti‑corruption law has to be interpreted and worked out in such a fashion as to strengthen the fight against corruption. That is to say, in a situation where two constructions are eminently reasonable, the Court has to accept the one that seeks to eradicate corruption over the one which seeks to perpetuate it.”, Similar views have been expressed in two judgments of the Kerala High Court viz. Shankar Bhatt vs. State of Kerala; [2021(5) KHC 248] and T. O. Suraj vs. State of Kerala; 2021 SCC Online 2896, and in a judgment of the Delhi High Court in Devendra Kumar Singh & Others vs. CBI & Others; 2019 (1) Crimes 726., In Anil Vasantrao Deshmukh vs. State of Maharashtra, 2021 SCC Online Bombay 1192, the former Minister of State of Maharashtra preferred a petition under Article 226 of the Constitution of India and Section 482 of the Code of Criminal Procedure for quashing the FIR registered by the CBI and the consequent proceedings initiated against him on the ground of protection under Section 17A of the Prevention of Corruption Act, 1988., The Bench, noting that the history of prevention of corruption laws reflected a constant tension between the two objectives of eradication of corruption on one hand and protection of innocent public servants on the other, held that in view of the nature and gravity of the allegation, which could not have been said to be in discharge of official duty, the protection of Section 17A of the Act was not available., It was also observed that the power to quash the FIR is required to be exercised sparingly and in exceptional cases. Such powers are not to be exercised to stifle a legitimate prosecution., It is in this context that the letter written by the Principal Secretary to the Honorable Chancellor to the Chief Secretary, which has been referred to in one of the petitions, appears to be unnecessary. This Court leaves it at that; for any discussion on the justification of the letter would necessarily require the viewpoint of the sender of the letter to be scrutinized, which, in the opinion of this Court, may be unnecessary at this stage., Mr. Jitendra Singh, learned senior advocate, has strongly relied on the judgment of the Supreme Court of India in Yashwant Sinha & Others vs. Central Bureau of Investigation & Its Director & Anr.; 2020 SCC 338, to contend that the interdict in Section 17A of the Act is mandatory., In that case, a review was sought of a judgment of the Supreme Court in Manohar Lal Sharma vs. Narendra Damodar Das Modi & Others; (2019) 3 SCC 25, in which the decision of the Central Government of procurement of 36 Rafale fighter jets for the Indian Air Force was questioned and a request was made for a direction for registration of an FIR under the relevant provisions of the Indian Penal Code and a court‑monitored investigation as illegality and non‑transparency in the procurement process was alleged. The petitioners had also sought investigation into the reasons for cancellation of an earlier deal, alteration in the pricing, and selection of a novice company, Reliance Defence, as the offset partner to the exclusion of HAL, a known company., Sri Yashwant Sinha, Sri Arun Shourie and Sri Prashant Bhushan had also joined hands with the other petitioners, who were aggrieved by the non‑registration of an FIR by the CBI, pursuant to a complaint made by them, disclosing a prima facie offence of commission of a cognizable offence under the Prevention of Corruption Act, 1988., Keeping in mind the necessity of upgrading the defence of the nation, the Bench proceeded to set the parameters and contours of judicial scrutiny of government decisions in matters of defence, which according to the Bench was narrower than the jurisprudence of judicial scrutiny of award of tenders and contracts. Referring to its earlier decisions in Jagdish Mandal vs. State of Orissa; (2007) 14 SCC 517; Tata Cellular vs. Union of India; (1994) 6 SCC 651; Siemens Public Communication Networks Pvt. Ltd. and another vs. Union of India & Others; (2008) 16 SCC 215; Reliance Airport Developers (P) Ltd. vs. Airports Authority of India & Others; (2006) 10 SCC 1, the Supreme Court held that the extent of permissible judicial review is not the same for every procurement/tender etc., and a different, narrower test is to be applied for any procurement for national security., The Supreme Court thus concluded that the controversy raised regarding decision‑making process, difference in pricing and the choice of the aircraft was not required to be gone into as it would neither be appropriate nor be within the experience of the Court to step into that arena. The perceptions of individuals cannot be the basis of a fishing and roving enquiry, especially in such matters. However, such views were primarily from the standpoint of exercise of jurisdiction under Article 32 of the Constitution of India., While rejecting the review of such judgment, the Honorable Justice K. M. Joseph, in Yashwant Sinha (supra), while concurring with Justice Sanjay Kaul, observed that in view of the Constitution Bench judgments in Lalita Kumari vs. State of U.P.; 2014 SCC 1 and P. Serajuddin vs. State of Madras; 1970 SCC 595, the writ petitioners were not justified in seeking relief of registration of an FIR and investigation against the government servants without any preliminary enquiry in the offence of corruption. In that context, Justice Joseph observed that in view of the insertion of a new section namely Section 17A in the Prevention of Corruption Act in the year 2018, which has not yet been challenged, the appropriate procedure for the writ petitioners would be to file a complaint in accordance with law but subject to the respondent obtaining prior approval and sanction under Section 17A of the Prevention of Corruption Act., Such an observation in Yashwant Sinha (supra) cannot be read as an omnibus protective cover to any public servant accused of committing a criminal act under the garb of performing official duty. Moreover, the Apex Court, in that instance, had not opined that the protection under Section 17A of the Act was an omnibus protection, without following the test of the alleged offence being in the nature of recommendation or the decision taken being in discharge of official duty. Thus, the observation is only a passing reference in the nature of a sidewind, which does not sweep away the established parameters under the Act, which has been explained by the Apex Court for claiming protection under Section 17A of the Act., If seen in this background, the act of the petitioner does not at all appear to be in discharge of his official duty or in connection with any recommendation made, entitling protection under Section 17A of the Act., There could be no parallel with the facts in Manohar and Yashwant Sinha (supra) to the acts alleged against the petitioner. In the former, there was a policy decision and consequent recommendation in furtherance of national security, whereas in the latter, an attempt has been made by the petitioner to enrich himself illegally., There cannot be two opinions regarding the official duties of a Vice Chancellor who has to take all policy decisions with respect to running of the University and ensuring that timely examination is held and the sessions are completed within the timeline. Nonetheless, making purchases worth several crores from out‑station companies; blatantly violating the rules in that regard and ignoring the objection of the concerned officials of the finance section and procuring e‑books without assessing the need for the same and against the advice of the departmental heads of subjects and pressurising junior officials of the University to sign the vouchers and the bills and ensure payment to the companies through the account of an unknown and untraceable person, is no discharge of official duty., The petitioner, in his capacity as Vice Chancellor, has not recommended that the rules of procedure be put on hold because of some supervening circumstance or urgency of the situation, but has stealthily procured items at high cost from private firms against specific advice., The petitioner was made aware that such procedure in financial matters cannot be ignored but, despite that, he proceeded with such purchases from unknown firms and the payment was made in the account of a person who is untraceable till today. This, even at the risk of repetition, cannot be part of official duty or relatable to any recommendation made with respect to any policy decision., A very disquieting set of facts have been brought to the notice of this Court., On the very next day of the registration of the FIR on 16 November 2021 and of simultaneous raids at three locations of the petitioner—his office at the University, his official residence at Bodh Gaya and his native house at Gorakhpur (U.P.)—in which a huge amount of cash and other incriminating materials were recovered, the petitioner, in his capacity as Vice Chancellor, issued a letter on 18 November 2021 addressed to the Pro‑Vice Chancellor, the Registrar, the Financial Adviser, the Finance Officer and the Controller of Examination, Magadh University, directing them not to transfer or hand over any official files or documents of the University to the agency without the written request of the agency and without prior executive order of the Vice Chancellor or the permission of the Honorable Chancellor., The Controller of Examination, Mr Bhrigunath, alleged that he was pressurized and compelled by the petitioner and his associates not to disclose any information to the Special Vigilance Unit or else he would be removed from his post. Similarly, other officials and staff of the University were also threatened with transfer and removal in case they did not help the petitioner and his cronies to provide a cover‑up for the illegal deeds. This Court has also been informed that the son of the petitioner, who has been twice summoned under Section 160 of the Code of Criminal Procedure, has failed to appear before the investigating agency on flimsy grounds., In response to the aforesaid accusation against the petitioner, Mr Singh, learned senior advocate, submitted that the Purchase Committee of Magadh University under the chairmanship of the erstwhile Vice Chancellor, Prof. Devi Prasad Tiwary, had resolved to purchase 30 lakh answer books through the Government e‑Marketplace (GEM) for which a National Institute of Technology was floated, receiving responses from eight tenderers, and one Bindia Enterprises of Gujarat was declared the lowest bidder. Fifteen lakh answer books were supplied and the process for payment was initiated and subsequently paid. It is contended that Professor Tiwary, the erstwhile Vice Chancellor, also held the charge of Veer Kunwar Singh University where he had purchased OMR question booklets without floating tender through GEM on the plea of maintaining secrecy and preventing any leakage of question papers., The petitioner joined as Vice Chancellor of Magadh University, Gaya on 27 September 2019. During his tenure, the Controller of Examination requested the Bindia Enterprises to supply another 15 lakh answer booklets which were supplied and payments were also made at the same rate as before. Thereafter, there was a total lockdown because of the Covid‑19 pandemic. The University Grants Commission, considering the disastrous effects of the pandemic, issued guidelines for universities to conduct examinations adopting alternative and simplified modes and reducing the examination duration from three hours to two hours. The examination could have been conducted in offline or online mode observing social distancing. Pursuant to the guidelines, a meeting of the Academic Calendar Committee was held where it was resolved to conduct OMR‑based examination with multiple‑choice questions, compatible with the UGC recommendation. The decision of the Committee had the approval of the Honorable Chancellor., It has thus been contended that printing of question papers is required to be done in utmost confidence and secrecy. For maintaining such secrecy, none of the universities in Bihar have ever obtained question papers through GEM or open tender., The allegation of choosing a fly‑by‑night firm is vehemently denied by the petitioner. He submits that quotations were invited against which M/s XLICT Software Pvt. Ltd. and Purva Enterprises offered their tenders, who agreed to supply the OMR‑based question papers urgently., With respect to the recovery of cash and documents of title from the native house of the petitioner, it has been urged that it belongs to a trust named Pyari Devi Memorial Welfare Trust, which is a registered trust. Under the trust, a school affiliated to the CBSE is also being run. A request has been made before the learned Special Judge, Vigilance, for release of the cash and documents which are said to be the proceeds of crime/tainted property, which is pending adjudication., The learned counsel for the Special Vigilance Unit, however, has taken this Court to various entries in the investigation papers, which may even bring the case under the first proviso to Section 17A which forbids any such approval or sanction as contemplated in the first part of Section 17A as the offences prima facie might require the arrest of the accused.
id_131	2	WJC No.240 of 2022 dated 24-05-2022 petitioner for attempting to accept undue advantage for himself while committing such acts during the tenure of his service., Those facts pointed out by the Special Vigilance Unit are not being referred to and discussed in the order as any deliberation on such materials might prejudice the case of the petitioner in future. Even otherwise, at the stage of grant of bail, the Patna High Court is not required to enter into any detailed analysis of the evidence of the case. Such an exercise is only to be taken at the stage of trial., However, from the attendant facts, it clearly emerges that the petitioner has shown scant regard in the Standards of Public Life as listed by Lord Nolan of England and acknowledged by the Supreme Court of India in Vineet Narayan (supra) in all its aspects, viz. selflessness, integrity, honesty and openness., Now, to the issue of anticipatory bail to the petitioner:, By a series of decisions of the Supreme Court of India and of the Patna High Court and all the High Courts, the principles to be followed while granting bail have been explained., In Prashant Kumar Sarkar Vs. Ashish Chaterjee; 2010 (14) SCC, the factors which are to be borne in mind while considering an application for bail have been listed as: whether there is any prima facie or reasonable ground to believe that the accused has committed the offence, nature and gravity of accusation, severity of punishment in the event of conviction, dangers of the accused absconding or fleeing if released on bail, likelihood of the offence being repeated, reasonable apprehension of the witnesses being influenced and danger of justice being thwarted in case of grant of bail., In P. Chidambaram Vs. Directorate of Enforcement; (2020) 13 SCC 791 it has been held that basic jurisprudence relating to bail remains the same in as much as the grant of bail is the rule and refusal an exception so as to ensure that the accused has opportunity of securing a fair trial., However, while considering the same, the gravity of the offence is an aspect which is required to be kept in mind by the Patna High Court., Gravity, for the said purpose, will have to be gathered from the facts and circumstances arising in each case. Keeping in view the consequence that might befall society in cases of financial irregularities, it has been held that even economic offences would fall under the category of grave offences and in such circumstances, while considering the application for bail in such matters, the courts are required to deal with the same, being sensitive to the nature of allegation made against the accused., Regard being had to the overt act of the petitioner in causing huge financial losses to the state exchequer, the possibility of the petitioner tampering with the witnesses and the evidence and the magnitude of dishonesty by a person holding an office as high as that of a Vice Chancellor of the University which is considered to be a temple of learning, the Patna High Court is not persuaded to admit the petitioner to anticipatory bail., To tie the strings together, the accusation against the petitioner of committing ex facie criminal act of dishonestly causing losses to the state revenue by blatantly flouting the financial regulation in running the University; of making attempts at tampering with the evidence and influencing the witnesses and not cooperating with the investigation or preliminary enquiry, the petitioner does not deserve the privilege of anticipatory bail; more so, when he professes to be a man of learning with immense experience in different fields especially in military and defence strategy., Thus, the Patna High Court finds that the prima facie offences alleged against the petitioner do not come within the protective cover of Section 17(A) of the Prevention of Corruption Act, 1988, requiring prior sanction for lodging the First Information Report and continuing with the investigation as such acts do not come within the category of recommendation made or act done in exercise of official duty or function., For the aforenoted reasons, the prayer made on behalf of the petitioner in Criminal WJC No. 240 of 2022 for quashing the subject First Information Report as being in teeth of Section 17(A) of the Prevention of Corruption Act, 1988, is rejected., For the reason of the gravity of offence committed by the petitioner while holding the high office of Vice Chancellor, his making attempts at influencing the witnesses and tampering with the evidence and not cooperating with the investigation, the State Vigilance Unit has made out a case for custodial interrogation of the petitioner., The prayer for anticipatory bail of the petitioner in Criminal Miscellaneous No. 8186 of 2022 is thus rejected with the observation that in case the petitioner surrenders before the special court and prays for bail, his application shall be considered on its own merits without being prejudiced by any observation or comment made in the order which is only for the purposes of deciding the quashing and the anticipatory bail applications, and an order shall be passed with reasons., Both the petitions are thus rejected.
id_1310	0	Date of decision: 29th March 2023 Through: Ms. Nitya Ramakrishnan, Senior Advocate with Mr. Rahul Kripalani, Ms. Rea Bhalla and Ms. Supraja V, Advocates versus Mr. Alok Kumar Rai, Advocate. By way of the present petition under section 482 of the Code of Criminal Procedure, 1973 read with Article 227 of the Constitution of India, the petitioners seek quashing of summoning order dated 07.01.2017 made by the learned Metropolitan Magistrate, Patiala House Courts, New Delhi, whereby the petitioners/accused have been summonsed to face trial in C.C. No. 32203-16 filed by the respondent/complainant alleging offences under sections 499, 500, 501 and 502 of the Indian Penal Code, 1860., The petitioners impugn the summoning order on various grounds, as detailed in this judgement, the principal contention being that there was no material on record on the basis of which the learned Magistrate could have summonsed the petitioners., The Delhi High Court has heard Ms. Nitya Ramakrishnan, learned senior counsel appearing on behalf of the petitioners; and Mr. Alok Kumar Rai, learned counsel appearing for the respondent. The Delhi High Court has also heard Professor Amita Singh, the respondent in person., Briefly, the factual matrix relevant for purposes of the present petition is the following: The criminal complaint alleges offences punishable under sections 499, 500, 501 and 502 IPC arising from a publication carried on the online news portal The Wire on 26.04.2016 (subject publication). The criminal complaint as filed arrays eleven persons as accused. Accused numbers 1 and 2 (A1 and A2) are respectively the Editor and the Deputy Editor of The Wire; and Accused numbers 3 to 11 are other persons, including a politician, two assistant professors, two other major publications, two students, an SHO and a website., The complainant, who is a Professor at Jawaharlal Nehru University, New Delhi, had prayed for the court to take cognizance of offences punishable under sections 499, 500, 501 and 502 IPC against all accused persons, and for issuance of a direction to the SHO, P.S.: Vasant Kunj, North to investigate the matter and take action in accordance with law., The learned Magistrate recorded the depositions of five witnesses on behalf of the complainant, namely: CW-1 the complainant herself; CW-2 Professor Bupinder Zutshi; CW-3 Dr Rahila Sikandar; CW-4 Nazia Khan; and CW-5 Manu Singh., By order dated 07.01.2017 the learned Magistrate issued summons only to A1 and A2 and to none of the other accused persons. It is the said two accused persons who have filed the present petition., This is a complaint made by the complainant Amita Singh, who claims to be a Professor and the Chairperson of Centre for Study of Law and Governance (JNU), under sections 500, 501 and 502 IPC against certain accused persons for imputing that she prepared a dossier allegedly depicting that Jawaharlal Nehru University is a den of organised sex racket. Complainant claims that she did not prepare any such dossier. It is claimed by the complainant that the said imputation was firstly made in an e‑magazine The Wire and thereafter the other accused persons, arrayed in the list of parties, circulated, re‑circulated, tweeted, retweeted the above imputation published by the magazine, with their comments which were also defamatory in nature. She further claims that she is a victim of a hate campaign which has begun after the publication of false information by the e‑magazine The Wire. The complainant has placed on record computer printouts of the said publication in order to substantiate her allegations. It is pertinent to mention that all the above mentioned documents are actually copies of electronic records. In order for the said documents to be read in evidence, the complainant is supposed to prove a certificate under section 65-B of the Evidence Act on the judicial file. However, the complainant has failed to do so for reasons best known to her. Only an affidavit, sworn before an oath commissioner, has been placed on record, but that too has not been tendered in evidence. Consequently the printouts of all the defamatory material, as relied by the complainant, could not be read in evidence at this stage. Now the Delhi High Court is left only with oral accounts as deposed by the complainant and her witnesses. She claims that the accused numbers 1 and 2 have defamed her by wrongly imputing the preparation of the aforesaid dossier. It is further claimed by her that the other accused have made defamatory comments against her on the basis of said imputation. She further claims that she did not prepare any such dossier. All the other witnesses have deposed that they have read the defamatory publication in the e‑magazine The Wire and have further deposed categorically that the complainant has been defamed on account of the publication of the said report. In the considered opinion of this Court, there are sufficient materials on record to summon the editor of accused number 1 The Wire as well as the accused number 2 who authored the said defamatory article. The other witnesses have not made any statement supporting the assertions of the complainant regarding the role of other accused persons in defaming her. Except for oral testimony of complainant Amita Singh, there is nothing on record to assume culpability of the remaining accused persons at this stage. Accordingly, this Court is not inclined to summon the remaining accused persons., It is accordingly the admitted position, as narrated in the summoning order and as also evident from the record, that at the stage summons were issued by order dated 07.01.2017, no certificate under section 65-B of the Indian Evidence Act, 1872 in support of a print‑out of the online publication had been filed by the respondent. This online publication is the only matter which has been imputed to the present petitioners. Absent the section 65‑B certificate, the print‑out of the online publication could not be read in evidence, as correctly observed by the learned Magistrate., The aforesaid position is unequivocally settled by the verdict of the Supreme Court in Arjun Panditrao Khotkar versus Kailash Kushanrao Gorantyal and others, where the Supreme Court holds: 61. We may reiterate, therefore, that the certificate required under Section 65‑B(4) is a condition precedent to the admissibility of evidence by way of electronic record, as correctly held in Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473 and incorrectly clarified in Shafhi Mohammad v. State of Himachal Pradesh, (2018) 2 SCC 801 etc. Oral evidence in place of such certificate cannot possibly suffice as Section 65‑B(4) is a mandatory requirement of the law. Indeed, the principle in Taylor v. Taylor, (1875) LR 1 Ch D 426, which has been followed in a number of judgments of this Court, can also be applied. Section 65‑B(4) of the Evidence Act clearly states that secondary evidence is admissible only if led in the manner stated and not otherwise. To hold otherwise would render Section 65‑B(4) otiose., So, what was before the learned Magistrate at the stage of passing the summoning order was only the portion of the subject publication which was extracted in the criminal complaint which contains the allegations against the petitioners. The relevant extract from the complaint reads as follows: That the Accused Persons have started hate campaign against the Complainant to malign the reputation of the Complainant. Accused No.1 & 2 The Wire, its Editor, Siddharth Bhatia, has not verified the authenticity of the dossier and has used the same for the monetary benefits of its magazine and thereby damaging, defaming and maligning the reputation of the Complainant. Accused No.2 Ajoy Ashirwad Mahaprastha has wrongly used the name of the Complainant in the same dossier, thereafter shared, distributed, uploaded the same on the public domain/social websites, thereby making it available to millions of users of the Internet and the Accused Persons have shared, posted, commented defamatory words, phrases, statements, remarks against the Complainant. The extract of the dossier has been reproduced below: Dossier calls JNU Den of Organised Sex Racket Students, Professors Allege Hate Campaign By Ajoy Ashirwad., A plain reading of the aforesaid extract shows that, in and of itself, there is nothing in the said extract that could be taken to be defamatory of the respondent. As explained above, the aforesaid caption only says that the dossier called JNU a den of organised sex racket, but nothing in the extract says anything against the respondent herself, much less anything that could be taken to be defamatory of the respondent., The aforesaid extracted portion is all that was before the learned Magistrate by way of the contents of the subject publication. All else was only the allegations, comments, inferences and grievances of the respondent herself. In fact, the learned Magistrate himself correctly observes in the summoning order that he is left only with oral accounts as deposed by the complainant and her witnesses and that he has therefore proceeded solely on the basis of the oral testimony of some of the complainant's witnesses in relation to the written matter. The written matter, viz. the subject publication, was not before the learned Magistrate in any admissible form., The learned Magistrate correctly appreciates the position of law in this behalf but then erroneously proceeds to pass the summoning order on the basis of oral evidence in substitution of the electronic record., This the learned Magistrate could not have done since no certificate under section 65‑B of the Evidence Act had been filed in support of the subject publication, which was an online publication; which, as observed above, was the only subject‑matter of the criminal complaint against the present petitioners., It is also noticed that, even assuming that the subject publication could have been read in evidence, all that was stated in the article was that the respondent had led a team of persons who had compiled a dossier which purported to expose certain wrongdoing at JNU. The subject publication did not say that the respondent was involved in any wrongdoing; nor did it speak of the respondent in any derogatory, derisive or denigrating terms., As the summoning order itself records, it is founded only upon the depositions made by CW‑1 to CW‑5 at the pre‑summoning stage. For one, the depositions of the complainant's witnesses were at best only their conclusions and inferences in relation to whether the subject publication was defamatory of the respondent or not. A reading of the criminal complaint further reveals that the respondent has alleged that other accused persons have made derogatory references to her, except she blames all of that on the subject publication. However, the learned Magistrate did not find any material to summon the other accused persons, which would a fortiori mean that the learned Magistrate was of the opinion that ex‑facie the allegations that the other accused persons had made derogatory references to the respondent were baseless. If that be so, then to say that the subject publication carried by the petitioners was the cause for such derogatory references loses any meaning., On point of fact, some of the witnesses who deposed in the respondent's favour do not even say that they had read the subject publication., It may also be observed that essentially the learned Magistrate proceeds on the basis of the oral testimony of the complainant's witnesses who say that they find the matter defamatory. Since the subject publication is not on record, it is only the opinion of those witnesses about the publication that was read by the learned Magistrate. In any case, whether or not the subject publication was defamatory in law or not was a matter for judicial determination and an opinion that must be formed by the court. The mere interpretation, inferences and conclusions drawn by the complainant's witnesses on that score cannot have been the basis for summoning the petitioners., At this point, a closer reading of the provision defining the offence of defamation under section 499 IPC is necessary. The provision recites as follows: 499. Defamation. Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person. Explanation 1... Explanation 4... No imputation is said to harm a person's reputation unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful., The Supreme Court has also held that before issuing summons in a criminal complaint alleging defamation, a Magistrate must act with great circumspection, and be careful in assessing whether an offence is disclosed. This is what the Supreme Court has said in Subramanian Swamy versus Union of India: 207. Another aspect required to be addressed pertains to issue of summons. Section 199 CrPC envisages filing of a complaint in court. In case of criminal defamation neither can any FIR be filed nor can any direction be issued under Section 156(3) CrPC. The offence has its own gravity and hence, the responsibility of the Magistrate is more. In a way, it is immense at the time of issue of process. Issue of process, as has been held in Rajindra Nath Mahato v. T. Ganguly, is a matter of judicial determination and before issuing a process, the Magistrate has to examine the complainant. In Punjab National Bank v. Surendra Prasad Sinha, it has been held that judicial process should not be an instrument of oppression or needless harassment. The Court, though in a different context, has observed that there lies responsibility and duty on the Magistracy to find whether the accused concerned should be legally responsible for the offence charged for. Only on satisfying that the law casts liability or creates offence against the juristic person or the persons impleaded, then only process would be issued. At that stage the court would be circumspect and judicious in exercising discretion and should take all the relevant facts and circumstances into consideration before issuing process lest it would be an instrument in the hands of the private complaint as vendetta to harass the persons needlessly. Vindication of majesty of justice and maintenance of law and order in the society are the prime objects of criminal justice but it would not be the means to wreak personal vengeance. In Pepsi Foods Ltd. v. Special Judicial Magistrate, a two‑Judge Bench has held that summoning of an accused in a criminal case is a serious matter and criminal law cannot be set into motion as a matter of course., Guiding the High Courts on the same subject, in Mehmood Ul Rehman versus Khazir Mohammad Tunda the Supreme Court has further held: 20. The extensive reference to the case law would clearly show that cognizance of an offence on complaint is taken for the purpose of issuing process to the accused. Since it is a process of taking judicial notice of certain facts which constitute an offence, there has to be application of mind as to whether the allegations in the complaint, when considered along with the statements recorded or the inquiry conducted thereon, would constitute violation of law so as to call a person to appear before the criminal court. It is not a mechanical process or matter of course. As held by this Court in Pepsi Foods Ltd. to set in motion the process of criminal law against a person is a serious matter., Under Section 190(1)(b) CrPC, the Magistrate has the advantage of a police report and under Section 190(1)(c) CrPC, he has the information or knowledge of commission of an offence. But under Section 190(1)(a) CrPC, he has only a complaint before him. The Code hence specifies that a complaint of facts which constitute such offence. Therefore, if the complaint, on the face of it, does not disclose the commission of any offence, the Magistrate shall not take cognizance under Section 190(1)(a) CrPC. The complaint is simply to be rejected., The steps taken by the Magistrate under Section 190(1)(a) CrPC followed by Section 204 CrPC should reflect that the Magistrate has applied his mind to the facts and the statements and he is satisfied that there is ground for proceeding further in the matter by asking the person against whom the violation of law is alleged to appear before the court. The satisfaction on the ground for proceeding would mean that the facts alleged in the complaint would constitute an offence, and when considered along with the statements recorded, would, prima facie, make the accused answerable before the court. No doubt, no formal order or a speaking order is required to be passed at that stage. The Code of Criminal Procedure requires a speaking order to be passed under Section 203 CrPC when the complaint is dismissed and that too the reasons need to be stated only briefly. In other words, the Magistrate is not to act as a post office in taking cognizance of each and every complaint filed before him and issue process as a matter of course. There must be sufficient indication in the order passed by the Magistrate that he is satisfied that the allegations in the complaint constitute an offence and when considered along with the statements recorded and the result of inquiry or report of investigation under Section 202 CrPC, if any, the accused is answerable before the criminal court, there is ground for proceeding against the accused under Section 204 CrPC, by issuing process for appearance. The application of mind is best demonstrated by disclosure of mind on the satisfaction. If there is no such indication in a case where the Magistrate proceeds under Sections 190/204 CrPC, the High Court under Section 482 CrPC is bound to invoke its inherent power in order to prevent abuse of the power of the criminal court. To be called to appear before the criminal court as an accused is a serious matter affecting one's dignity, self‑respect and image in society. Hence, the process of criminal court shall not be made a weapon of harassment., Having gone through the order passed by the Magistrate, we are satisfied that there is no indication on the application of mind by the learned Magistrate in taking cognizance and issuing process to the appellants. The contention that the application of mind has to be inferred cannot be appreciated. The further contention that without application of mind, the process will not be issued cannot also be appreciated. Though no formal or speaking or reasoned orders are required at the stage of Sections 190/204 CrPC, there must be sufficient indication on the application of mind by the Magistrate to the facts constituting commission of an offence and the statements recorded under Section 200 CrPC so as to proceed against the offender. No doubt, the Delhi High Court is right in holding that the veracity of the allegations is a question of evidence. The question is not about veracity of the allegations, but whether the respondents are answerable at all before the criminal court. There is no indication in that regard in the order passed by the learned Magistrate., On a plain, objective and careful reading of the extract of the subject publication as contained in the criminal complaint, it appears that the controversial dossier exposes wrongful activities that it says are going on within the university campus; and that the respondent was leading a team of persons who compiled the dossier. At the risk of repetition, the subject publication nowhere says that the respondent is involved in the wrongful activities; nor does it make any other derogatory reference to her in connection therewith. This court is unable to discern therefore, as to how the subject publication can be said to have defamed the respondent., The discussion and reasoning in the summoning order shows that what the respondent is aggrieved by is the comments posted by other accused persons against her, criticising her for what is contained in the dossier, claiming that what was contained in it was false., It would appear that the grievance of the respondent is not that what is stated in the dossier is false, since she nowhere says so. The respondent's grievance is that she did not lead the team of persons who compiled the dossier. Her grievance is that the comments made by the other accused persons against her are defamatory. However, the learned Magistrate has considered it fit to summon only the petitioners and has chosen not to summon any of the other persons arrayed in the complaint., In view of the foregoing discussion, in the opinion of this Court, firstly, the subject publication itself was not before the learned Magistrate since in the absence of requisite certificate under section 65‑B of the Evidence Act, the print‑out of the subject publication filed could not be read in evidence. The learned Magistrate was cognisant of this and has specifically so observed in the summoning order. Secondly, on a plain reading of the extract of the subject publication which is all that was contained in the complaint, there appears to be nothing defamatory in it, as understood in law, since all it says is that the dossier calls out certain wrongdoing in the university. Since, on point of law, there can be no oral evidence in substitution of a certificate under section 65‑B of the Evidence Act, there was no material before the learned Magistrate based on which the summoning order could have been passed., As a sequitur to the above, the summoning order dated 07.01.2017 made by the learned Metropolitan Magistrate in criminal complaint bearing C.C. No. 32203/2016 cannot be sustained in law and is accordingly quashed and set aside., The present petition is disposed of., Pending applications, if any, also stand disposed of.
id_1312	0	Date of decision: 16th December, 2020. Through: Ms. Vrinda Grover, Senior Advocate with Mr. Ankur Sood, Advocates, versus Mr. Rajesh Kr. Gautam, Mr. Anant Gautam and Mr. Nipun Sharma, Advocates for Respondents 1, 2 and 4, and Mr. Varun Mishra, Advocate for Respondent 3. Prathiba M. Singh, Judge (Oral)., This hearing has been done by video conferencing., The Petitioner has filed the instant petition challenging the recommendations of the Internal Complaints Committee (hereinafter as ICC), as given in the report dated 15th March 2017, as well as further action which has been taken by the Punjab National Bank (hereinafter as Bank) on the basis of ICC's report., The brief background is that a complaint under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (hereinafter as Act) was filed by the Petitioner against Respondent No.3, who was working as the General Manager of Respondent No.1 Bank, in Mumbai. The said complaint was referred to the Internal Complaints Committee, which was constituted by the Bank, consisting of four members. The constituted ICC, upon analysing the complaint, concluded that the relationship between the Petitioner and Respondent No.3 was based on personal grounds with mutual consent, and that the allegations of sexual, emotional and mental harassment were not substantiated. Thus, the complaint against Respondent No.3 was rejected. However, the ICC observed that the behaviour of the parties had been inappropriate and unbecoming of Officers/Employees of the Bank, and accordingly recommended the Competent Authority to take suitable action against the Petitioner and Respondent No.3, as deemed fit., This report thereafter resulted in a charge-sheet being issued on 15th April 2017 against the Petitioner, under Regulation 6 of the Punjab National Bank Officer Employees (Discipline & Appeal) Regulations, 1977. The foundation of the charge-sheet was the ICC's report and certain other facts which the Bank had ascertained from various communications between Respondent No.3 and the Petitioner. The charge-sheet was served upon the Petitioner, and at that stage the Petitioner preferred the present writ petition., By order dated 19th April 2017, the learned Single Judge, while entertaining the present petition, stayed the ICC's recommendation and the consequent charge-sheet. The relevant portion of the order reads: 'Till the next date of hearing, operation of report of the Internal Complaints Committee dated 15.03.2017, insofar as it recommends an action to be taken against the petitioner and the consequent charge sheet issued to the petitioner, shall remain stayed.', Thereafter, pleadings were being completed and the Petitioner became eligible for promotion. On 1st October 2019, the Petitioner submitted that her promotion was being held up in view of the pendency of the present petition. The learned counsel for the Petitioner submitted that her promotion was being held up. The learned counsel for Punjab National Bank was directed to take instructions as to whether the Petitioner is entitled to promotion, keeping aside the recommendation of the Internal Complaints Committee and the charge sheet, as they are subject matter of the present petition and an interim order had already been passed in favour of the Petitioner. Instructions were to be sought before the next date. The matter was listed on 3rd December 2019., By order dated 3rd December 2019, the Bank was directed to independently consider the Petitioner’s candidature for promotion, but the decision was to be kept in a sealed cover. Due to the lockdown, the matter could not be heard thereafter., In the meantime, the Bank placed on record, in a sealed cover, the relative performance of the Petitioner and her prospects for promotion, independent of the charge-sheet. The affidavit in compliance with the orders passed by the Supreme Court of India has been placed on record by the Bank. Learned counsel for the Bank submitted that the performance of the Petitioner was evaluated in the merit list and she had become eligible for consideration for promotion. It was further submitted that although the ICC concluded that the Petitioner was in a consensual relationship, the Bank’s promotion policy, specifically Paragraph 20(1) and Paragraph 20(2.5) of the Promotion policy, requires that any disciplinary proceedings pending must keep the promotion in a sealed cover. Accordingly, the Petitioner’s result has been kept in a sealed cover., Ms. Vrinda Grover, learned counsel appearing for the Petitioner, submitted that upon the sexual harassment complaint being rejected, the ICC could merely close the enquiry as no case was made out against Respondent No.3. However, the recommendation for taking action due to alleged unbecoming conduct is contrary to Section 13(2) of the Act. She further submitted that for personal reasons the Petitioner does not wish to press any challenge to the ICC’s conclusion, provided the recommendation made by the ICC is set aside by this Court., The first question that arises is whether the ICC could have, in the first place, made a recommendation directing the competent authority to take action. The ICC’s report recommends that both the complainant Ms. Bibha Pandey and the respondent Shri Ashwini Kumar Vats entered into a personal relationship with mutual consent, that the allegations of sexual, mental and emotional harassment are not substantiated, and that no case under the Act is made out. The Committee further observed that both parties behaved in a manner unbecoming of an Officer employee of the Bank, indulging in inappropriate acts, not maintaining good conduct and discipline, and that the competent authority may take suitable action against them as deemed fit., The conclusions of the ICC are in two parts. In the first part, the ICC concludes that the allegations are not substantiated and the complaint is not made out. In the second part, the ICC comments on the conduct of the Petitioner and the Respondent and recommends that the Bank may take suitable action. Section 13 of the Act contemplates various situations. Section 13(2) provides that where the Internal Committee or Local Committee concludes that the allegation against the respondent has not been proved, it shall recommend to the employer and the District Officer that no action is required. Section 13(3) provides that where the allegation is proved, it shall recommend to the employer or District Officer to take action for sexual harassment as misconduct in accordance with service rules, or to deduct from the salary of the respondent an amount to be paid to the aggrieved woman, with further provisions for recovery., As per the above provisions, if the allegations are not proved, the ICC can only recommend that no action be taken. However, in the present case the ICC has gone beyond its statutory mandate by observing that both parties indulged in inappropriate conduct and recommending that the competent authority take suitable action. Such a recommendation is clearly beyond the jurisdiction of the ICC., Complaints of sexual harassment are initially filed with enormous reluctance. The power of the ICC to hold the enquiry and give a report must be within the scheme of the statute. If a case of sexual harassment is not made out, the ICC can only conclude that no action is required. If a case is made out, the ICC’s recommendation can only be for taking appropriate action for misconduct in accordance with the service rules as contained in Section 13(2) and 13(4) of the Act., It is not contemplated within the provisions of the Act that while holding that no action is to be taken and the complaint is rejected, the ICC can direct suitable action on the ground that the parties have indulged in inappropriate conduct. Moral policing is not the job of the Management or of the ICC. Any consensual relationship among adults is not the concern of the Management or of the ICC so long as it does not affect the working and discipline of the organisation and is not contrary to the Rules or code of conduct. The ICC cannot comment on the personal conduct of the parties; its jurisdiction is restricted to allegations of sexual harassment. Under these circumstances, the Supreme Court of India has no hesitation in holding that the last paragraph of the ICC’s recommendation, which comments on the conduct of the parties and recommends action against the Petitioner and Respondent No.3 for inappropriate disciplinary conduct, is not tenable and is liable to be set aside., Further, in view of the fact that one of the factors leading to the charge-sheet dated 15th April 2017 was the recommendation of the ICC, the charge-sheet seeking disciplinary action against the Petitioner is liable to be quashed and is ordered accordingly., In view of the above position, the fact that the Petitioner has become eligible for promotion means that the Bank will accordingly offer her promotion in accordance with her seniority, performance and merit, as per the applicable service rules. The charge-sheet will no longer be an obstacle to the Petitioner’s promotion and no disciplinary enquiry will be held against the Petitioner pursuant to the charge-sheet., The affidavits filed by the Bank in a sealed cover shall be scanned and retained on record., With these observations, the present petition and all pending applications are disposed of.
id_1313	0	Jaswant Chanda Kochhar is the applicant/plaintiff and ICICI Bank Ltd. is the defendant. The plaintiff is represented by senior advocates Mr. Aspi Chinoy, Mr. Darius Khambata, Dr. Birendra Saraf, Mr. Aditya Mehta, Mr. Ali Antulay, Mr. Rahul Dwarkadas, Ms. Silpa Nair, Ms. Juhi Bahirwani and Ms. Sanaya Contractor of Veritas Legal. The defendant is represented by senior advocates Mr. Rohaan Cama, Mr. Rohan Dakshini, Mr. Vishesh Malviya and Mrs. Deepa Shetty., Both the interim applications are connected and have been heard together., Interim Application No. 1014 of 2022 was filed in Suit No. 114 of 2022 by the plaintiff, Mrs. Chanda Kochhar, against ICICI Bank Ltd. Interim Application No. 307 of 2020 was filed in Suit No. 313 of 2020 by ICICI Bank against Mrs. Kochhar. The narrow issue is whether ICICI Bank, having accepted Mrs. Kochhar's request for early retirement, could subsequently treat her services as termination for cause effective from the date of acceptance of her early retirement. Mrs. Kochhar seeks specific performance of the letter dated 4 October 2018 by which she claims ICICI Bank accepted her early retirement, and the reinstatement of her Employee Stock Options under the Employee Stock Option Scheme. ICICI Bank seeks clawback of bonuses and revocation of retirement benefits, including vested and unvested Employee Stock Options, on the premise that her services were treated as termination for cause effective from 4 October 2018., A brief background of facts is necessary., Mrs. Kochhar was employed by ICICI Bank on 17 April 1984, initially as a Trainee Officer, and was promoted from time to time. She was appointed Managing Director and Chief Executive Officer of ICICI Bank on 1 May 2009 and was thereafter reappointed for terms ending on 31 March 2019., During her employment Mrs. Kochhar signed various ICICI Bank policies, including the Code of Conduct, Framework for Dealing with Conflict of Interest, Deeds for Covenants and Clawback Agreement. She was also required to make disclosures in compliance with the Companies Act, 1956, the Companies Act, 2013, the Banking Regulation Act, 1949, the SEBI (Listing Obligation and Disclosure) Regulations, 2015, the Reserve Bank of India Master Circular on Loans and Advances and RBI Guidelines on Compensation of Whole Time Directors/Chief Executive Officers., Mrs. Kochhar was granted Employee Stock Options between April 2007 and March 2017, each grant being made under an Award Confirmation Letter read with the Employee Stock Option Scheme formulated by ICICI Bank in accordance with SEBI guidelines. Vesting was subject to a Vesting Confirmation Letter. Each grant was based on performance, continued good conduct and the representations/disclosures made by Mrs. Kochhar to the bank at the time., In July 2016 news articles alleged nepotism against Mrs. Kochhar concerning the grant of loans to companies affiliated with the Videocon Group/Mr. Venugopal Dhoot as a quid pro quo for investments by Mr. Dhoot or his affiliates in NuPower Renewables Pvt. Ltd., a company promoted by Mr. Deepak Kochhar, the husband of Mrs. Kochhar., On 26 December 2016 ICICI Bank appointed a reputed law firm to conduct an independent enquiry into the allegations appearing in those news articles., Mrs. Kochhar and her husband provided information and documents indicating that no investments were made by Mr. Dhoot and his affiliates in NRPL. Based on this information the law firm submitted a report stating that there was no merit in the allegations., In April 2018 ICICI Bank received whistleblower letters primarily alleging abuse of position by Mrs. Kochhar and business dealings between the Videocon Group and Mr. Deepak Kochhar., Mrs. Kochhar addressed a letter dated 20 April 2018 to ICICI Bank stating that she had made inquiries with her husband and ascertained that he had business dealings with Mr. Venugopal Dhoot/Videocon Group over many years. She submitted that she had disclosed her husband's directorships to the bank and that there was no information placing her in a position of conflict of interest or difficulty in performing her functions., Correspondence was exchanged between ICICI Bank and Mrs. Kochhar regarding disclosures of Mr. Deepak Kochhar's business dealings with Mr. Venugopal Dhoot/Videocon Group. Mrs. Kochhar forwarded a letter dated 30 April 2018 from her husband, disclosing those dealings, which referred to a letter dated 25 April 2018 addressed by Mrs. Kochhar to her husband., On 29 May 2018 the Board of Directors of ICICI Bank decided to conduct an enquiry into the allegations against Mrs. Kochhar in accordance with the Terms of Reference. Relevant filings were also made with the stock exchanges. The bank informed the previously appointed law firm that, in light of the new disclosures, its earlier report would no longer be valid., ICICI Bank, on 30 May 2018, vide letter intimated the Stock Exchange of its decision to conduct an enquiry into the 2018 whistleblower complaint., Mr. Justice B. N. Srikrishna (Retired Judge of the Supreme Court of India) was appointed on 6 June 2018 by the Audit Committee of ICICI Bank to conduct an independent enquiry into the allegations against Mrs. Kochhar., At a Board meeting of ICICI Bank on 18 June 2018, Mrs. Kochhar communicated her decision to go on leave until the enquiry was completed. The Board in good faith accepted her decision and made necessary disclosures to the Stock Exchange., On 3 October 2018, while the enquiry was still pending, Mrs. Kochhar addressed a letter requesting the Board of Directors of ICICI Bank to grant her early retirement., ICICI Bank, by its letter dated 4 October 2018, intimated the Board's approval and referred to benefits under the Early Retirement Scheme. An Undertaking dated 19 July 2016 signed by Mrs. Kochhar, referring to her employment contract and service conditions, was enclosed. In the last paragraph of the Undertaking Mrs. Kochhar stated that she recognized and acknowledged the Undertaking and commitments as part of her fiduciary duties to the ICICI group and that any breach would allow the bank to seek legal remedies, including forfeiture of benefits, at its sole discretion., In the concluding paragraph of the bank's letter dated 4 October 2018, reference was made to certain Employee Stock Options not yet granted to Mrs. Kochhar and pending RBI approval. It was stated that such grant would be decided by the Board only upon conclusion of the enquiry., Between October 2018 and January 2019, pending the completion of the enquiry, Mrs. Kochhar exercised 690,000 Employee Stock Options and received other benefits in accordance with the letter dated 4 October 2018., Mrs. Kochhar participated in the enquiry conducted before Justice Srikrishna and, in December 2018, submitted oral and written submissions., Justice Srikrishna submitted the Enquiry Report on 27 January 2019 to ICICI Bank, highlighting that Mrs. Kochhar had committed gross/serious violations of the Code of Conduct for extended periods of time., The Board of Directors of ICICI Bank, after considering the findings of the Enquiry Report, unanimously resolved to treat the separation of Mrs. Kochhar from the bank as termination for cause under the bank's internal policies, schemes and Code of Conduct, with attendant consequences including revocation of all existing and future entitlements such as unpaid amounts, bonuses, increments, vested and unvested stock options and medical benefits, and to claw back all bonuses paid from April 2009 until March 2018. Disclosures to the stock exchanges and the Reserve Bank of India were made., ICICI Bank addressed an email dated 30 January 2019 to Mrs. Kochhar informing her that the early retirement benefits dated 4 October 2018 stood revoked with effect from the close of business on 30 January 2019. The vested and unvested Employee Stock Options previously allotted to her were revoked and returned to the common pool in accordance with bank policies., A letter dated 1 February 2019 from the Group Chief Human Resources Officer reiterated that Mrs. Kochhar's separation was treated as termination for cause. The bonuses paid by the bank to her during April 2009 to March 2018 were quantified at INR 7,41,36,777 and were to be clawed back., Mrs. Kochhar responded to the email of 30 January 2019 and the letter of 1 February 2019 by a letter dated 4 February 2019, contending that once the Board had accepted her early retirement in October 2018, the employer‑employee relationship ended., ICICI Bank addressed a letter dated 5 February 2019 to the Reserve Bank of India seeking approval under Section 35B(1)(b) of the Banking Regulation Act, 1949 to treat the separation of Mrs. Kochhar as termination for cause effective from 30 January 2019., On 18 February 2019 the bank replied to Mrs. Kochhar's letter of 4 February 2019 and furnished her with relevant excerpts of the Enquiry Report, stating that the excerpts were privileged and confidential and not for further circulation., On 13 March 2019 the Reserve Bank of India approved the bank's request for termination of appointment of Mrs. Kochhar under Section 35B(1)(b) of the Banking Regulation Act, 1949 and noted that the termination would be as of 4 October 2018, the last working day of Mrs. Kochhar as MD and CEO. The RBI advised the bank to follow its policies and all applicable laws while dealing with the termination., Subsequent correspondence between Mrs. Kochhar and ICICI Bank on 23 April 2019 and 2 May 2019 concerned service of the Enquiry Report to Mrs. Kochhar., Further correspondence from 16 May 2019 to 23 September 2019 saw the bank calling upon Mrs. Kochhar to repay bonuses paid during April 2009 to March 2018. Mrs. Kochhar reiterated her stand that she was seeking restoration of all benefits granted under the bank's letter dated 4 October 2018., On 20 November 2019 Mrs. Kochhar filed Writ Petition No. 33151 of 2019 against ICICI Bank and the Reserve Bank of India, declaring the communication of 4 October 2018 as valid, subsisting and binding, and the email of 30 January 2019 and the letter of 1 February 2019 as illegal, non est, void‑ab‑initio. She also sought a declaration that the RBI communication of 13 March 2019 was non‑est, illegal and void ab‑initio, and claimed consequential relief., During the pendency of the writ petition, ICICI Bank filed Suit No. 313 of 2020 against Mrs. Kochhar. The writ petition was dismissed on 5 March 2020 by a Division Bench of the Supreme Court of India on the ground that the dispute was contractual and not amenable to writ jurisdiction., In February 2020 the Enforcement Directorate filed a complaint against Mrs. Kochhar and her husband under the Prevention of Money Laundering Act. The Adjudicating Authority, PMLA, passed an order on 6 November 2020 releasing the provisional attachment of assets and held that there were no proceeds of crime nor money laundering, thereby rejecting the original complaint., Mrs. Kochhar filed Special Leave Petition (C) No. 13651 of 2020 challenging the order of 5 March 2020. The SLP was dismissed on 1 December 2020. The Supreme Court held that it would not interfere because the only controversy was whether, after an earlier accepted resignation, a later termination could take place, which falls within the realm of the contractual relationship between Mrs. Kochhar and the private bank., In June 2020 the present Suit No. 114 of 2020 was filed and Interim Application No. 1014 of 2022 was taken out., Senior Counsel Mr. Aspi Chinoy submitted that the plaintiff's offer of early retirement dated 3 October 2018 and ICICI Bank's acceptance by its letter dated 4 October 2018 resulted in a contract for retirement on the terms mentioned therein, thereby ceasing the employer‑employee relationship. He relied upon Supreme Court decisions in National Textile Corporation (MP) Ltd. v. M. R. Jadhav and HEC Voluntary Retired Employees Welfare Society & Anr. v. Heavy Engineering Corporation., Mr. Chinoy argued that once the retirement agreement of 4 October 2018 was effective, ICICI Bank could not thereafter take any disciplinary action or purport in January 2019 to terminate Mrs. Kochhar's employment for cause. He relied upon the Supreme Court decision in C. L. Verma v. State of Madhya Pradesh., He further submitted that the preliminary enquiry conducted by Justice Srikrishna could not continue after the retirement agreement, because the bank could not initiate disciplinary proceedings post‑retirement. The only reason for continuing the enquiry was that the agreement provided that two benefits – Employee Stock Options granted in 2018 (1,435,500 options) and bonus amounts for the last two years – would be determined by the Board based on the outcome of the enquiry. The enquiry was therefore continued solely for that limited purpose, and Mrs. Kochhar participated in a one‑on‑one discussion with the head of enquiry in December 2018., Mr. Chinoy submitted that since the enquiry report was restricted to those two specific benefits, it could not affect any other rights or benefits of Mrs. Kochhar under the retirement agreement. This was confirmed by the bank's notice to the stock exchanges dated 4 October 2018, which stated that the Board accepted the early retirement request and that the enquiry would remain unaffected, with certain benefits subject to its outcome., He argued that ICICI Bank had not rescinded the retirement agreement on grounds of undue influence, misrepresentation or fraud under Sections 17 to 19 of the Indian Contract Act, as there were no such pleadings in its affidavit. The revocation of early retirement benefits was only a consequence of the purported termination for cause, as made clear by the bank's letter of 30 January 2019., Mr. Chinoy contended that ICICI Bank has been unable to show any legal basis for purporting on 30 January 2019 to treat Mrs. Kochhar's retirement as termination for cause, notwithstanding that she had ceased to be an employee under the retirement agreement of 4 October 2018., He further submitted that the bank's reliance on the preliminary enquiry report to justify its decision to treat the retirement as termination for cause, and its reliance on the report in its affidavits, was misplaced and unwarranted. The preliminary enquiry report could not have been used to prejudice any right or entitlement of Mrs. Kochhar., Mr. Chinoy explained that the enquiry was a fact‑finding exercise under the bank's Code of Conduct, not an adjudicatory or disciplinary procedure. Disciplinary action would commence only after the report was received by the Human Resources Management Group, after which employees would be required to make written submissions, and could appeal within seven working days to an Appellate Authority, which would dispose of the appeal by a detailed speaking order., He submitted that by accepting Mrs. Kochhar's offer for early retirement while fully aware of the allegations, the bank gave up its right to use the enquiry report to initiate disciplinary or domestic enquiry proceedings. The bank itself confirmed that the enquiry report was privileged, confidential and protected by attorney‑client privilege, and that the report expressly stated that neither the head of enquiry nor the firm assumed the role of an adjudicating body., Mr. Chinoy argued that Section VIII(4) of the Employee Stock Option Scheme does not enable the bank to revoke retirement benefits or Employee Stock Options on any general ground of non‑compliance with good conduct during the period of employment. The clause refers only to compliance with the Undertaking of Good Conduct dated 19 July 2016, which imposes limited post‑retirement obligations such as non‑solicitation and non‑disparagement., He referred to the Undertaking of Good Conduct dated 19 July 2016, annexed as Exhibit W to the plaintiff's suit, and noted that the bank's letters of 30 January 2019 and 1 February 2019, which purported to treat Mrs. Kochhar as terminated for cause, provided that the Undertaking would continue to operate. The plaintiff's affidavit of sur‑rejoinder correctly limited the reference to good conduct to that specific undertaking., Mr. Chinoy submitted that the clause in the Early Retirement Scheme 2005 (as modified in July 2016) reserving to the bank the right to withdraw benefits on the ground of non‑compliance with good conduct mirrors the provision in Section VIII(4) of the Employee Stock Option Scheme and refers only to the Undertaking of Good Conduct dated 19 July 2016. It does not enable the bank to revoke retirement benefits on any general ground of non‑compliance during employment., He argued that the board's resolution of 4 October 2018 accepting the early retirement request set out the terms governing early retirement and did not refer to the standard Early Retirement Scheme terms. The stipulation that two benefits would be determined by the board on completion of the enquiry was a specific term communicated in the acceptance letter, not a standard ERS condition., Mr. Chinoy concluded that ICICI Bank has no real defence to Mrs. Kochhar's claim impugning the purported termination for cause after having agreed to her retirement, and that unless interim orders are made, Mrs. Kochhar will be wrongfully deprived of her agreed retirement benefits, including the Employee Stock Options at discounted prices. The interest of justice and balance of convenience require that the interim relief sought by Mrs. Kochhar be granted., Senior Counsel Mr. Darius Khambata submitted that the Employee Stock Options contract and the employment contract are separate contracts. The employment contract is governed by the letter of appointment, board approvals, RBI approvals, deeds of covenants and various bank policies. The Employee Stock Options are governed by a separate and independent contract contained in the Employee Stock Option Scheme and the award and vesting confirmations, which expressly state that they do not form part of any employment contract., Mr. Khambata further submitted that the bank's policies, such as the Code of Conduct and Framework for Managing Conflict of Interest, require employees to maintain good conduct and not engage in misconduct. He relied upon the Clawback Letter dated 8 December 2016 signed by Mrs. Kochhar, which provides for clawback of previously paid performance bonus in the event of an enquiry determining gross negligence or integrity breach. The Employee Stock Option Scheme also requires compliance with the Code of Conduct, and provides that if employment is terminated for cause (including willful or gross misconduct), no option shall vest and any unexercised vested options shall lapse., He dealt with Mr. Chinoy's submission that the letter of 4 October 2018 created a new contract, arguing that for a new contract to exist there must be consideration. In the absence of consideration, the letter cannot constitute a new contract between the parties., Mr. Khambata submitted that if the letter of 4 October 2018 were to be treated as a new contract, it must be in terms of the bank's Early Retirement Scheme. He further stated that the offer dated 3 October 2022 (presumably 2018) is necessarily an offer under the Early Retirement Scheme and not independent of it.
id_1313	1	Consequently, any acceptance by ICICI Bank of this offer is necessarily on the basis that the offer was made pursuant to the terms of the Early Retirement Scheme (ERS). This is made clear by the letter dated 4 October 2018 which expressly refers to the ERS as the basis for granting early retirement benefits to Mrs. Kochhar., Mr. Khambata submitted that the case relied upon by Mrs. Kochhar, National Textile Corporation (Supra), wherein the Supreme Court of India held that where an offer for voluntary retirement in terms of a scheme of voluntary retirement is accepted, the matter relating to implementation of such offer is governed by the terms and conditions of the scheme, is not applicable. He further stated that for the first time in the Sur Rejoinder oral arguments it was contended on behalf of Mrs. Kochhar that the terms of her early retirement contract are not those in the ERS but only those set out in Annexure I to the Board Resolution dated 4 October 2018. This contention is misconceived and untenable as no case has been pleaded or asserted on affidavit by Mrs. Kochhar., The Board Resolution itself notes that Mrs. Kochhar was eligible to apply for the ERS. Her early retirement would be in line with the treatment accorded to other whole‑time directors or employees who have availed of the ERS. Annexure I is only a list of benefits on early retirement request being accepted and cannot be said to override the ERS or be exhaustive of the terms of Mrs. Kochhar’s early retirement. The Board Resolution (including Annexure I) was not communicated to Mrs. Kochhar at the time that the letters of 3 October 2018 and 4 October 2018 were exchanged and hence no independent contract based upon Annexure I could have arisen., Mr. Khambata submitted that the ERS expressly provides that in the event of non‑compliance with good conduct the Bank reserves the right to review vesting and exercise of options over the Exercise Period and to withdraw any features or benefits given under the ERS at its sole discretion., Assuming that the letter dated 4 October 2018 created a new contract, the terms of that contract entitled ICICI Bank to review and withdraw Mrs. Kochhar’s Employee Stock Option Plans (ESOPs) and other retirement benefits if she failed to comply with good conduct., Mr. Khambata further submitted that, in any event, the 4 October 2018 letter was issued on account of fraudulent misrepresentation by Mrs. Kochhar for not disclosing her misconduct and suppressing various facts from ICICI Bank and was subsequently revoked by the communication dated 30 January 2019 addressed by ICICI Bank to Mrs. Kochhar., He later made submissions that reference to good conduct in the contract is not a reference to the Undertaking dated 19 July 2016. He placed reliance upon the plain meaning of the words used in the Employee Stock Option Scheme (ESOS) wherein the words are an undertaking of continued good conduct and no specific reference is made to the Undertaking dated 19 July 2016. It would be contrary to the object of the ESOS to give a restricted meaning to good conduct such that an employee who commits misconduct, including suppression of such misconduct, after retirement would nevertheless be entitled to retain his or her ESOPs., Mr. Khambata submitted that the Undertaking of Good Conduct itself refers to the behaviour of an employee during the course of his employment, as can be seen from paragraphs (c), (d) and (e) of the Undertaking, which clearly shows that the Undertaking applies to conduct of employees during and after their employment. Accordingly, there is no merit in the contention on behalf of Mrs. Kochhar that good conduct only refers to the post‑retirement Undertaking. He also relied upon the first paragraph of the Undertaking which states that these undertakings and commitments would include all the Bank’s policies as applied to its employees (collectively referred to as the Contract). Hence, the obligations in the Undertaking are not restricted only to the clauses stated in the Undertaking but also include the obligations under ICICI Bank’s policies applicable to its employees., Mr. Khambata submitted that the 4 October 2018 letter cannot and does not put an end to the rights and obligations of the parties under the Employment Contract and the ESOPs contract. In her suit, Mrs. Kochhar sought to make out a case akin to waiver, contending that by accepting her request for early retirement, the Bank was precluded in law from terminating her services and from rescinding its contractual commitments flowing from the 4 October 2018 letter. He submitted that ICICI Bank never waived its rights by the initial acceptance of Mrs. Kochhar’s early retirement. Waiver requires that the person against whom it is claimed have full knowledge not only of his rights but also of the facts enabling him to take effectual action for enforcement of such rights, and therefore must be unequivocal. In this context, Mr. Khambata relied upon the Supreme Court decisions in Associated Hotels of India Ltd. v. S.B. Sardar Ranjit Singh, P. Dasa Muni Reddy v. P. Appa Rao, and Kalpraj Dharamshi v. Kotak Investment Advisors Ltd., He further submitted that at the time ICICI Bank accepted Mrs. Kochhar’s request for early retirement, it did not have knowledge of all the facts regarding her misconduct and breaches. Accordingly, there could have been no waiver by ICICI Bank of its rights under the employment contract and the ESOPs contract., Mr. Khambata submitted that the Supreme Court in United Bank of India v. Bachan Prasad Lall held that merely because an employee is superannuated does not absolve him from misconduct committed in the discharge of his duties. A bank employee always holds a position of trust where honesty and integrity are the sine qua non, and it would never be advisable to deal with such matters leniently., He submitted that it is clear from the ESOPs contract that it is a separate contract which governs the employee to whom the ESOP is issued even after the employment comes to an end, whether by termination or by retirement. Thus, even if an employee commits a violation or misconduct during his employment, but the same is discovered by ICICI Bank after the employee’s retirement, the ESOPs contract allows ICICI Bank to forfeit such employee’s ESOPs., Mr. Khambata thereafter made submissions on the circumstances in which ICICI Bank accepted Mrs. Kochhar’s request for early retirement. He referred to Section 10B(1) of the Banking Regulation Act, 1949 which requires a banking company with a chairman appointed on a part‑time basis to entrust the management of the whole of the affairs of the banking company to a managing director. Section 10B(9) of the Act, beginning with a non‑obstante clause, provides that where a managing director dies, resigns, is rendered incapable of carrying out his duties, or is absent on leave, the banking company may, with the approval of the Reserve Bank of India, make interim arrangements for carrying out the duties of the managing director for a maximum period of four months., In the present case, Mrs. Kochhar went on leave from 18 June 2018, after ICICI Bank’s Board of Directors initiated an enquiry headed by Justice Srikrishna (Retired) to look into the whistle‑blower complaint made against her in 2018. ICICI Bank made interim arrangements for her duties during her absence and obtained the Reserve Bank of India’s approval for such interim arrangement effective from 18 June 2018. Under Section 10B(9), the maximum permissible four‑month period expired on 17 October 2018, and the Board could not have accepted any further extension of her leave beyond that date. However, at the beginning of October 2018 the enquiry was still in process. On 3 October 2018, shortly prior to the expiry of the four‑month period, the Board received a request from Mrs. Kochhar for early retirement under the ERS and accepted her request on 4 October 2018., Mrs. Kochhar herself relied on the statutory requirements of the Banking Regulation Act as the purported reason for seeking early retirement. Considering that the enquiry was ongoing and likely to continue beyond 18 October 2018, ICICI Bank could not have asked her to resume her duties as Managing Director and CEO pending the enquiry, nor could it have terminated or removed her pending the enquiry. Accordingly, at the relevant time the only option available to ICICI Bank was to accept her request for early retirement., Further, at the time ICICI Bank accepted Mrs. Kochhar’s request for early retirement, full facts regarding her conduct and her non‑compliance with good conduct were not known to the Bank. Therefore, there could have been no waiver on the part of ICICI Bank. He placed reliance upon the Supreme Court decision in Dhanukdhari Singh v. Nathima Sahu, which holds that the burden of proof of knowledge is on the party relying upon a waiver and such knowledge must be plainly made to appear. Mrs. Kochhar has not been able to prove that ICICI Bank had knowledge of all the facts regarding her breaches and misconduct on 4 October 2018; consequently, no waiver could have arisen., Mr. Khambata submitted that reliance by Mrs. Kochhar on the last paragraph of the 4 October 2018 letter is incorrect because the benefits mentioned therein were awaiting approval from the Reserve Bank of India and had not yet been granted to her. Such benefits were unlike the other ESOPs which had already been granted to Mrs. Kochhar. It was clarified in the letter that even if the Reserve Bank of India approved such benefits, the Board would not proceed with any determination pending the enquiry by Justice Srikrishna (Retired)., Mr. Khambata thereafter made submissions on the findings of gross and serious misconduct by Mrs. Kochhar that came to the knowledge of ICICI Bank only in January 2019 upon receipt of the enquiry report of Justice Srikrishna (Retired). He referred to findings in the report including non‑disclosure of her husband Mr. Deepak Kochhar’s involvement in Credential Finance Limited, a company in which the Videocon group was a substantial shareholder along with Mr. Kochhar and his brother. Although Mrs. Kochhar contended that the enquiry report was marked privileged, confidential, or private, the report was the source from which ICICI Bank first became aware of the gross and serious misconduct committed by her while she was Managing Director and CEO. He submitted that selective disclosures by Mrs. Kochhar of some of Mr. Kochhar’s directorships demonstrate that she was aware of his business dealings and consciously chose not to disclose his directorships in Credential Finance Limited and Quality Techno Advisers Private Limited, companies in which the Videocon group was a substantial shareholder., Mr. Khambata submitted that the order dated 6 November 2020 of the Adjudicating Authority under the Prevention of Money Laundering Act, 2002 (PMLA) cannot be relied upon by Mrs. Kochhar to contend that she has been exonerated of any misconduct. The PMLA proceedings were restricted to allegations of money laundering, which is distinct from the issue of non‑disclosure of conflict of interest. The AO order itself notes that questions of conflict of interest, disclosure obligations and compliance with fiduciary duties are beyond the scope of adjudication under the PMLA and therefore are not required to be dealt with in the order. Moreover, the AO order states that the proceedings before the Adjudicating Authority were not a trial but only a prima facie determination of whether a case existed demonstrating that Mrs. Kochhar had committed an offence under the PMLA. This is irrelevant to the issues arising in these suits. He also relied upon the order passed by the Appellate Authority under the PMLA, wherein a prima facie case was found in favour of the Enforcement Directorate and a status quo was directed to be maintained with respect to the relevant assets of Mrs. Kochhar, and it was specifically stated that the findings in the AO order dated 6 November 2020 should not be considered final pending the appeal., Mr. Khambata thereafter dealt with the contention on behalf of Mrs. Kochhar that the disciplinary procedure under the Code of Conduct was not followed in the acceptance by ICICI Bank of the enquiry report of Justice Srikrishna (Retired). He submitted that this contention is misconceived as there was no pleaded case in Mrs. Kochhar’s suit or in the several affidavits filed by her making such a contention. Her leave petition under Order II Rule 2 only indicates that she intends to challenge the process and the findings of the enquiry. Furthermore, the Code of Conduct deals with disciplinary action for employees up to the level of Senior General Manager; the highest appellate authority under such procedure is the Managing Director and CEO, the position held by Mrs. Kochhar. The Code of Conduct provides only indicative guidance for formulating disciplinary procedures, and the Bank has the flexibility to formulate an appropriate procedure without taking action against an employee, including omitting any or all levels of action under the Code of Conduct. In fact, taking account of the fact that allegations were made against the Managing Director and CEO, the Board appointed Justice Srikrishna (Retired) to conduct the enquiry to ensure a fair and independent process., Mr. Khambata made submissions that Mrs. Kochhar is not entitled to reliefs as she sought to mislead this Court by making false statements with respect to the ERS and the Vesting Confirmation. She contended that the copy of the ERS produced by ICICI Bank was false and incorrect. She claimed that the document issued to her, viz. the letter dated 24 September 2018, provided her with the ERS 2005 and the benefits she would be entitled to, and that this document did not contain the clause \The Bank reserves the right to withdraw any features/benefits given under ERS at its sole discretion in the event of non‑compliance with good conduct\. ICICI Bank then placed on record the ERS as amended in 2016, which was approved by Mrs. Kochhar as Managing Director and CEO and contained the above clause. The document demonstrates the falsity of Mrs. Kochhar’s statements made on oath before this Court., Regarding the false statements with respect to the Vesting Confirmation, Mrs. Kochhar had not produced the ESOS, Award Confirmations and her Vesting Confirmations along with the suit. ICICI Bank initially produced only a sample Vesting Confirmation to show that it contained terms which entitled the Bank to review vesting and exercise of ESOPs over the Exercise Period in the event of non‑compliance with good conduct. In her affidavit in Sur Rejoinder filed on 30 June 2022, Mrs. Kochhar falsely stated that the sample Vesting Confirmation was false/incorrect and that no such letter containing any such stipulation was ever issued to or received by her. Accordingly, ICICI Bank produced copies of emails addressed to Mrs. Kochhar enclosing the Vesting Confirmation which contained the said term. These emails demonstrate the false statement made by Mrs. Kochhar on oath to mislead this Court. He submitted that Mrs. Kochhar has therefore not approached this Court with clean hands, relying upon the decisions in S.P. Chengalvaraya Naidu (Dead) by L.Rs v. Jagannath (Dead) by LRs and Ors., and Oswal Fats and Oils Limited v. Additional Commissioner (Administration), Bareilly Division & Ors., Mr. Khambata submitted that in light of the foregoing submissions on behalf of ICICI Bank, particularly their entitlement to revoke the acceptance of early retirement by terminating Mrs. Kochhar’s services with cause on account of the findings in the enquiry report, the relief sought in the interim application filed by ICICI Bank should be granted. Mrs. Kochhar is not entitled to any relief in the interim application filed by her because she has not approached this Court with clean hands. In any event, the ESOPs claimed by Mrs. Kochhar have already lapsed and been added to the common pool of ESOPs from which they have been distributed to other eligible employees of ICICI Bank. No prejudice would be caused to Mrs. Kochhar if such interim reliefs are refused since ICICI Bank is a listed company and, if Mrs. Kochhar succeeds in her suit, equivalent shares could be granted to her along with any monetary loss suffered due to a fall in share prices. Moreover, the relief sought by Mrs. Kochhar is in the nature of final relief and would be equivalent to a decree at the interim stage, which would cause huge prejudice to ICICI Bank because it would be impossible for the Bank to cancel such shares and recover them from Mrs. Kochhar if she sells the shares in the interim period., Having considered the rival submissions, it is necessary to note the circumstances in which ICICI Bank accepted the offer of early retirement made by Mrs. Kochhar. At the time the Bank accepted her offer, the enquiry initiated by the Board of Directors on 6 June 2018 was ongoing and was headed by Justice Srikrishna (Retired)., ICICI Bank had a case where a news article raising various allegations against Mrs. Kochhar appeared in July 2016. A reputed law firm conducted an independent enquiry and found no merit in the allegations. However, two years later the Bank received a whistle‑blower complaint with similar allegations, leading to the initiation of the enquiry headed by Justice Srikrishna (Retired)., Mrs. Kochhar contended that ICICI Bank’s acceptance of her early retirement resulted in a contract for retirement that could be rescinded only on the grounds available under Sections 17 to 19 of the Indian Contract Act, i.e., undue influence, misrepresentation or fraud, on the premise that the retirement contract put an end to the rights and obligations under the pre‑existing employment contract and ESOPs contract. This contention cannot be accepted. In my prima facie view, the submission of Mr. Khambata that the ESOPs contract and the employment contract are two separate contracts requires acceptance. The ESOPs issued to Mrs. Kochhar are governed by the terms contained in the Employee Stock Option Scheme (ESOS), the Award Confirmations and the Vesting Confirmations issued to her from time to time., In the ICICI Bank Employees Stock Option Scheme 2000 (ESOS) certain terms and conditions governing Mrs. Kochhar’s ESOPs are relevant: (i) Section III(z) defines a vesting confirmation as a written communication by the Bank to the participant evidencing vesting of options; (ii) Section VIII[2(b)] provides that no option or any part thereof shall vest if the participant’s employment is terminated by the Bank for cause; (iii) Section VIII(4) provides that if the participant’s employment terminates due to retirement (including early/voluntary retirement), the options shall vest as stipulated in the Award Confirmation, subject to the participant demonstrating compliance with the Code of Conduct including an undertaking of continued good conduct; (iv) Section X(3) states that if the participant’s employment is terminated by the Bank for cause, the participant’s vested options, to the extent then unexercised, shall cease to be exercisable and shall lapse and stand terminated forthwith; (v) Section XI(8) provides that the grant of an option shall not be construed as giving a participant the right to be retained in the employment of the Bank, and that neither the scheme nor the Award Confirmation nor the Vesting Confirmation shall form part of any contract of employment between the Bank and the participant; (vi) Section XII provides that the grant of options shall be evidenced by an Award Confirmation specifying the number of options granted and the terms and conditions of the grant; (vii) Section XIII provides that the vesting of options shall be evidenced by a Vesting Confirmation specifying the number of options vested and the terms and conditions of the vesting., The sample Award Confirmation Letter annexed as Exhibit 8 of the affidavit in rejoinder in Interim Application No. 307 of 2020 states: \Please note that the Bank reserves the right to review vesting of the Options over the Exercise Period in the event of non‑compliance with good conduct.\, The statement of risks that forms part of the sample Award Confirmation letters reads: \Vesting: The options will lapse if the employment is terminated prior to vesting. Even after the options are vested, the unexercised options may be forfeited if the employee is terminated for gross misconduct.\, The sample Vesting Confirmation Letter annexed as Exhibit 9 of the affidavit in rejoinder in Interim Application No. 307 of 2020 provides: \You may note that vesting and subsequent exercise of the Options is subject to the terms and conditions specified in the Scheme. Please note that the Bank reserves the right to review vesting and exercise of the options over the Exercise Period in the event of non‑compliance with good conduct.\, Thus, it is clear from the extracted provisions of the ESOS as well as the sample Award Confirmation and Vesting Confirmation letters that the grant of options to the employee is treated as a separate contract and is not to be construed as giving the participant the right to be retained in the employment of the Bank. Neither the ESOS nor the Award Confirmation nor the Vesting Confirmation forms part of any contract of employment between the Bank and the participant. Compliance with the Code of Conduct, i.e., good conduct, is mandatory and non‑compliance would result in the Bank reviewing the vesting and exercise of the options over the Exercise Period, which would not exceed the tenth anniversary from the date of vesting (as per the annexure to the Award Confirmation, the Vesting Schedule). Accordingly, in my prima facie view, the mere acceptance of Mrs. Kochhar’s early retirement cannot result in wiping out the rights and obligations of the parties under the ESOS and/or the ESOPs contract., In contending on behalf of Mrs. Kochhar that the acceptance of her request for early retirement precluded ICICI Bank in law from terminating her services and from rescinding its contractual commitments flowing from the 4 October 2018 letter, a case akin to waiver of rights by the Bank is sought to be made out. It is well settled that a case of waiver can only be claimed against a person provided he had full knowledge not only of his rights but also of the facts enabling him to take effectual action for enforcement of such rights; thus, waiver must be unequivocal. The Supreme Court decisions relied upon by Mr. Khambata—Associated Hotels of India Ltd. (Supra), P. Dasa Muni Reddy (Supra) and Kalpraj Dharamshi (Supra)—are apposite. In view of the circumstances when the early retirement offer was accepted, and particularly considering that ICICI Bank did not have the benefit of the findings in the enquiry report of Justice Srikrishna (Retired), there can be no waiver by the Bank of its rights under the employment contract and the ESOS as contended. This is apart from my prima facie finding that the ESOPs issued to the employee continue to be governed by the ESOS and/or the ESOPs contract even after the employment comes to an end, whether by termination or retirement., It is necessary to note that Mrs. Kochhar herself proceeded on leave from 18 June 2018, subsequent to the Board’s initiation of the enquiry headed by Justice Srikrishna (Retired). Under Section 10B(9) of the Banking Regulation Act, a maximum permissible period of four months is provided for an interim arrangement to be made for carrying out the duties of the Managing Director. The four‑month interim arrangement expired on 17 October 2018, and the Board was therefore not in a position to accept any further extension of Mrs. Kochhar’s leave beyond that date. When the offer of early retirement was made by Mrs. Kochhar, Justice Srikrishna (Retired) was still conducting the enquiry and, upon receiving her request, the Board accepted it on 4 October 2018. Mrs. Kochhar has admitted and relied upon the statutory requirements of the Banking Regulation Act as the reason for her decision to seek early retirement., Much has been said about the Undertaking of Good Conduct. Mr. Chinoy contended that the reference in the ESOS to good conduct is to the Undertaking of Good Conduct dated 19 July 2016. He further contended that the said Undertaking is also referred to in the Early Retirement Scheme and is made applicable as one of the conditions for acceptance of the early retirement offer made by Mrs. Kochhar. Thus, the contention is that whether in the employment contract or the ESOPs contract, the words \good conduct\ necessarily refer to the Undertaking dated 19 July 2016 of Good Conduct and that this Undertaking is part of the acceptance of the early retirement letter dated 4 October 2018. The Undertaking of Good Conduct is sought to be limited to post‑retirement obligations of Mrs. Kochhar, namely (i) non‑solicitation or employment of officers or employees of constituents, as well as clients or service providers for a period of one year from cessation of services, and (ii) non‑publication of information and non‑disparagement of the ICICI Group or its officers.
id_1313	2	I am not inclined to accept these contentions, in view of the fact that apart from the prima facie view arrived at that Employee Stock Option Plans Contract and Employment Contract are two separate contracts, there is no reference made in the Employee Stock Option Scheme, in particular Section VIII (4) thereof that the undertaking of continuing good conduct is referable to the Undertaking of Good Conduct dated 19th July, 2016 annexed to the ICICI Bank's letter of acceptance of early retirement offer dated 4th October, 2018. Further, in Section VIII (4) of the Employee Stock Option Scheme the words are subject to the Participant demonstrating compliance with the Code of Conduct including Undertaking of Continuing Good Conduct. Thus, the demonstration of compliance with the Code of Conduct cannot be limited to the Undertaking dated 19th July, 2016. It is a well settled position of law that the Supreme Court of India is not to explore the undisclosed intention behind the words of a contract but only to take the plain meaning of words used with reference to the object of the whole of the terms of the contract. This has been held by the Supreme Court of India in Bangalore Electricity Supply Co. Ltd. Vs. E.S. Solar Power Pvt. Ltd. In my view there is much merit in the submission of Mister Khambata that the whole purpose and object of the Employee Stock Option Scheme was to reward good performance of employees and to give them a stake in the future success of the Company. It would be contrary to the object of the Employee Stock Option Scheme to say that Good Conduct is given a restricted meaning such that, if the misconduct of an employee is discovered after his or her retirement, such an employee would nevertheless be entitled to retain his or her Employee Stock Option Plans., The first paragraph of the Undertaking of Good Conduct dated 19th July, 2016 states that these undertaking and commitments would include all the Bank's policies as applied to its employees (collectively referred to as the contract). Thus the Undertaking necessarily included the obligations under ICICI Bank's policies applicable to the employees which would include the Code of Conduct and the Employee Stock Option Scheme. Further, Paragraphs (c), (d) and (e) of the Undertaking itself has references to the behaviour of the employee during the course of his employment which clearly shows that the Undertaking itself applies to conduct of employees during and after the employment. Thus, I find no merit in Mrs. Kochhar's contention that Good Conduct is limited to post retirement., I do not find any merit in the submission of Mister Chinoy that the Enquiry headed by Justice Srikrishna (Retired) was only allowed to proceed, even after acceptance of the early retirement by ICICI Bank, in view of the last paragraph of the said letter dated 4th October, 2018 which refers to certain specific benefits of early retirement which was made subject to the Enquiry by Justice Srikrishna (Retired). The benefits referred to in the last paragraph of the letter appear to be those benefits yet to be granted and for which approval was awaited from the Reserve Bank of India. These benefits are unlike the other Employee Stock Option Plan benefits which had been granted in the past to Mrs. Kochhar. Thus, it was clarified that if the Reserve Bank of India approved such benefits, the Board would not proceed with making any determination on the same pending enquiry by Justice Srikrishna (Retired)., It appears from the findings of the Enquiry Report submitted by Justice Srikrishna (Retired) that there is non‑disclosure by Mrs. Kochhar of certain directorships of her husband Mister Deepak Kochhar in companies where Videocon Group was either a substantial shareholder or which were part of the Videocon group. Further, Mrs. Kochhar had sat on various committees of ICICI Bank which sanctioned loans to Videocon Group and the Essar Group of which Mister Deepak Kochhar had direct or indirect business dealings without disclosing the actual or potential conflicts of interest. Knowledge of these facts came to ICICI Bank upon receipt of the Enquiry Report on 27th January, 2019. Thus ICICI Bank immediately thereafter took steps to revoke the acceptance of early retirement benefits with immediate effect by its letter dated 30th January, 2019 and thereafter seek the Reserve Bank of India's approval to treat the separation of Mrs. Kochhar as termination for cause. This approval of the Reserve Bank of India came on 13th March, 2019 with effect from 4th October, 2018., Prima facie, I find that the revocation of the early retirement acceptance is valid and do not find, given the facts in the present case, any merit in the contention on behalf of Mrs. Kochhar that once there is cessation of employer and employee relationship, then acceptance of early retirement cannot be revoked. The decisions relied upon by Mister Chinoy in National Textile Corporation (Madhya Pradesh) Ltd. (Supra), and HEC Voluntary Retired Employees Welfare Society (Supra) are inapplicable to the facts of the present case., I do not find any merit in the submission that the Enquiry was a preliminary enquiry headed by Justice Srikrishna (Retired) and that such preliminary enquiry could not result in disciplinary procedure or action taken against Mrs. Kochhar after cessation of employer and employee relationship by acceptance of early retirement on 4th October, 2018. The disciplinary action set out in the Code of Conduct only deals with employees up to the level of Senior General Manager and in fact the highest appellate authority under such procedure is the Managing Director and Chief Executive Officer of ICICI Bank i.e. the position held by Mrs. Kochhar. The Code of Conduct only contains an indicative guidance for formulating disciplinary procedures. Undoubtedly, ICICI Bank has the flexibility to formulate the appropriate procedure to be followed when taking action against an employee, including omitting any or all levels of action under the Code of Conduct. Further, taking into account the fact that for allegations of misconduct against the Managing Director and Chief Executive Officer, I find that there is no specific procedure identified under the Code of Conduct. I further find no fault in the enquiry headed by Justice Srikrishna (Retired), which is with the view to ensure a fair and independent process, particularly with regard to the allegations of misconduct made against the Managing Director and Chief Executive Officer of ICICI Bank., It is an admitted position that Mrs. Kochhar had provided both oral and written submissions during the enquiry upon the opportunity given to her and it is not now open for Mrs. Kochhar to contend that the enquiry was in breach of principles of natural justice. Further, Mrs. Kochhar does not seem to have indicated the prejudice caused to her by her not being given a second hearing as contended and as to what additional material she would have placed before Justice Srikrishna (Retired), if she was given a second hearing., Having considered that the acceptance of early retirement by ICICI Bank was on account of its not having complete knowledge of the facts, including non‑disclosure by Mrs. Kochhar of various facts which were only learnt of upon receipt of the enquiry report by Justice Srikrishna (Retired), in my prima facie view, ICICI Bank was justified in revoking acceptance of early retirement vide communication dated 30th January, 2019., I find that Mrs. Kochhar has not come with clean hands in that she had feigned ignorance of the Employee Retirement Scheme (amended in 2016) by placing reliance upon letter dated 24th September, 2018 issued by the Board of ICICI Bank to her which provided the benefits she would be entitled to under the Employee Retirement Scheme, 2005. Thereafter ICICI Bank placed on record the Employee Retirement Scheme 2005 (as amended in 2016) which was approved by Mrs. Kochhar as ICICI Bank's Managing Director and Chief Executive Officer which contained the clause that ICICI Bank had reserved its right to withdraw any features or benefits given under the Employee Retirement Scheme in the event the employee did not comply with good conduct. Mrs. Kochhar contended that this clause was not contained in the said letter dated 24th September, 2018 which had been issued to her. Mrs. Kochhar has thus suppressed the Employee Retirement Scheme amended in 2016 which she herself had approved., Further, I find that Mrs. Kochhar had made an incorrect statement that the Sample Vesting Confirmation was never issued or received by her. ICICI Bank thereafter produced the emails addressed to Mrs. Kochhar enclosing the Vesting Confirmations which contain the term that ICICI Bank reserves the right to review vesting and exercise of Employee Stock Option Plans over the Exercise Period in the event of non‑compliance with good conduct., In view of the above prima facie findings, as well as Mrs. Kochhar not coming to the Supreme Court of India with clean hands, the Interim Application No. 1014 of 2022 filed by Mrs. Kochhar is dismissed., In so far as the Interim Application No. 307 of 2020 filed by ICICI Bank is concerned, the following order is passed: (i) Mrs. Kochhar is restrained by an order of injunction from dealing with any of the six hundred ninety thousand Employee Stock Option Plans already exercised by her during the period from 4th October, 2018 to 30th January, 2019. (ii) Mrs. Kochhar shall disclose if she has sold or dealt with any of such shares as well as disclose her gain from such sale which shall be by way of Affidavit of Disclosure to be filed by her within six weeks from uploading of this Order., The Interim Application No. 1014 of 2022 and Interim Application No. 307 of 2020 are accordingly disposed of. There shall be no order as to costs.
id_1315	0	Special Leave to Appeal Criminal No. 3482 of 2023 has been filed by the victim (redacted as XXX) assailing the correctness of the order dated 20 February 2023 passed by the Circuit Bench of the High Court of Calcutta at Port Blair granting bail to respondent No. 2 (Jitendra Narain), Ex‑Chief Secretary of Andaman and Nicobar Islands for offences under sections 376(D), 228A, 506 and 120B of the Indian Penal Code, 1860. Special Leave Petition Criminal No. 5099 of 2023 has been preferred by the State/Union Territory of Andaman and Nicobar Islands for the same relief as claimed in Special Leave to Appeal Criminal No. 3482 of 2023. Further Special Leave Petition Criminal No. 5131 of 2023 has been filed by the State/Union Territory of Andaman and Nicobar Islands assailing the correctness of the order dated 22 February 2023 passed by the High Court of Calcutta granting bail to the sole respondent (Sandeep Singh alias Rinku), co‑accused arising out of the same FIR. Lastly, Special Leave Petition Criminal No. 5192 of 2023 has been filed by the State/Union Territory of Andaman and Nicobar Islands assailing the order dated 22 February 2023 granting bail to sole respondent (Rishishwar Lal Rishi), another co‑accused from the same FIR. The orders dated 22 February 2023 are primarily based on the ground of parity as bail had been granted to the alleged main accused Jitendra Narain on 20 February 2023., We have heard learned counsel for the victim petitioner, the State/Union Territory of Andaman and Nicobar Islands and the three accused/respondents., As the main order has been passed in the case of Jitendra Narain on 20 February 2023, at the outset, the same is being referred to. The Division Bench of the High Court of Calcutta considered the brief facts and thereafter noted that any reference made on the submissions relating to the evidence collected during investigation and the various pleas raised on behalf of the accused could materially affect the trial, and accordingly did not deal with the same. The High Court of Calcutta specifically noted this aspect in the following words: \We do not want to discuss all these materials in detail because that may influence the trial and merit of the case and it has also potency to prejudice the accused and in some manner to the prosecution also.\, The High Court of Calcutta further noted that as the accused Jitendra Narain, an Indian Administrative Service officer, has already been transferred to Delhi, if some stringent conditions are put, the petitioner (Respondent No. 2 herein) would not be in a position to influence any of the witnesses in the Islands. The Division Bench also observed that Jitendra Narain being in service, there would be no chance of him absconding. The Court further noticed that there was no material to impress that in case he was released, he would influence the witnesses or there would be any danger of justice being thwarted. On such considerations, the Division Bench proceeded to grant bail, subject to the following five conditions being imposed in addition to the terms and conditions that would be imposed by the Chief Judicial Magistrate: (1) The petitioner shall not visit the Andaman and Nicobar Islands except for the purpose of attending the trial on proper receipt of notice from the Trial Court. (2) He shall not keep any contact with any person or official of these Islands by phone or by any other mode of communication during the currency of this order. (3) He shall not threaten, induce or coerce any witness of the case in any manner, whatsoever, during the currency of this order by any means of communication. (4) He shall not leave the Union of India except with permission of the competent authority of the Union of India on urgent official work. (5) The petitioner, through his counsel, shall submit his passport before the Trial Court during the currency of the trial and, in case of his official visit abroad, the passport can be handed over to him by the Trial Court on proper application., In the case of the two other co‑accused, Rishishwar Lal Rishi and Sandeep Singh alias Rinku, the Division Bench not only considered the order dated 20 February 2023 granting bail to Jitendra Narain, the main accused, but also took into consideration the lesser role for offences under sections 354, 376 and 120B of the Indian Penal Code alleged against them and granted bail imposing similar five conditions., Learned counsel for the victim as also the State (petitioners) have drawn our attention to the material collected during the investigation. The Court has been taken through the police report submitted under section 173(2) of the Code of Criminal Procedure, 1973 as also to specific instances and incriminating material against the accused., On the other hand, learned counsel for the accused have pointed out various inconsistencies, contradictions and deficiencies in the investigation and the evidence collected to show the falsehood of the prosecution case., As indicated hereinafter, and subject to what follows, but for entirely different reasons, we are in agreement with the ultimate view of the High Court of Calcutta. In this scenario, we consciously refrain from commenting upon the contentions put forth by learned counsel on both sides on the alleged inconsistencies, contradictions and/or deficiencies in the opposite side's case., The law regarding the parameters or circumstances to be considered in granting bail or refusing bail is well laid out in a series of judgments of this Court, the Supreme Court of India; however, we have referred to a couple of them hereinafter., A three‑judge Bench of the Supreme Court of India in Jagjeet Singh versus Ashish Mishra reiterated and approved the factors to be considered for grant of bail as was laid down in the case of Prasanta Kumar Sarkar versus Ashis Chatterjee in paragraph 9 thereof: \9. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are: (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail.\, Having considered the matter and the applicable law, this Court notes that the decision of the Division Bench of the High Court of Calcutta (Circuit Bench, Port Blair) dated 20 February 2023 in CRM (DB)/1/2023 has neither dealt with the real issue nor indicated reasons which are germane and, in our view, required consideration concerning the grant or rejection of bail., Rather, the High Court of Calcutta examined issues which ought not to have been the primary factors when considering the prayer for bail of respondent No. 2, especially what is recorded in the first two paragraphs at page 4 of the impugned judgment. This could have entailed remand to the High Court for a discussion, even if short, on the merits of granting bail in the present facts and circumstances. However, we have independently considered the matter on merits after hearing learned counsel in extenso. Having done so, we do not find reason to interfere with the impugned judgments. At the same time, the interest of justice must be preserved. In this light, we impose the following conditions in addition to those laid down by the High Court of Calcutta: (A) The Trial Court shall proceed expeditiously with the case and without any undue adjournments; (B) The accused‑respondent shall render full cooperation in the trial; (C) The accused‑respondent shall not leave the territory of India. Condition No. 4 imposed by the High Court shall stand modified accordingly, and (D) Condition No. 5 imposed by the High Court is varied and shall now read as: The petitioner shall submit his passport to the Trial Court. In case the petitioner holds more than one passport (diplomatic and/or personal), the other passport shall also be deposited with the Trial Court. Any violation of the terms and conditions stipulated supra and by the High Court of Calcutta would be grounds for cancellation of bail. The observations herein will not aid the accused nor impede the petitioner or the prosecution at trial., The petitioner fears for her and her family's safety. It is made clear that the onus of ensuring their safety is on the Union Territory Administration. Similarly, the Union Territory Police is put to notice in this regard. Insofar as the petitioner claims that the Director‑General of Police has not acted on her subsequent complaints seeking registration of First Information Reports against certain other persons, the Director‑General is directed to examine the same and take an independent decision on what action, if any, is called for, in accordance with law, within ten days from today. In these peculiar facts, we grant liberty to the parties to apply in case of difficulty., In view of the above discussion, the Special Leave Petitions fail and are hereby dismissed., Pending applications, if any, stand disposed of.
id_1316	0	BAIL Application No. 1536 of 2021. Applicant: Nitin Raj. Opposite Party: State of Uttar Pradesh. Counsel for Applicant: Nitin Kumar Mishra and Kamlesh Kumar Singh. Counsel for Opposite Party: Honourable Mohammad Faiz Alam Khan, Judge, Additional Government Advocate., The counter affidavit filed by the State is taken on record. The learned counsel for the applicant and the Additional Government Advocate for the State were heard and the record was perused. The bail application has been moved by the applicant Nitin Raj for grant of bail in Crime No. 142 of 2020, under Sections 145, 147, 149, 188, 353, 283, 427, 505 (B) of the Indian Penal Code, Section 7 of the Criminal Law (Amendment) Act and Section 66 of the Information Technology Act. The alleged offences arose from an incident at Police Station Thakurganj, District Lucknow, during the trial., The applicant’s counsel submits that the applicant has been falsely implicated and has not committed any offence as claimed in the First Information Report. The FIR alleges that the applicant, along with other co‑accused persons, participated in a ‘Dharna Pardarshan’ against the passage of the Citizenship Amendment Act at the heritage site ‘Ghantaghar’, obstructing the smooth flow of traffic and posting inflammatory material on social media., It is further submitted that the charge sheet filed under the aforementioned sections is punishable with imprisonment of less than seven years. The applicant was released from prison on 16 March 2020 due to the COVID‑19 pandemic, but surrendered again before the trial court on 12 January 2021 and has been lodged in jail since then. No complaint has been made against the applicant by any informant, including the Station House Officer of Police Station Thakurganj, during the period of his release. The applicant is a student with no criminal antecedents, and the charge sheet has already been submitted; therefore, further detention would not serve any useful purpose. The other co‑accused persons were not arrested during investigation, and there is no apprehension that the applicant, if released on bail, will flee or misuse his liberty., The Additional Government Advocate opposes the bail on the ground that the applicant participated in protests against the Citizenship Amendment Act, created a law and order situation at and around the heritage site, obstructed traffic, and had altercations with the local police. However, after hearing the submissions and perusing the record, the Court notes that the applicant was arrested following the FIR lodged on 17 January 2020, released on 16 March 2020 due to the nationwide lockdown, and surrendered again on 12 January 2021. The counter affidavit does not indicate any unlawful activity by the applicant after his release. The presence and movement of the applicant can be controlled by imposing suitable conditions. Considering that the applicant has no prior criminal history, is a student, and the offences are punishable with less than seven years imprisonment, the Court finds sufficient basis to release the applicant on bail., The bail application is allowed. The applicant Nitin Raj shall be released on bail upon furnishing a personal bond with two sureties in an amount satisfactory to the High Court of Judicature at Allahabad, subject to the following conditions: The applicant shall not tamper with prosecution evidence or intimidate witnesses during investigation or trial. The applicant shall cooperate in the trial sincerely without seeking any adjournment. The applicant shall not indulge in any criminal activity after being released on bail. Any breach of these conditions shall be a ground for cancellation of bail. Identity, status and residence proof of the applicant and sureties shall be verified by the High Court of Judicature at Allahabad before the bonds are accepted.
id_1318	0	Neutral Citation Number of LPA-676/2022: 2022/DHC/005243. Date of decision: 29 November 2022. LPA 676/2022 and CM Applications 50205/2022, 50206/2022, 50208/2022. Through: Miss Maninder Acharya, Senior Advocate, with Mister Ishan Dewan, Mister V. Siddharth, Mister Viplav Acharya, Miss Udita and Miss Priyal Bopana, Advocates, versus Through: Mister Nisha Awana, Mister G.S. Awana, Advocates, with Mister Vaibhav Yadav, Chief Manager, Bank of Maharashtra, Miss Monika Arora, CGSC, with Mister Yash Tyagi, Mister Shivam Raghuwanshi, Advocates., The appellant is aggrieved by the dismissal of the writ petition dated 17 November 2022 passed by the learned Single Judge in Writ Petition (Civil) 15854/2022 and seeks to assail that order by way of the present appeal., The appellant, a member of the Supertech Group, a real estate developer, approached a consortium of banks led by Union Bank of India and consisting of Bank of Maharashtra, Central Bank of India and Oriental Bank of Commerce for financial assistance for the Supernova project at Sector 94, Noida. The consortium agreed to lend financial assistance of Rs 735 crore, of which Rs 678.22 crore was disbursed, and also sanctioned a term loan of Rs 150 crore. On 29 September 2018, the appellant’s account was classified as a Non‑Performing Asset. Negotiations led to a One‑Time Settlement (OTS) for Rs 121.43 crore, which was later modified to Rs 120.94 crore. The amended terms required an upfront amount of Rs 9.16 crore already received, and the balance of Rs 111.78 crore to be paid in twenty‑four monthly instalments of Rs 4.66 crore after a three‑month moratorium from the date of conveying the original sanction to the borrower. Deferred period interest at one‑year Marginal Cost of Funds based Lending Rate (MCLR) of 7.25 % per annum was to be charged on the diminishing balance after the moratorium, with instalments payable in the first week of each month and processing fees waived., The dispute arose when the bank claimed that the appellant defaulted on the monthly instalments of Rs 4.66 crore, despite letters dated 11 October 2022, 14 October 2022 and 1 November 2022. The appellant contested the letters, asserting that the amounts were not due, and filed the writ petition seeking: (a) quashing of the impugned letters; (b) declaration that the moratorium period of three months under the sanction letter dated 18 August 2022 should be calculated from 18 August 2022; (c) extension of the moratorium period for six months from 19 November 2022; and (d) any other orders the Honorable Delhi High Court may deem fit., The learned Single Judge dismissed the writ petition, holding that the petition sought alteration of the contract terms, which can only be effected by mutual consent under Section 62 of the Indian Contract Act, 1872. The appellant challenges that order in the present appeal., The learned counsel for both parties were heard and the material on record was perused. The facts show that the appellant was unable to repay the loan sanctioned by the consortium, leading to the account being classified as a Non‑Performing Asset on 29 September 2018. A One‑Time Settlement was entered into on 15 June 2022 for Rs 121.43 crore, subsequently amended to Rs 120.94 crore. Under the amended terms, Rs 9.16 crore had been received, and the balance of Rs 111.78 crore was to be paid in twenty‑four instalments of Rs 4.66 crore after a three‑month moratorium from the date of conveying the original sanction to the borrower., The appellant argued that, since the OTS was amended on 18 August 2022, the three‑month moratorium should be calculated from that date rather than from 15 June 2022, the date of the original OTS. The learned Single Judge rejected this argument, stating that the moratorium period is to be calculated from the date of conveying the original sanction to the borrower, which was on 15 June 2022. The judge observed that the appellant failed to pay the first instalment of Rs 4.66 crore by 15 September 2022, the expiry date of the moratorium, and had paid only Rs 2.61 crore to date., The Delhi High Court finds no infirmity with the learned Single Judge’s order. The amended terms clearly required payment of Rs 111.78 crore in twenty‑four instalments after a three‑month moratorium from the date of conveying the original sanction, which was dated 15 June 2021. Consequently, the first instalment was payable by 15 September 2022, which the appellant did not pay., The Court notes that the writ petition was an attempt to renovate the contract, which cannot be permitted in a writ petition. It is settled law that High Courts exercising jurisdiction under Article 226 of the Constitution of India cannot rewrite contracts between parties. In Orissa State Financial Corporation v. Narshingh Ch. Nayak & Ors., (2003) 10 SCC 261, the Supreme Court observed that a High Court cannot, beyond the scope of a writ petition, pass orders that create a fresh contract or alter existing contractual obligations., The One‑Time Settlement entered into between the consortium of banks and the parties is a contract, and a borrower cannot seek alteration of the same by filing petitions under Article 226 of the Constitution of India; alterations are possible only through mutual consent. In view of the foregoing, the appeal fails and is dismissed along with all pending applications.
id_1319	0	CS (COMM) 344/2023 & I.As. 11777/2023, 15925/2023, Through: Mr. Chandra Prakash, Advocate along with Plaintiff in person versus Through: Mr. Mohit Chaudhary, Mr. Kunal Sachdeva and Ms. Srishti Bajpai, Advocates for Defendant No. 1. The hearing was conducted in hybrid mode., The present suit has been filed seeking a permanent injunction to restrain infringement of the plaintiff's copyright in original literary works. The plaintiff, Mr. Kartik Sharma, is a well‑known educationist, teacher, speaker and trainer with expertise in Artificial Intelligence. He conducted thorough research and prepared a framework aligned with the Central Board of Secondary Education curriculum to teach this subject to school students. The plaintiff authored the original literary work titled Essentials of Artificial Intelligence for classes VIII to XII., In February 2023, the plaintiff discovered the books titled Essentials of Information Technology for Classes IX and X, published by Defendant No. 1, which, according to the plaintiff, verbatim reproduce certain portions of the plaintiff's books for the said classes and violate the plaintiff's copyright. The authors of the said books have been identified as Defendants No. 7, 8 and 9 – Preeti Arora, Sachin Gupta and Bhoomi Gupta respectively., By order dated 3 July 2023, the High Court directed the Local Commissioner to file a report in the present suit. It was also directed that both parties produce their respective books, which formed the basis of the order dated 25 May 2023 and the application filed by the defendants., The Court has considered the matter. The books have been produced and it is seen that in two books – Essentials of Information Technology by Defendant No. 7, Preeti Arora, and Essentials of Artificial Intelligence by the plaintiff, Kartik Sharma – the chapter titled \Communication Skills\ is almost word‑to‑word reproduced. The plaintiff, present in Court, submits that seventy‑seven pages of his book have been reproduced verbatim in the impugned second book., Before proceeding further, the Court directs that the three authors of the impugned books against which the infringement is complained, namely Defendant No. 8, Mr. Sachin Gupta; Defendant No. 9, Ms. Bhoomi Gupta; and Defendant No. 7, Ms. Preeti Arora, be present in Court on the next date of hearing., The Interim Application 11777/2023 under Order XXXI Rule 4 of the Code of Civil Procedure shall be considered thereafter., If any infringing copies of the plaintiff's book Essentials of Artificial Intelligence are found to be sold on any e‑commerce platform, the plaintiff is free to approach such platforms to take down the infringing books. Upon receiving such a notice from the plaintiff, all e‑commerce platforms, as intermediaries, shall comply and remove the plaintiff's book within seventy‑two hours in compliance with the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021., The plaintiff shall send a copy of the order dated 25 May 2023, along with the notice that is sent to the e‑commerce platforms., The matter is listed for hearing on 18 October 2023.
id_132	0	The instant petition has been filed by the petitioner under Section 482 of the Code of Criminal Procedure, 1973 for quashing of order dated 23 May 2023 passed by learned Additional Sessions Judge, Family and Sexual Trafficking Court, POCSO, North‑West, Rohini Courts, New Delhi (Trial Court) in Sessions Case 53715/2016 arising out of FIR bearing no. 669/2016, registered at Police Station Keshav Puram, Delhi for offences punishable under Sections 376 and 506 of the Indian Penal Code and Section 6 of the Protection of Children from Sexual Offences Act, 2012., The facts of the case are that the petitioner/accused allegedly committed rape upon respondent no. 2, the prosecutrix, after which an FIR was registered on 20 October 2016. The examination‑in‑chief and cross‑examination of the prosecutrix and of the complainant, i.e., her mother, concluded on 20 October 2018. On 30 August 2019 the doctor who had proved the contents of the medical laboratory report was examined and discharged. The petitioner moved an application under Section 311 of the Code of Criminal Procedure seeking directions to recall the prosecutrix and her mother on the ground that the earlier cross‑examination was conducted merely as a formality without addressing the charge against the petitioner/accused. The learned Trial Court dismissed the application by order dated 23 May 2023. Aggrieved, the petitioner approached the Delhi High Court., Learned counsel for the petitioner states that a bare perusal of the cross‑examination of the prosecutrix would reveal that it was conducted in a routine manner, neglecting the gravity of the allegations because no questions were put to her regarding the mode and manner of the alleged incident, nor to ascertain whether the incident actually took place or was a fabricated story by the complainant’s mother. It is also submitted that the mother of the prosecutrix should be cross‑examined again to determine how and when she learned that her daughter had gone missing and how she searched for the prosecutrix. Further, it is argued that the medical examination should be revisited to ascertain any injuries or symptoms on the body of the prosecutrix, and that the doctor, who is PW‑9, be called for cross‑examination., Learned Additional Public Prosecutor for the State, on the other hand, argues that the witnesses were thoroughly examined and that the prosecutrix was only seven years old at the time of the incident and nine years old when examined, and therefore cannot be subjected to the trauma of re‑living the entire incident., The Delhi High Court has heard arguments on behalf of both sides and perused the material available on record., After reviewing the case file, the Delhi High Court is of the opinion that the FIR specifically alleges that the petitioner/accused took the minor victim to the roof of a building and committed sexual assault. The petitioner had moved an application before the learned Trial Court under Section 311 of the Code of Criminal Procedure for recalling the prosecutrix, the complainant (the mother of the prosecutrix) and PW‑9, the doctor who medically examined the victim., The operative portion of the order impugned before the Delhi High Court reads as follows: By way of the present application, the recalling of PW‑4 (victim) and PW‑5 (mother of the victim) is being sought on the ground that the earlier cross‑examination was conducted merely as a formality and no questions were put to the witnesses to test the veracity of the alleged incident. As per record, the victim was seven years old at the time of the incident and nine years old when examined. Almost six and a half years have elapsed from the date of the incident and about five years have elapsed since the victim was cross‑examined at length on 30 May 2018 on behalf of the accused. The application is vague and does not specify any aspect on which the victim was not cross‑examined. It cannot be overlooked that when witnesses are called for evidence they relive the entire incident and, based on vague averments, the victim cannot be recalled as it would likely cause further trauma. The application is also highly belated. Although paragraph 5 of the application states that it was moved at the first available opportunity, the victim and her mother had been examined in the year 2018‑19, a fresh vakalatnama on behalf of the accused was filed in July 2021 and counsel have been appearing regularly since March 2022. Six witnesses have been examined but no application was filed until now, when the matter was listed for recording the statement of the accused. The application appears to have been filed only to delay the present matter, which pertains to the year 2016. The reliance of counsel on the judgment of the Honorable High Court of Delhi in Vinod Rawat is misplaced and distinguishable on the facts, as in that case one witness (the victim) had already been cross‑examined and the other witness was not cross‑examined despite opportunity, whereas in the present case the witnesses sought to be recalled have been extensively cross‑examined on behalf of the accused. While a fair trial demands that the opportunity to defend the accused be afforded, if the cross‑examination has already been concluded extensively, it would be contrary to the mandate of law to re‑summon the witness, especially in a case of sexual offence, as observed by the Honorable High Court of Delhi. In these facts and circumstances, no ground is made out for recalling PW‑4 and PW‑5 at this belated stage. The application is dismissed and disposed of accordingly. The matter is put up for recording the statement of the accused under Section 313 of the Code of Criminal Procedure on 17 July 2023., Section 33(5) of the Protection of Children from Sexual Offences Act reads as follows: (5) The Special Court shall ensure that the child is not called repeatedly to testify in the court., The argument of learned counsel for the petitioner that the bar under Section 33(5) of the Protection of Children from Sexual Offences Act, 2012 is not absolute and that the court has discretion to recall the witness in the interest of justice has been considered by the Delhi High Court. After considering the same as well as the case law cited, the court holds that the facts and circumstances of each case are different and a court cannot decide all cases on the basis of any standard‑format order. The facts of Vinod Rawat v. State, 2022 SCC OnLine Del 2989, a decision rendered by this Bench, are distinguishable from the present case and this aspect has been dealt with in detail by the learned Trial Court., While the bar under Section 33(5) of the Protection of Children from Sexual Offences Act may not be absolute and a balance of rights needs to be maintained under that provision and Section 311 of the Code of Criminal Procedure, the court’s discretion in exercising its power to re‑summon a witness for cross‑examination must be exercised with circumspection, caution and utmost sensitivity. The crucial word in Section 33(5) is ‘repeatedly’. This provision must be interpreted to balance the right of the accused under Section 311 of the Code of Criminal Procedure with the right of the child to a fair trial, depending on the facts and circumstances of each case., The victim in this case was only seven years of age at the time of the incident in 2016. When she was examined in court, she was nine years of age in 2018., A perusal of the record reveals that six years have passed since the testimonies of the prosecutrix and her mother were recorded before the learned Trial Court. The child victim has relived the trauma of a perverse sexual assault at the tender age of seven, first during the incident, then while recording her statement before the police and under Section 164 of the Code of Criminal Procedure before the magistrate, and subsequently before the learned Trial Court while recording her evidence., The victim, being only seven years old and having undergone repeated trauma on several occasions, cannot be directed to appear again after six years to depose about the same incident merely because the previous counsel’s cross‑examination was not found sufficient by the new counsel., The contentions of learned counsel for the petitioner that the Protection of Children from Sexual Offences Act is a gender‑based legislation and is being misused are inappropriate and misleading. The Act is not gender‑based; it is neutral with respect to victim children. Moreover, arguing that the legislation is being misused by alleging that the complainant kept a gun on her minor daughter’s shoulder to coerce the applicant to repay a friendly loan taken from her husband, as mentioned in the petition, is found to be most insensitive by this Court., Any law, whether gender‑based or not, has the potential of being misused. However, the possibility of misuse does not permit the legislature to stop enacting laws nor the judiciary to stop applying them, since they are enacted to curb the larger menace of such offences and to deliver justice to genuine victims., The Delhi High Court also notes that a change of counsel cannot be a ground for re‑summoning witnesses, especially when there is a specific bar intended by the legislature, as in the present case, by virtue of Section 33(5) of the Protection of Children from Sexual Offences Act., The Honorable Apex Court in State (NCT of Delhi) v. Shiv Kumar Yadav, (2016) 2 SCC 402, emphasized that fairness of a trial must be seen not only from the perspective of the accused but also of the victim and society. It held that mere incompetence of a previous counsel cannot be a ground to recall a witness for examination. Relevant observations are as follows: It is well settled that fairness of trial has to be seen not only from the point of view of the accused but also from the point of view of the victim and society. In the name of fair trial, the system cannot be held to ransom. The accused is entitled to be represented by counsel of his choice, to be provided all relevant documents, to cross‑examine the prosecution witnesses and to lead evidence in his defence. While advancement of justice remains the prime object of law, it cannot be understood to mean that recall can be allowed for reasons related to mere convenience. It is presumed that counsel conducting a case is competent, particularly when appointed by choice of a litigant. The principle that a retrial must follow on every change of counsel can have serious consequences on conduct of trials and the criminal justice system. Witnesses cannot be expected to face the hardship of appearing in court repeatedly, particularly in sensitive cases such as the present one. It can result in undue hardship for victims of heinous crimes if they are required to appear repeatedly for cross‑examination., In the present case, the Delhi High Court has reviewed the testimony of PW‑4, PW‑5 and PW‑9. The minor child/prosecutrix was cross‑examined at length, with her cross‑examination extending to almost three pages, covering every aspect of time, manner and place of the offence. PW‑5, the mother of the prosecutrix, was also cross‑examined at length on 17 August 2018 (three pages) and again on 29 January 2019 (two pages), and was questioned on almost every aspect. PW‑9, the doctor, has deposed and proved the medical laboratory report in its entirety. Therefore, the argument that one or two questions were not asked and that the witnesses should be recalled does not find favour with this Court., The trial in this case has already been prolonged to seven years and the application under Section 311 of the Code of Criminal Procedure was filed after almost six years of recording the testimony of the concerned witnesses. During those six years, while other witnesses were being recorded, there was no indication from the petitioner/accused to recall the present witnesses. The present revision petition and the application under Section 311 appear to be an attempt to delay the trial, which is already delayed., Learned counsel for the petitioner also argued that if the present petition is not allowed, it would amount to a violation of the right to a fair trial of the accused/petitioner., While the Delhi High Court cannot dispute that the right to a fair trial is a crucial and precious right of the accused, the complainant’s right to a fair trial also requires that they not be unnecessarily harassed, especially in cases of sexual assault of children of tender age. At times, victims may not report such offences for fear of continuous court visits, embarrassment and traumatic cross‑examination. Had the record shown that the witnesses’ cross‑examination consisted of only a few formal questions and not of the incident, a different decision might have been taken. However, in the present case, the cross‑examination was conducted at length and all relevant aspects were covered by the previous counsel for the petitioner. While the accused must be granted a fair trial, this does not mean granting unjustified repeated opportunities for cross‑examination in every case., The contention that denying the present application would lead to a conviction is without merit. The previous counsel has already cross‑examined the witnesses at length, and apprehension or fear of the accused that the cross‑examination did not yield helpful answers cannot be a ground to recall the witnesses after six years., Balancing the right of the accused to a fair trial with the intent of the legislation, the courts are duty‑bound to remain sensitive to the plight of the seven‑year‑old sexual assault victim. She and her mother cannot be recalled to relive the entire trauma merely because the new counsel is dissatisfied with the elaborate cross‑examination of these witnesses. The court also has a duty to ensure an expeditious and fair trial, preventing misuse of applications intended to delay proceedings before the learned Trial Court., In the given facts and circumstances, no ground is made out for recalling the witnesses at this belated stage. Accordingly, the present petition stands dismissed as devoid of merit. The learned Trial Court is directed to ensure that the trial is concluded expeditiously., A copy of this judgment shall be forwarded to the learned Trial Court by the Registry for necessary information.
id_1320	0	M.Cr. C. No. 40839/2021 Reserved on 06 September 2022 Pronounced on 19 December 2022 This petition having been heard and reserved for orders, coming on for pronouncement this day, Honourable Justice Satyendra Kumar Singh pronounced the following: The petition under Section 482 of the Criminal Procedure Code has been preferred for quashment of FIR bearing Crime No. 686/2018, registered at police station Bhanvarkuan, District Indore against the applicant for offences punishable under Sections 505 and 295-A of the Indian Penal Code along with Section 67 of the Information Technology Act, 2000, the consequent charge‑sheet and also subsequent criminal proceedings pending against him in Revisionary Criminal Trial No. 11307/2019 before the Judicial Magistrate First Class Court, Indore., Factual matrix giving rise to the instant case is that complainant Ajay made a written complaint on 10 October 2018 to the Station House Officer, Police Station Bhanvarkuan, District Indore, to the effect that the holder of mobile number 6265349065 posted an image on WhatsApp groups and Facebook page showing a Pre Navratri Weekend Offer – Condoms (pack of three) / Pregnancy Test Kit at INR zero, offering a free‑of‑cost condom pack and pregnancy kit from 06 October 2018 to 07 October 2018. In the background of the said image a couple dancing Garba is shown which hurts the religious sentiments of the people. On the basis of the complaint, FIR bearing Crime No. 686/2018 was registered for the aforesaid offences against unknown persons. During investigation it was found that the applicant, being holder of the said mobile number, posted the alleged image and hurt the religious feelings and sentiments of the complainant and other followers of the Hindu religion. The prosecution sanction was obtained and after completion of investigation, a charge‑sheet was filed against the applicant before the Judicial Magistrate First Class Court, Indore. Hence the instant petition under Section 482 of the Criminal Procedure Code has been filed by the applicant for quashment of the FIR, the consequent charge‑sheet and also subsequent criminal proceedings., Learned counsel for the applicant submits that the applicant himself belongs to the Hindu community, is a religious man and would not do anything to hurt the religious feelings of the Hindu community or to incite hatred. He is a pharmacy professional who was previously employed as the Area Manager and later promoted as Regional Manager in Eris Life Sciences Private Limited at Indore for around seven years. Presently he is running his business of pharmacy in the name and style of Morphus Pharmaceuticals Private Limited at Indore. Being in the pharmacy profession for many years, without any criminal intention, he in good faith published such an image offering to lure customers during the Garba period as various condom companies themselves came up with promotional offers. A bare perusal of the said image does not show any intention of the applicant to create or promote any feelings of enmity, hatred or ill‑will between different religious groups, nor does it insult any religion or outrage the religious feelings of any class. As soon as the applicant became aware of the registration of the FIR, he immediately removed the image from the social media namely the Facebook page “Feel Free Indore” and also from WhatsApp groups and apologized publicly stating that there was no intention of hurting any religious feelings or religion and that such act shall not be repeated. Since no case is made out against the applicant, the proceedings against him are frivolous and mala fide. Hence the FIR, charge‑sheet and the subsequent criminal proceedings against the applicant should be quashed. To bolster his submissions, counsel has placed reliance on the order dated 29 November 2019 passed by the Supreme Court of India in the case of Salman Khan versus State of Gujarat and others (Writ Petition (Criminal) No. 270/2018)., Learned counsel for the State has opposed the prayer and submits that admittedly the applicant posted the disputed image on social media namely Facebook and WhatsApp groups. It is apparent from the image posted by the applicant that its contents hurt the religious feelings of the Hindu community. Such type of offer during the Navratri period itself shows criminal intention of the applicant. Therefore, at this stage the prayer made by the applicant for quashment of the FIR, the consequent charge‑sheet and also subsequent criminal proceedings pending against him are not acceptable and the petition is liable to be dismissed., Heard learned counsel for the parties at length and perused the record., Upon perusal of the record, it is undisputed that the applicant, being holder of mobile number 6265349065, posted an image on his WhatsApp groups and Facebook page “Feel Free Indore” showing a Pre Navratri Weekend Offer – Condoms (pack of three) / Pregnancy Test Kit at zero cost as a special offer from 06 October 2018 to 07 October 2018. It is also apparent that the said image had a couple dancing Garba in the background., Regarding the issue whether the applicant posted the aforesaid image on social media with an intent to wound the religious feelings of any person or with an intent to incite any community to commit any offence against any other community, the applicant, being a pharmacy professional, is running a business of pharmacy in the name and style of Morphus Pharmaceuticals Private Limited at Indore. Since there is nothing on record except the said post which indicates such intention, and considering the fact that he himself belongs to the Hindu community and posted the image from his own mobile number without concealing his identity, it appears that his intention was just to promote the product of his company and not to hurt the religious feelings and sentiments of any community. In this regard, the order passed by the Supreme Court of India in the case of Salman Khan (supra) can also be relied upon, wherein the FIR lodged against Salman Khan for releasing his movie titled “Navratri” during the Navratri period was quashed., The essential ingredients of Section 295-A of the Indian Penal Code, i.e., deliberate and malicious intention of outraging the religious feelings or insulting the religion or religious beliefs of a class, and the essential ingredients of Section 505 of the Indian Penal Code, i.e., intent to incite any class or community to commit any offence, are not fulfilled. Hence the aforesaid offence cannot be said to be made out against the applicant., Upon perusal of the alleged post, it is apparent that the contents are not obscene; therefore the ingredients of Section 67 of the Information Technology Act are also not fulfilled. In view of the above, allowing the prosecution to continue the case would amount to abuse of the process of the High Court of Madhya Pradesh, Indore Bench, therefore it is necessary to quash the proceedings in order to serve the ends of justice. Thus this petition is allowed. The FIR bearing Crime No. 686/2018, registered at police station Bhanvarkuan, District Indore against the applicant for offences punishable under Sections 295-A and 505 of the Indian Penal Code along with Section 67 of the Information Technology Act, the consequent charge‑sheet and also subsequent criminal proceedings pending against him in Revisionary Criminal Trial No. 11307/2019 before the Judicial Magistrate First Class Court, Indore are hereby quashed. The applicant is discharged from the charges levelled against him. His bail bond, if any, stands discharged., Accordingly, the petition filed under Section 482 of the Criminal Procedure Code stands disposed of as indicated above., A copy of this order shall be sent to the concerned court for information and necessary compliance/action without delay. Certified copy as per rules.
id_1323	0	December 7, 2023 Court No. 14 Writ Petition (Civil) Act 27100 of 2023 Sankar Ghosh and others versus the State of West Bengal and others. Mr. Rajdeep Mazumder, Mr. Moyukh Mukherjee, Mr. Anish Kumar Mukherjee, Ms. Sagnika Banerjee for the petitioners. Mr. Kishore Dutta, Mr. Amitesh Banerjee, Mr. Rudrajit Sarkar, Ms. Amrita Panja Moulick for the State., Supplementary affidavit filed by the petitioners is taken on record. A copy of the same is handed over to learned advocate for the State. Learned counsel for the petitioners submits as follows., There was an alternative exit/entry to the Assembly. Therefore, no wrongful restraint can be alleged. On this, reliance is placed on a decision of the Division Bench of the Supreme Court of India in Sankar Chandra Ghose versus Roopraj S. Bhansally, reported at 1981 SCC Online Cal 65. Reading of the FIR shows that the dharna in question was organized by the ruling dispensation as a political party, not as an activity of the Government. The sequence of events was clear. First, their dharna started. Then allegedly the petitioners and other members of the opposition political party started shouting slogans. After that, they also sat at a gate of the Assembly and started protesting. At that time, in the gathering of the ruling political dispensation, the National Anthem was sung. Singing of the National Anthem in such a gathering was indeed indecorous as the adverse side was shouting slogans nearby. Video clippings of the dharna organised by the ruling political dispensation show slogans of the worst kind made by them. Singing the National Anthem in such a gathering violated the order relating to the National Anthem of India and thus becomes punishable under the Special Act. The gathering of the petitioners was a totally different one meant for a different purpose and the participants had already started their activities. In fact, the national anthem singing was hardly audible to the other group. Singing of the National Anthem cannot be used as a ploy to deter the petitioners from continuing with such activities or to put them in further peril of getting penalised under the Special Act. Reliance is placed on the decision of Salib alias Shalu alias Salim versus State of Uttar Pradesh and others, reported at 2023 SCC Online SC 947., As mentioned in the supplementary affidavit, on the next date a similar case was again started against some other MLAs. No prima facie case is made out. A plain reading of the FIR shows that the filing of the same was evidently attended with malafide intent. Learned senior counsel appearing on behalf of the State submits that a prima facie case is clearly made out from a plain reading of the FIR and the materials collected thus far. At this nascent stage of investigation, no interference is warranted. In Lalita Kumari's case, the Supreme Court of India laid down the ratio that if a cognizable offence is made out, the police would be obliged to register an FIR. Here, as a cognizable case was made out, the police were justified in registering an FIR. Reliance is placed on the case of State of Haryana and others versus Bhajan Lal, reported at 1992 Supp (1) SCC 335, and it is contended that the power to quash a proceeding should be exercised only with great circumspection and in the rarest of cases. The truthfulness of the allegations cannot be tested now. Reliance is placed on a judgment in Rajiv Thapar and others versus Madan Lal Kapoor. As far as the subsequent case filed on the next date is concerned, the same relates to different incidents on a subsequent date. Allegations as alleged by the petitioners have not been pleaded sufficiently in the writ petition. It is also trite law that only if some of the ingredients of an offence are not satisfied, quashing cannot be affected. On this, reliance is placed on the judgments in the case of T. Jayarajan versus P.R. Muhammed and others, reported at 1999 SCC Criminal 401 and in the case of Taramani Parakh versus State of Madhya Pradesh and others, reported at (2015) 11 SCC 260., The State wants to use an affidavit before the matter can be finally decided. I have heard the learned advocates appearing on behalf of the parties and have perused the video footages produced on behalf of the State. The FIR clearly sets out a sequence of events. It is debatable whether, in the midst of slogan shouting by either of the groups, singing of the National Anthem was in conformity with the decorum expected in the order pertaining to the use of the National Anthem and the Special Act. It appears that the two gatherings were at some distance from each other and the gathering of the petitioners was behind two big pillars/gate. Prima facie it appears that two different groups were demonstrating and exercising their rights regarding two different issues at some distance at the relevant point. Therefore, it is also to be decided whether the norms set by and requirements of one gathering would automatically bind those in the other gathering. It has been submitted on behalf of the State that several statements of witnesses have already been recorded and, as produced in Court, relevant video footages have also been collected. The matter needs to be heard at length. Let the respondents file affidavit opposition within a fortnight from this date. Reply, if any, be filed within a fortnight thereafter. Let the matter appear for hearing on 10 January 2024 as a specially fixed matter at 2:30 p.m. The impugned proceedings shall remain stayed till 17 January 2024. Urgent certified copies of this order, if applied for, be supplied to the parties upon compliance of all requisite formalities.
id_1324	0	All India Gaming Federation, a society registered under the Societies Registration Act, 1860, represented by its General Secretary and Authorized Signatory Sunil Krishnamurthy, having its registered office at Tiffany, 1st Floor, Hirandandani Road, Hiranandani Estate, Ghodbunder Road, Patlipada, Thane (West), Maharashtra – 400607, versus the State of Tamil Nadu through the Chief Secretary, Secretariat, Fort St. George, Chennai – 600009; the State of Tamil Nadu, Department of Home, through the Principal Secretary, Secretariat, Fort St. George, Chennai – 600009; the State of Tamil Nadu, Department of Law, through the Principal Secretary, Secretariat, Fort St. George, Chennai – 600009; and the Director General of Police, State of Tamil Nadu, Office of the Director General, Kamarajar Salai, Chennai – 600004., Gameskraft Technologies Private Limited, 1st and 2nd floor, Ibis Hotel, 26/1, Hosur Road, Bommanahalli, Bangalore – 560068, represented by its Director Vikas Taneja, versus the State of Tamil Nadu through the Secretary to the Government Law Department, Secretariat, Chennai – 600009., Play Games 24x7 Private Limited, a company incorporated under the Companies Act, 1956, represented by its Authorized Representative Sameer Chugh, having its registered office at 5th Floor, Central Wing (B), Tower – 4, Nesco IT Park, Nesco Centre, Western Express Highway, Goregaon (East), Mumbai – 400063, and Bhavin Pandya, son of Shri Kaushik Pandya, through his Power of Attorney holder Sameer Chugh, having the same registered office, versus the State of Tamil Nadu through the Chief Secretary, Secretariat, Fort St. George, Chennai – 600001; the State of Tamil Nadu, Department of Home, through the Principal Secretary, Secretariat, Fort St. George, Chennai – 600001; the State of Tamil Nadu, Department of Law, through the Principal Secretary, Secretariat, Fort St. George, Chennai – 600001; the Director General of Police, State of Tamil Nadu, Office of the Director General, Kamarajar Salai, Chennai – 600004; and the Union of India through the Ministry of Electronics and Information Technology, Electronics Niketan, 6, CGO Complex, Lodhi Road, New Delhi – 110003., Head Digital Works Private Limited, registered office at 1st Floor, Express Building, 9-10, Bahadur Shah Zafar Marg, New Delhi – 110002, corporate office at 8th Floor, Atria Block, The‑V, Plot No. 17, Software Units Layout, Madhapur, Hyderabad, Telangana – 500081, through its Authorized Representative Aayush Raj, and Deepak Gullapalli, son of Shri Ram Prasad, through his Power of Attorney holder Aayush Raj of Head Digital Works Private Limited, 8th Floor, Atria Block, The‑V, Plot No. 17, Software Units Layout, Madhapur, Hyderabad, Telangana – 500081, versus the State of Tamil Nadu through the Chief Secretary, Secretariat, Fort St. George, Chennai – 600001; the State of Tamil Nadu, Department of Home, through the Principal Secretary, Secretariat, Fort St. George, Chennai – 600001; the State of Tamil Nadu, Department of Law, through the Principal Secretary, Secretariat, Fort St. George, Chennai – 600001; the Director General of Police, State of Tamil Nadu, Office of the Director General, Kamarajar Salai, Chennai – 600004; and the Union of India through the Ministry of Electronics and Information Technology, Electronics Niketan, 6, CGO Complex, Lodhi Road, New Delhi – 110003., Junglee Games India Private Limited, a company incorporated under the Companies Act, 1956, having its registered office at 2nd Floor, 55, Lane‑2, Westend Marg, New Delhi – 110030 and corporate office at 5th Floor, Tower A, Building 10, DLF City, DLF Phase 2, Sector 24, Gurugram, Haryana – 122002, and Ankush Gera, son of Shri Subhash Chander Gera, through his Power of Attorney holder Kapil Chaudhary, 2nd Floor, 55, Lane‑2, Westend Marg, New Delhi – 110030, versus the State of Tamil Nadu through the Chief Secretary, Secretariat, Fort St. George, Chennai – 600001; the State of Tamil Nadu, Department of Home, through the Principal Secretary, Secretariat, Fort St. George, Chennai – 600001; the State of Tamil Nadu, Department of Law, through the Principal Secretary, Secretariat, Fort St. George, Chennai – 600001; the Director General of Police, State of Tamil Nadu, Office of the Director General, Kamarajar Salai, Chennai – 600004; and the Union of India through the Ministry of Electronics and Information Technology, Electronics Niketan, 66, CGO Complex, Lodhi Road, New Delhi – 110003., Petition under Article 226 of the Constitution of India seeking a writ of declaration to declare the Tamil Nadu Prohibition of Online Gambling and Regulation of Online Games Act, 2022 enacted by the first respondent as unconstitutional as it lacks legislative competence and/or violates the Constitution of India, including the fundamental rights enshrined under Articles 14, 19 and 21., Petition under Article 226 of the Constitution of India seeking a writ of declaration declaring that the Tamil Nadu Prohibition of Online Gambling and Regulation of Online Games Act, 2022 (Act No. 9 of 2023) is ultra vires the Constitution of India., Petition under Article 226 of the Constitution of India seeking a writ of declaration declaring Sections 2(i) read with Sections 7, 8, 9, 10, 23 and the Schedule contained in Act No. 9 of 2023 dated 7 April 2023 as arbitrary, void, illegal, and unconstitutional, insofar as the same applies to rummy and poker when played online for money or other stakes., Petition under Article 226 of the Constitution of India seeking a writ of declaration declaring Sections 2(i) read with Sections 7, 8, 9, 10, 23 and the Schedule contained in Act No. 9 of 2023 dated 7 April 2023 as arbitrary, void, illegal, and unconstitutional, insofar as the same applies to rummy and poker when played online for money or other stakes., Petition under Article 226 of the Constitution of India seeking a writ of declaration declaring Sections 2(i) read with Sections 7, 8, 9, 10, 23 and the Schedule contained in Act No. 9 of 2023 dated 7 April 2023, the Tamil Nadu Prohibition of Online Gambling and Regulation of Online Games Act, 2022 as arbitrary, void, illegal, and unconstitutional, insofar as the same applies to rummy and poker when played online for money or other stakes., For the petitioner in W.P.No.13203 of 2023: Mr. Sajan Poovaiya, Senior Counsel; Mr. V. Ragavachari, Senior Counsel; Ms. Deepika Mulari; Mr. Pradeep Nayak; Mr. Samkeeth Vittal; Mr. Pratiks Bhadri Narayan S; Ms. Shreya Narayanan. For the petitioners in W.P.No.13593 of 2023: Dr. Abhishek Manu Singhvi, Senior Counsel assisted by Mr. Suhaan Mukherji; Mr. Harsh Hiroo Gursahani; Mr. Nikhil Parikshith; Mr. Abhishek Manchanda; Mr. Sayandeep Pahari; Mr. Arun Karthik Mohan; Ms. Ashwini Vaidialingam. For the petitioners in W.P.No.13720 of 2023: Mr. C. Manishankar, Senior Counsel for Mr. R. S. Diwaagar. For the petitioners in W.P.No.13722 of 2023: Mr. Satish Parasaran, Senior Counsel for Mr. R. S. Diwaagar. For the petitioners in W.P.No.14704 of 2023: Mr. Mukul Rohatgi, Senior Counsel for Mr. R. S. Diwaagar; Mr. Akhil Anand; Mr. Himanshu Vij; Mr. Bharadwaj Ramasubramanian; Mr. Durga Bose Gandham. For the first respondent in W.P.No.13203 and 14704 of 2023: Mr. Kapil Sibal, Senior Counsel assisted by Ms. Aparajita Jamwal. For the second respondent in W.P.No.13203, 14704 of 2023 and the sole respondent in W.P.No.13593 of 2023: Mr. R. Shunmugasundaram, Advocate General assisted by Mr. P. Muthukumar, State Government Pleader, Ms. A. G. Shakeena and Mr. B. Thiyagarajan. For the third respondent in W.P.No.13203, 14704 of 2023: Mr. Amit Anand Tiwari, Additional Advocate General, Supreme Court, assisted by Ms. Devyani Gupta and Mr. Amartya A. Sharan. For the fourth respondent in W.P.No.13203, 14704 of 2023: Mr. P. Muthukumar, State Government Pleader assisted by Mrs. R. Anitha, Special Government Pleader; Additional Government Pleader and Mr. K. Karthik Jagannath, Government Advocate., The order of the Hon'ble High Court of Madras is made by the Hon'ble Chief Justice. All these writ petitions involve a common question of law and are based on a similar set of facts; to avoid duplication, they are decided by this common judgment., The petitioners assail the constitutional validity of the Tamil Nadu Prohibition of Online Gambling and Regulation of Online Games Act, 2022 (hereinafter referred to as the Act of 2022 or the impugned Act)., The petitioner in W.P.No.13203 of 2023 is a society registered under the Societies Registration Act, 1860. It claims to have been established with the objective of protecting consumers of online skill gaming and representing the interests of various online skill gaming companies, including those offering skill‑based games/platforms at various forums. The members of the petitioner society offer games such as poker, chess, rummy, fantasy sports, casual games and e‑sports., The petitioner in W.P.No.14704 of 2023 claims to be a company engaged in the business of developing and offering online games of skill and other free games in India and abroad. It is currently engaged only in designing and developing software relating to games of skill, deploying and maintaining an online gaming website and mobile applications based on games of skill for the Indian market., The petitioner in W.P.No.13593 of 2023 is a company incorporated under the Companies Act, 2013. It is in the business of operating online gaming platforms offering the game of rummy to its users across India, through its website and mobile applications called Rummyculture, Gamezy and Playship, which comprise money‑based and free variants of the game rummy., The first petitioner in W.P.No.13722 of 2023 claims to be a company registered under the Companies Act, 2013 and engaged in the business of developing and offering online games of skill in India. The petitioner contends that it is involved in designing and developing software related to games of skill, deploying and maintaining an online gaming website and mobile applications based on games of skill for the Indian market via the internet., The first petitioner company in W.P.No.13720 of 2023 is a private limited company providing online web and mobile based platforms and offering competitive games of rummy in three popular formats: tournaments, points rummy and pool rummy., Senior Counsel for the petitioners, namely Dr. Abhishek Manu Singhvi (W.P.No.13593), Mr. Mukul Rohatgi (W.P.No.14704), Mr. Sajan Poovaiya and Mr. V. Ragavachari (W.P.No.13203), Mr. C. Manishankar (W.P.No.13720), and Mr. Satish Parasaran (W.P.No.13722), put forth the case of the petitioners. The contour of their submissions can be summed up as follows., The impugned Act is solely based on the report submitted by the Committee under the chairmanship of Justice K. Chandru (Retd.). The report arbitrarily categorised games of skill, i.e., online rummy and online poker, as games of chance. The report is directly contrary to the law settled by the Division Bench of this Court in Junglee Games India Private Limited v. State of Tamil Nadu and to the Apex Court in a series of judgments. The report fails to substantiate its findings or the alleged impact of online games. Although the report was filed by the State of Andhra Pradesh before the Andhra Pradesh High Court in W.P.No.19659 of 2020, it was not made available in the public domain. The Committee did not have a single expert on online games or a representative from the industry as a member., The terms of reference of the Committee show that the whole intent was predetermined, namely to ban online games of rummy and poker despite being a legally permissible business activity protected under Article 19(1)(g) of the Constitution of India. The title of the report, 'Report of the Committee to recommend the desirability of legislation to ban online card games including rummy', indicates that the Committee was formed to submit a pre‑decided report on prohibiting online rummy by classifying it as gambling., The Committee met only on two occasions, on 13 June 2022 and on 16 June 2022, to discuss the notes of the Committee members, which appear to have been prepared within a short period. The report arbitrarily, incorrectly and unjustifiably equated skill games played online for money with gambling and betting. It refers to the findings of the Apex Court and the Division Bench of this Court, as well as the Karnataka High Court and Kerala High Court, summarising correctly that skill gaming cannot be banned but may be regulated. However, the report bifurcates playing online rummy into 'playing' and 'betting' without logical reasoning, contrary to the rulings of the Apex Court, this Court and other High Courts., The Committee has not appreciated the functioning of online rummy, especially the limited role of the Random Number Generator software. It incorrectly alleges that the game can be manipulated by the use of bots, whereas no bots are employed. The report erroneously distinguishes a vast difference between rummy and poker when played physically and online. It further suggests that online gaming portals utilise digital currency, but the petitioners accept only legally recognised banking channels such as net banking, debit cards, wallets and UPI., The report refers to the 246th Law Commission Report but conveniently ignores Section 3 of that report, wherein it is held that games of skill are not gambling activities. The report cannot be placed on a higher pedestal and lacks appropriate value. It suggests that suicides are committed by students, but no empirical data exists to substantiate this claim. Suicides are unfortunate, however, they are not proven to be caused by online games., Section 2(i) of the Act of 2022 defines online gambling to include wagering or betting. Section 7(1) prohibits online gambling. Sections 10(5)(a) and 14(1)(a) restrain local and non‑local online game providers from providing online gambling services. These provisions, which form the bedrock of the Act of 2022, are contrary to the dictum of the Supreme Court and are ultra vires the competence of the respondent State., The Government of India, vide notification dated 23 December 2022, amended the allocation of Business Rules and designated the Ministry of Electronics and Information Technology as the nodal ministry for regulation of online games. Entry 31 read with Entry 14, List I (Union List) of the Seventh Schedule of the Constitution of India deals with posts, telegraphs, telephones, wireless, broadcasting and other similar forms of communication. This is a Union subject and the State of Tamil Nadu has no power to legislate in respect of the same., The Ministry of Electronics and Information Technology has issued the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023 (hereinafter referred to as the I.T. Amendment Rules). The I.T. Amendment Rules recognise the term online gaming intermediary and define it as an intermediary that enables users of its computer resources to access online games. The rules place the online gaming intermediary on par with significant social media intermediaries and impose stringent compliance requirements., The Ministry of Electronics and Information Technology has filed a memo stating that three applications have been received for the formation of a Self‑Regulatory Body. The petitioners, along with other online gaming companies, have already incorporated a company under Section 8 of the Companies Act, 2013 for the purpose of forming a Self‑Regulatory Body., The State does not possess legislative competence to enact the impugned Act. Under Entry 34, List II (State List) of Schedule VII of the Constitution of India, the legislature may legislate on betting and gambling, which includes only games of chance and not games of skill. Any game wherein skill predominates over chance falls outside the ambit of betting and gambling and cannot be legislated upon by the State., The competitions which involve substantial skill are not gambling activities. Reliance is placed on the Apex Court judgment in K. R. Lakshmanan v. State of Tamil Nadu, wherein, after analysing earlier constitutional bench judgments in The State of Bombay v. R. M. D. Chamarbaugwala and R. M. D. Chamarbaugwala v. Union of India, it was observed that gaming means the act or practice of gambling on a game of chance where chance is the controlling factor. Reliance is also placed on the Karnataka High Court judgment in All India Gaming Federation v. State of Karnataka., The State's reliance on the judgment of the Apex Court in M. J. Sivani & Ors. v. State of Karnataka & Ors. is misplaced. That judgment concerns rigging of video‑game machines at video‑game parlours, which is distinct from the online games offered by the petitioners. Although the State contends that this Court has not dealt with the Sivani judgment while delivering the Junglee Games judgment, this Court has specifically referred to the Sivani case in Junglee Games., The State's reliance on the last four lines of the judgment of the Apex Court in State of Andhra Pradesh v. K. Satyanarayana & Ors. is misplaced. The judgment in Satyanarayana's case was clarified by a three‑judge bench of the Apex Court in K. R. Lakshmanan that clubs have the right to make profits in conducting a game of skill. A larger bench of the Apex Court has clarified the position taken in those lines., The game of poker is also a game of skill. This is observed by this Court in Junglee Games and by the Karnataka High Court and Kerala High Court. The 276th Law Commission of India report, titled 'Legal Framework: Gambling and Sports Betting including Cricket in India', at paragraphs 3.34 and 3.35, recognises poker as a game of skill, since skilful players always win over less skilled or novice players. The United States District Court for the Eastern District of New York, in U.S.A. v. Lawrence DiCristina, accepted that poker is a game of skill. Although the finding was reversed on appeal, the appellate court left the skill finding undisturbed. The Supreme Court of Israel in Amit Amishvilli Rafi v. Assessing Officer also held that poker is a game of skill., The judgment of the learned Single Judge of the Gujarat High Court in Dominance Games Pvt. Ltd. v. State of Gujarat is erroneous, as it is based on the fact that the initial distribution of cards in the game is not within the control of the player. The Gujarat High Court failed to consider that other card games, including rummy and bridge, also involve initial distribution of cards and are held to be games of skill by the Apex Court in K. Satyanarayana. The Gujarat High Court relied upon the judgment in R v. Kelly from the Courts of Appeal in the United Kingdom, which is not applicable in India as it follows a different test. Moreover, whether online poker is permissible falls within the jurisdiction of the Self‑Regulatory Body notified by the Ministry of Electronics and Information Technology., It is further submitted that games of skill do not cease to be skill games even when played for stakes. The Kerala High Court in Head Digital Networks Pvt. Ltd. v. State of Kerala held that playing games of skill for stakes does not amount to gambling. There is no concept of an independent category of betting on games of skill. All betting sought to be placed within the ambit of betting and gambling is betting on games of chance. Reliance is placed on the Apex Court judgment in K. R. Lakshmanan and on this Court's judgment in Junglee Games., The word 'betting' cannot be segregated from 'gambling' to create an alternate field of regulation by the State. The State can legislate only on betting pertaining to gambling, i.e., betting on games of chance. This principle is supported by the Division Bench judgment in Junglee Games., When a provision is clear and unambiguous, the word 'or' cannot be read as 'and', and the word 'and' cannot be read as 'or'., The games of online rummy and poker are no different from playing physical rummy or poker, other than the fact that the game is conducted virtually on a platform. The game per se is the same. The State creates an artificial distinction between online and offline rummy without material evidence, violating Article 14 of the Constitution of India., The State cannot invoke Entry 1 of the State List, which relates to public order, to regulate online games of skill. Public order concerns require a disturbance of public peace, safety or tranquillity, which is not demonstrated by online skill games that are played indoors. Reliance is placed on Ram Manohar Lohia v. State of Bihar & Anr and on the Karnataka High Court judgment in All India Gaming Federation., Entry 6 of the State List provides for public health and sanitation, hospitals and dispensaries. The impugned Act is not relatable to this entry, and alleged deleterious effects of online gaming cannot form the basis for State legislation on public health., The impugned Act is against the Constitution of India. The State enacted it to override the findings of this Court in Junglee Games. The Act creates a charade of prohibiting gambling while actually banning games held to be games of skill by various courts, including this Court. The State cannot regulate online skill gaming under the State List, as the sector is already regulated by the Ministry of Electronics and Information Technology, the nodal ministry for regulation of games on the Indian internet. The Act is not a validating act. The judgment in Junglee Rummy is binding on the State, and no law under Entry 34 of the State List can be enacted to prohibit games of skill., The State's reliance on screenshots of the petitioners to suggest that the petitioners' incentives to players are to gain profits is incorrect. Every legitimate business runs promotions and schemes to expand its business and earn profit, which is a protected activity under Article 19(1)(g) of the Constitution of India. If the State's argument were accepted, all profit‑making business activities would be prohibited. The petitioners do not profit from the winnings of the players; they charge a predetermined service charge from the players., The petitioners, being companies, are maintainable parties to the writ petitions. The shareholders have been arrayed as parties. Reliance is placed on the Apex Court judgments in R. C. Cooper v. Union of India, Bennett Coleman & Co. v. Union of India, and Western Coalfields Ltd. v. Special Area Development Authority, Korba., The petitioners offer platforms to play games of skill (online rummy and poker) with real money only to persons above the age of eighteen years. Players who register on the platform and play real‑money games are subjected to a Know Your Customer (KYC) process., A player's wallet is linked to a bank account and, at the end of the game, the winner receives the entire winning amount in their bank account, minus the predetermined service charge/platform fee deducted by the petitioners. If the player wishes to close the account, the amounts are returned to the source from which the money was deposited. Goods and Services Tax forms part of the service fee and is paid by the petitioners to the Government in compliance with applicable law., The petitioners do not employ bots or use artificial intelligence. The State has failed to substantiate its allegation of bot or AI usage; the allegations are bald. The petitioners' platforms do not deploy AI or bots for gameplay. An independent globally renowned I.T. audit agency, iTech Labs, Australia, has issued a certificate confirming that there is no usage of bots in the gameplay. The agency's certification has been accepted by governments of several countries. The State of Tamil Nadu may assess the same by deputing an independent agency of repute. Online rummy or poker is played between two or more human beings only., Mr. Kapil Sibal, Senior Counsel; Mr. R. Shunmugasundaram, Advocate General of the State of Tamil Nadu; Mr. Amit Anand Tiwari, Additional Advocate General (Supreme Court); and Mr. P. Muthukumar, State Government Pleader, canvassed their submissions on behalf of the State of Tamil Nadu (respondents)., The preamble of the Act of 2022 establishes societal concerns that need to be addressed with reference to betting and gambling and its impact on families and society. The Government of Tamil Nadu constituted a Committee chaired by Justice K. Chandru (Retd.) comprising five members, incorporating experts from law, psychiatry and technology to understand the legal and social implications of online games. Allegations of bias against the Committee are misguided and bereft of merit. The terms of reference were wide and open, including the determination of whether online games involve skill and the study of algorithms and their susceptibility to being tweaked., The provisions of the impugned Act are traceable to the matters enumerated in Entries 1, 6 and 34 of the State List. The Act is also referable to the subject of criminal law under Entry 1, List III (Concurrent List) of the Seventh Schedule of the Constitution of India.
id_1324	1	Entry 34 in the State List relates to betting and gambling and enables the State Legislature to make laws on betting and gambling, or both. There is no legal impediment preventing the State from making a law on the subject of betting per se, including betting on games of skill, pursuant to Entry 34 in the State List and the enactment of a law regulating betting on games of skill is not contrary to any binding judicial decisions. The judgment of the Supreme Court of India in Junglee Games (supra) is per incuriam to the extent that it holds that betting in Entry 34 in the State List cannot be divorced from gambling and treated as an additional field for the State to legislate on, apart from the betting involved in gambling., The Supreme Court of India has held that the entries in the lists in the VII Schedule of the Constitution of India must be given wide interpretation in furtherance of the presumption of constitutional validity. Reliance is placed on the judgment of the Supreme Court of India in the case of Elel Hotels & Investments Ltd. vs. Union of India. The restrictive interpretation adopted by the Supreme Court of India in the case of Junglee Games (supra) ignores this interpretive canon and is per incuriam., No repugnancy has resulted due to the amendment of the Intermediary Guidelines by the Ministry of Electronics and Information Technology notification dated 06.04.2023. Rule 2(1)(qd) of the Information Technology Amendment Rules defines online real money game as where a user makes a deposit in cash or kind with the expectation of earning winnings on that deposit. The provision includes an explanation that winning is any prize, in cash or kind, which is distributed or intended to be distributed to a user of the online game based on the performance of the user and in accordance with the rules of such online game. Therefore, online real money games are online games where the earnings of the player are contingent on his performance, that is skill, with no reference to any game of chance or gambling. The Information Technology Amendment Rules themselves provide that when an online gaming intermediary hosts any online games which violate the impugned Act, such conduct would be a breach of due diligence under the Information Technology Amendment Rules., Further, Section 15 of the impugned Act takes into account the issue of legislative competence with regard to internet communication. The enforcement of the prohibition and regulation on online gambling service providers is not abrogated by the State; instead, the enforcement mechanism consists of a provision enabling the Online Gaming Authority to make a recommendation to the State Government, which in turn would merely request the Central Government to exercise its powers under Section 69-A of the Information Technology Act, 2000 in respect of offending gambling service. In any event, under Article 246(3) of the Constitution of India, the Tamil Nadu Legislature has exclusive competence to make laws on the subjects mentioned in the State List. The matter of betting and gambling is enumerated in Entry 34 in the State List, and as such, the State of Tamil Nadu has an exclusive jurisdiction in respect of the same., It is the Ministry of Electronics and Information Technology notification, amending the Intermediary Guidelines, which is invalid for lack of legislative competence. The definition of online real money game in the Ministry of Electronics and Information Technology notification takes into its fold all games, whether of skill or chance that involve betting, which is in the area of the State's exclusive legislative competence under Entry 34 in the State List. By adding Rule 4A after Rule 4 in the Information Technology Amendment Rules, the Central Government has sought not only to usurp for itself, but also to outsource to a non‑governmental body for the State's exclusive competence to legislate on betting and gambling under Entry 34 in the State List., The judgments relied on by the petitioners to contend that the game of rummy is a game of skill date to an era where there was no internet or it was in its infancy. The Supreme Court of India, at that relevant time, had not been in the position to apprehend the growth and scope of online gaming and its ease of access to the public. The findings of the said judgments are de hors the ambit of online rummy and the reliance thereof, as online rummy is a game of skill, is misplaced., The discussion in K.R. Lakshmanan (supra) pertained to the statutory interpretation of the expressions gaming and mere skills in terms of the Madras City Police Act, 1888 and the Madras Gaming Act, 1930. The challenge in the said case was to the amendment effected to the Madras City Police Act, 1888 and the Madras Gaming Act, 1930, wherein the definition of gaming was amended by removing the exception granted to horse racing, subject to certain conditions stipulated therein. The Supreme Court of India held horse racing to be a game of skill and neither gambling nor gaming. However, Section 3, as it was read prior to the amendment, construed horse racing a game of skill if (1) played on any date other than the date of running; or (2) in any place outside the enclosures of authority controlling the race. As such, the State, within its legislative competence, was empowered to regulate the game of skill in horse racing to determine when it would amount to gambling and consequently, prohibiting it, and the same has been recognised by the Supreme Court of India in the case of Lakshmanan (supra)., The observation of the Supreme Court of India in the case of Junglee Games (supra) that betting on a game of skill is itself an activity, in which success depends on the skill of the player, is not universally true. Even if the game may be one of skill, the success of the person betting would depend on how accurately the result of the game can be guessed by someone who is not playing it. Even in the former case, where the player and bettor are the same person, the player may lack data about his opponents. Thus, he would be staking money on what is, from his perspective, an uncertain event, hence, he would be betting. The correctness of the judgment in the case of Junglee Games (supra) is also under challenge before the Supreme Court of India., Online rummy cannot be described as a game of skill due to various reasons, as its dealer (software) knows all the unopened cards., Moreover, the State's interest in reasonably restricting the same is weightier in view of the following aspects: (a) online games are available at all times of the day to be played by an unlimited number of players from anywhere in the world; (b) there is no social check of any sort on addictive behaviour of an individual and the game user is totally at the mercy of the game providers who would naturally be inclined to make him play more and more; (c) the design elements are used to ensure that the online game user becomes psychologically dependent on the positive feeling generated upon winning even a few rounds of the game, even though they make a loss overall; (d) most of the money staked by the online game users gets converted as profit of the online gaming firm; and (e) money lending for supporting online gambling is a full‑blown economic sector which fuels addiction to online gambling., Reliance is placed on the judgment of the Supreme Court of India in the case of M.J. Sivani (supra). The Supreme Court of India held that gaming is to play any game whether of skill or chance for money or money's worth. No game can be a game of skill alone. It is not practicable to decide whether a particular video game is a game of skill or a mixed skill and chance., The judgment of the Karnataka High Court in Gameskraft Technologies Pvt. Ltd. v. Directorate General of Goods, Services Tax Intelligence (Headquarters) and Ors. has been stayed by the Supreme Court of India. In the said case, the single judge of the Karnataka High Court held that the game of skill, whether played with stakes or without stakes, is not gambling and that there is no difference between offline/physical rummy and online rummy. Many developed countries worldwide have prohibited online games and gambling services. There is no authoritative pronouncement to hold that rummy is a game of skill, much less of an online gaming. Incentives are offered by the petitioners involved in the online gaming business in high proportions., The placement of the conjunction \and\ between the expressions betting and gambling in Entry 34 in the State List is contrary to the approach directed by the Supreme Court of India. The conjunction appears several times in the entries in the lists in the VII Schedule. If the same consequence is attached to the placement of the conjunction in all cases, it could lead to irrational results. For example, Entry 48 in the Union List enables Parliament to make laws on the subject matter of stock exchanges and futures markets. Applying the same conjunction to Entry 48 in the Union List would lead to a result where no law can be made relating to stock exchanges, on which no futures are traded., With respect to the game of poker, even when poker is played physically, the game has been held to be a game of chance by the Gujarat High Court in the case of Dominance Games (supra). Thus, as far as online poker is concerned, even the support of the judgment of the Supreme Court of India is not available to the petitioners., The doctrine of proportionality cannot be converted into a form of mandamus, wherein the judiciary instructs the legislature about the specific type of regulation that should be adopted, no matter the cost. The measures comparable to the impugned Act have withstood the test of proportionality, since courts worldwide have acknowledged the risk of social and economic hardship posed by online gambling. In Liga Portuguesa de Futebol Professional, the Court of Justice of the European Union upheld Portugal's legislation prohibiting operators established in other Member States from offering games of chance via the internet in Portugal. Similarly, the Supreme Court for the State of Washington in the United States in the case of Rousso v. State upheld a similar prohibition on remote gambling services., Online rummy and online poker are substantially different from rummy and poker played in physical space. In physical card games, there is a truly random process (shuffling of cards), which can be seen and verified by the players. In online rummy/poker, there is no actual shuffling of cards and the same is simulated by the computer usually using a random number generator software (RNG). Every computer, from the simple Babbage Engine to the modern supercomputer, is in the final analysis a device which operates mechanically through a combination of switches which turn on (binary 1) and turn off (binary 0). Computers are incapable of generating a truly random outcome; the chance element in online rummy/poker is not comparable to the chance element in the physical versions of these games. In view of that, the Supreme Court of India would not merely decide based on the judgments which ostensibly state that physical rummy or physical poker are games of skill and that online rummy and online poker are also games of skill., The petitioners' platforms, which host online rummy and online poker, are not comparable to physical clubs where such card games are played, because: (a) the game of rummy is played in a club for limited hours when the club is open. The same is played by individuals above the age of eighteen. No virtual money is used as mode of payment. However, in the online world, there is no way to verify the claim that the person involved is eighteen years old and above. Though the player is duty‑bound to make a self‑declaration to that effect, the gaming company has no means to verify that fact; (b) the club does not benefit from betting and gambling while the game of rummy is being played. The club does not receive any monetary consideration directly from the players. In virtual mode, a certain percentage has to be paid from each of the players in the game of rummy and poker; (c) the participants in the physical world are face‑to‑face. Online rummy could well be played using artificial intelligence which would be aware of the best possible option in each gameplay; (d) the petitioners' platforms are capable of recording the manner in which each player exercises options in a certain situation and therefore know the pattern in which the player exercises those options, which in the physical world is not known to the club and players; (e) the cards in a club are distributed by players themselves in turns and in the sight of those who are present and playing the game. Such is not the case in online rummy., The definition of online game under Section 2(k) of the impugned Act has unique qualities which distinguish it from offline games. A physical card game involves a true element of chance on account of factors such as each player knowing only his/her own cards and not other players' cards; no one, including the dealer, knows the unopened cards; no one, including the dealer, can touch the unopened cards or change the order; no one, including the dealer, knows which card is at which place. In the absence of such factors, the chance element in any card game cannot be described as a true element of chance. The predominance or otherwise of the skill element in an online game cannot be measured because the chance element in an online game is not a true element of chance. A computer, at best, can generate only a pseudo‑random outcome, which is never a truly random outcome. Despite harping on the equivalence between real‑life true chance and the chance generated via RNG, the petitioners or its members do not appear to have faith in the mechanism. For this reason, several online game providers include a disclaimer as to the consequences of deploying RNG., The impugned Act does not seek to overrule any binding judicial precedent or pronouncement. There is no inter partes finding of fact by any court for the specific online games of rummy and poker offered by the petitioners herein that they are games of skill or that there is any impediment to the State to adopt suitable legislation within its competence to regulate the said games. The legislature is competent to remove the basis of a judgment. Reliance is placed on the judgment of the Supreme Court of India in the case of Shri Prithvi Cotton Mills Ltd. v. Broach Borough Municipality., The impugned Act is a sui generis legislation on online gaming and gambling and there is no authoritative legal pronouncement on the character of any online game as a game of chance or a game of skill. Hence, the old binary of game of skill versus game of chance, which was formulated in the pre‑Information Technology period, needs recalibration by factoring in the critical differences between offline and online games., The term public order in Entry 1 in the State List has a wide connotation. Reliance is placed on the judgment of the Supreme Court of India in the case of Rev. Stainislaus v. State of Madhya Pradesh. The object and purpose of the impugned Act is to remedy the public disorder that has resulted from the unchecked spread of online gaming addiction and online gambling in the State and to prevent it from spreading further. The spread of unchecked online gaming addiction and online gambling in the State was leading to (1) persons incurring unsustainable debts and committing suicides; (2) financial distress for families; (3) exploitation of persons in the State on account of the addictive design of online games and the incitement to squander money; (4) psychological and physiological effects such as development of aggressive behaviour, poor eyesight, reduced concentration, diminished analytical thinking and decreased productivity among the youth within the State. Reading the Act as a whole, it is evident that the legislature had the threat of public disorder due to online gaming and gambling in mind while passing the impugned Act and that the provisions of the impugned Act have the effect of curbing the said threat. The impugned Act qualifies as a law on the subject of public order under Entry 1 in the State List and is intra vires the power conferred on the Tamil Nadu Legislature by Article 246(3) of the Constitution of India., The State does not have to wait for the threat to public order to fully manifest into widespread public disorder before invoking its legislative power under Entry 1 in the State List. The petitioners have failed to distinguish between the scope of public order under Entry 1 in the State List vis‑a‑vis the phrase maintenance of public order, which appears in Entry 3 in the Concurrent List. The judgment relied on by the petitioners in the case of Ram Manohar Lohia (supra) relates to the interpretation of the phrase maintenance of public order, while the judgment in the case of Alijan Mian v. District Magistrate also discusses the same phrase., Reliance is placed on the judgment of the Supreme Court of India in the case of Kartar Singh v. State of Punjab. It is contended that the only conclusion regarding Entry 1 in the State List, emerging from the case of Kartar Singh (supra), is that public disorder targeted by a law under Entry 1 in the State List must be of a lesser gravity having impact within the boundaries of the State and cannot extend to matters such as terrorist activities which threaten the sovereignty and integrity of the Nation., The impugned Act is valid under Article 245 of the Constitution of India as long as it meets the doctrine of territorial nexus test, i.e.; (a) the nexus between what is sought to be regulated and the territory of the State is real and not illusionary; and (b) the liability sought to be imposed is pertinent to that connection. The same has been held in the case of State of Bombay v. R.M.D. Chamarbaugwala. The doctrine of territorial nexus with non‑local online game providers is established based on the fact that such entities reach out to persons present within the State. Given that the object and purpose of the impugned Act is to protect persons within the State of Tamil Nadu from harms associated with online gambling and online gaming addiction, it stands to reason that the impugned Act only applies to non‑local online game providers, whose activities are likely to lead to such harm on account of their failure to exercise due diligence or provide geo‑blocking within the territory of the State. The impugned Act has no extraterritorial effect and is not invalid on that ground., Gaming disorder has been recognised and included by the World Health Organisation (WHO) in its International Classification of Diseases (11th Revision), which is characterised by a pattern of persistent or recurrent gaming behaviour and is manifested by impaired control over other activities and continuation of gaming, despite the occurrence of negative consequences in personal, family, social, educational, occupational or other important areas of functioning. It is therefore evident that leaving online gaming unregulated poses a grave threat, particularly to young persons within the State and that online gaming addiction, recognised as a mental health concern by the WHO, is spreading in the State., For this reason, the State Legislature has made a suitable law, under which the Online Gaming Authority can regulate the eligible age at which persons can play online games and the number of hours for which an online gaming service can be made available to them. Such provisions can safeguard the mental health of the people of the State as an aspect of public health and are therefore intra vires the power of the Tamil Nadu Legislature under Article 246(2) of the Constitution of India read with Entry 6 in the State List. Any activity affecting the mental health of the general public can be regulated by the State in terms of Entry 6 in the State List., The impugned Act does not violate any fundamental rights of the petitioners. The petitioners cannot claim fundamental rights guaranteed by Article 19(1)(g) of the Constitution of India solely on the basis of there being an aggregation of citizens (shareholders), that is to say, the right of the citizens composing the body. Reliance is placed on the judgments of the Supreme Court of India in the cases of Divisional Forest Officer v. Bishwanath Tea Co. Ltd. and A.P. Dairy Development Corporation Federation v. B. Narasimha Reddy. As for the shareholders and directors in online gaming companies, assuming that they are citizens of India, the petitioners lack locus to file such petitions, because unlike the legislation under challenge in R.C. Cooper (Banks Nationalisation) v. Union of India, the impugned Act does not deal with their rights qua the shareholders and directors and only targets the activities of the company. The indirect consequences, if any, of the impugned Act on the values of the shares of the shareholders pursuant to the enactment of the impugned Act would not confer locus on such petitions., The petitioners are not in a position to agitate the putative fundamental rights of players of the game of skill to play such a game as their occupation or profession. The Supreme Court of India would examine the reasonableness under Article 19(1)(g) of the Constitution of India for the restrictions placed on the trade or business carried on by the petitioners/its members and not the restriction on the right of the players to play the online games on offer as their occupation or profession. The unregulated trade or business may have a greater social and economic impact than an individual carrying on a specific profession or occupation. There is a strong public interest in regulating and, in suitable cases, prohibiting trades and business to prevent wide‑ranging social harms which may result therefrom. The stronger restrictions may qualify as reasonable restrictions in the context of trade and business rights under Article 19(1)(g) of the Constitution of India, as compared to restrictions on professions and occupations of individuals., No person or a company can claim a fundamental right to organise a game which is a game of chance or organise a service for betting on games of chance. Such trades or businesses are in the nature of gambling services and qualify as res extra commercium. Article 19(1)(g) of the Constitution of India offers no protection for carrying on such trades or business. The petitioners/its members offer their online gaming services for a fee and derive profit in several ways from the activity of providing online gambling services. Other sources of income of the company are the commission received from users, revenue from rummy, fantasy sports and casual games, platform fees and entry fee paid by the users in a game. Therefore, as per the decision of the Supreme Court of India in the case of K. Satyanarayana, the petitioners/its members qualify as businesses in the nature of gaming houses, whose activities can be prohibited and may warrant prosecution under criminal laws. The impugned Act seeks to do the very same., It is further submitted that assuming without conceding that the petitioners are entitled to any fundamental rights under Article 19 of the Constitution, the impugned Act qualifies as a reasonable and proportionate restriction on the petitioners' activities under Article 19 of the Constitution of India. The impugned Act satisfies all four prongs of the test of proportionality outlined by the Supreme Court of India in the case of Modern Dental College and Research Centre., Artificial intelligence and bots are used in online games in several scenarios. Detecting the use of AI and AI‑assisted bots as part of online gaming services is impossible by merely examining the functioning of the online game program itself. Thus, the regulation of online games for ensuring fair play and equal chance of betting poses challenges of a different nature and scope compared to regulating offline games. It is on this basis that the Tamil Nadu Legislature, in its wisdom, has taken the most social and economic step of prohibiting online gambling services altogether., The impugned Act pursues the legitimate goal of countering ruinous addiction to online gambling and of protecting vulnerable and under‑age persons who are at great risk of harm to their finances and mental health on account of the uninterrupted and unrestricted access to gambling platforms. Prohibition on online gambling services is a suitable measure for achieving this goal. No measure other than prohibition of online gambling services would be as effective for achieving the legitimate goal, as prescribed herein. Regulating any entity that operates over the internet is a complex matter and would involve disproportionate expenditure of finances and manpower, which is not feasible for the State of Tamil Nadu., We have considered the submissions canvassed by learned counsel for the parties., The petitioners are challenging the Act of 2022, namely the Tamil Nadu Prohibition of Online Gambling and Regulation of Online Games Act, 2022. The impugned Act is enacted in the backdrop of the Tamil Nadu Gaming and Police Laws (Amendment) Act, 2021 (hereinafter referred to as the Amendment Act of 2021), which had sought to ban online games such as rummy and poker played with stakes or money. The said Amendment Act of 2021 was struck down in its entirety by the Supreme Court of India and was declared ultra vires the Constitution of India under the detailed judgment dated 03.08.2021 in the case of Junglee Games (supra)., After the aforesaid judgment was delivered by the Supreme Court of India, thereby striking down the Amendment Act of 2021, the State Government appointed a five‑member committee, headed by a retired judge of the Supreme Court of India for advising the Government for enacting fresh legislation on online games. The State Government purportedly, on the basis of the recommendations made by the committee, promulgated the Tamil Nadu Prohibition of Online Gambling and Regulation of Online Games Ordinance, 2022 on 01.10.2022. The ordinance was challenged before the Supreme Court of India in W.P.No.29911 of 2022, but as there was no date notified for operation of the ordinance, the petitioners, along with other persons, were permitted to withdraw the petition on 16.11.2022 to represent their cases as and when the date is notified., The ordinance was subsequently introduced as a bill on 19.10.2022 and was passed by the Legislative Assembly on the same day. The bill was returned by the Governor of Tamil Nadu over certain concerns regarding the similarity between the bill and the Amendment Act of 2021, which was struck down by the Supreme Court of India. The bill was re‑enacted by the Legislative Assembly without any changes on 23.03.2023, which was assented by the Governor of Tamil Nadu on 07.04.2023. The Tamil Nadu Prohibition of Online Gambling and Regulation of Online Games Act, 2022 was published in the Tamil Nadu Government Gazette Extraordinary and the notification bringing the impugned Act into force was issued on 21.04.2023., Section 2(i) of the impugned Act defines online gambling as online wagering or betting and includes playing of any online game of chance for money or other stakes in any manner. The definition is further explained as wagering or betting shall be deemed to comprise the collection or soliciting of bets, the receipt or distribution of winnings or prizes, in money or otherwise, in respect of any wager or bet, or any act which is intended to aid or facilitate wagering or betting or such collection, soliciting, receipt or distribution., Section 2(l) of the impugned Act defines online game of chance as follows: online game of chance includes any online game which (i) involves both an element of chance and an element of skill and the element of chance dominates over the element of skill; or (ii) involves an element of chance that can be eliminated only by superlative skill; or (iii) is a game that is presented as involving an element of chance; or (iv) involves cards, dice, wheel or such other device, which works on random outcome or event generator., The Online Gaming Authority is established under Section 3 and the functions of the authority are detailed under Section 4, whereunder, in Section 4(1)(c), one of the functions of the authority is to identify online games of chance and recommend the same to the Government for inclusion in the Schedule.
id_1324	2	Section 5 of the Act of 2022 empowers the Authority, with the previous approval of the Government, to make regulations consistent with the provisions of the Act or the Rules. Sub‑Section (2) of Section 5 of the Act of 2022 states that regulation may provide for (a) time limit, monetary limit, age restriction or such other restrictions in regard to playing of online games; and (b) procedure to regulate its own functions., Section 7 of the Act of 2022 states that (1) online gambling is prohibited; (2) playing of online games of chance specified in the Schedule with money or other stakes is prohibited. Sub‑Section (3) of Section 7 of the Act of 2022 provides that no online games provider shall provide online gambling service or allow playing of any online game of chance, specified in the Schedule, with money or other stakes or playing of any other online game in contravention of the regulations in any form., Section 10 of the Act of 2022 prohibits local online games providers from providing any service for the conduct of any online game, except in accordance with the certificate of registration duly obtained from the Authority. Section 14 of the Act of 2022 prohibits non‑local online games providers from providing any online gambling service so as to allow playing of any online game of chance specified in the Schedule with money or other stakes or allow playing of any other online game contrary to the regulations in this State. Section 23 of the Act of 2022 provides that any online game specified in the Schedule shall be presumed to be an online game of chance. Sub‑Section (2) of Section 23 of the Act of 2022 empowers the Government, by notification, to omit or add any online game in the Schedule, on the recommendation of the Authority and upon issuance of such notification, the Schedule shall be deemed to be amended accordingly., On the day the impugned Act was enacted, rummy and poker were included in the Schedule of the impugned Act as online games of chance. This is the bone of contention in the present matter. It is true that whenever there is a challenge to the constitutional validity of an Act enacted by the Legislature or provisions thereto, one has to keep in mind that presumption is in favour of constitutional validity of law enacted by the Legislature and the petitioners will have to demonstrate transgression of the constitutional provisions and the mandate. It is well settled that the legislative enactment can be challenged on two grounds: (i) that the Legislature does not possess the competence to make the said law; (ii) that the same is arbitrary, irrational and that it takes away or abridges any of the Fundamental Rights enumerated in Part III of the Constitution of India or any other constitutional provisions. The matter will have to be decided on the touchstone of these principles., The essence of the impugned Act has been clearly encapsulated in its Preamble. The impugned Act is based on the pretext of achieving public welfare and to maintain public health. The Act is enacted under the premise that the issues of online gaming and gambling cannot be dealt with by the old binary of game of chance versus game of skill and a new conceptual framework is needed, which incorporates the understanding of how Information Technology operates at the basic level, the critical difference between physical and online in general and also the physical and online versions of the games., The intention and object of promulgating the impugned legislation, no doubt, appears to be laudable and bonafide. However, mere intention and bonafides would not be sufficient to uphold the legislation. The legislation has to withstand the test of legislative competence and should be free from manifest arbitrariness. The State is empowered to legislate in respect of the entries in List II of the Seventh Schedule. Entry 34 of the State List includes betting and gambling. This entry was the subject matter of consideration before the Supreme Court of India in a catena of cases. The Supreme Court of India in the case of State of Bombay v. R.M.D. Chamarbaugwala observed that if even a scintilla of skill was required for success the competition could not be regarded as of a gambling nature. In R.M.D. Chamarbaugwala v. Union of India the Court held that competitions in which success depends to a substantial extent on skill and competitions in which it does not so depend form two distinct and separate categories. The difference between the two classes of competitions is as clear‑cut as that between commercial and wagering contracts., In Andhra Pradesh v. K. Satyanarayana and Ors. the Supreme Court of India held that the game of rummy is not a game entirely of chance like the three‑card game mentioned in the Madras case. The three‑card game, which goes under different names such as flush, brag, etc., is a game of pure chance. Rummy, on the other hand, requires a certain amount of skill because the fall of the cards has to be memorised and the building up of rummy requires considerable skill in holding and discarding cards. Hence, rummy is mainly and preponderantly a game of skill. The Supreme Court of India in K.R. Lakshmanan v. State of Tamil Nadu elaborated that gaming is an act or practice of gambling on a game of chance. Gambling would mean wagering or betting on games of chance and would not include games of skill. The Court held that games of skill, although the element of chance necessarily cannot be entirely eliminated, are those in which success depends principally upon the superior knowledge, training, attention, experience and adroitness of the player. Golf, chess and even rummy are considered to be games of skill. In that case the club was charging a 5 % commission but was not earning an income from the betting money; the Court held this to be legal., The Division Bench of the Supreme Court of India in Junglee Games India Private Limited v. State of Tamil Nadu also held that the games of rummy and poker are games of skill. Even in the 276th report of the Law Commission, poker is referred to as a game of skill. The learned Single Judge of the Gujarat High Court held that poker is a game of chance, relying upon a United States District Court judgment. The Supreme Court of India later considered the same issue and the Division Bench’s judgment was held to be the appropriate authority. Similar judgments have been followed by the High Courts of Karnataka, Andhra Pradesh, Kerala and the Supreme Court of India in cases such as B. Mahamood & Ors. v. State, Muthu v. State, All India Gaming Federation v. State of Karnataka, Head Digital Works Private Limited v. State of Kerala, Executive Club v. State of Andhra Pradesh, Patamata Cultural and Recreation Society v. Commissioner of Police, Friends Cultural & Sports Society Club v. Secretary Home Departments, G.V.R. Family Club v. State of Andhra Pradesh, D. Krishna Kumar v. State of AP, Twin Cities Cinema Cultural Centre v. Commissioner of Police, and Fulsingh Naik Krida Mandir v. State of Maharashtra, where it is held that rummy is a game of skill., The State, in the impugned Act, has already included the games of rummy and poker as online games of chance merely on presumption. The State’s contention that the dealer (software) knows all the cards at all times, can change unopened cards, and that players cannot prevent the dealer from breaching the rules is unsupported by any evidence. The petitioners have adopted the highest standard of security measures on their platforms. Players’ deposits are encrypted with 128‑bit encryption; no information about the cards dealt is shared with any party; user data are stored in a secure environment and are not shared with third parties except for service provision under a Non‑Disclosure Agreement; a dedicated customer support team monitors games regularly; table allocation is random and not prefixed; players logged in from the same IP address are not allocated seats on the same table; playing‑card information is always encrypted; there is no intervention by the petitioners in the conduct of games between players; anti‑fraud algorithms are applied after games to detect defraud attempts; the Code of Conduct allows players to set responsible‑play limits for time and money; constant technical upgrades ensure fair and secure gameplay; no bots or artificial intelligence are used, as certified by an independent IT audit agency (iTech Labs, Australia); the card decks are properly shuffled and the RNG software ensures no bias or tampering, so that all users start the game on an equal footing., The contention of the State that the petitioners may use bots is without any basis. There is nothing on record to substantiate the proposition that the dealer (software) knows all the cards, can change unopened cards, or that the software knows the cards in each player’s hand. These propositions are merely surmised. In the absence of authentic evidence, it would be far‑fetched to conclude that online rummy partakes the character of a game of chance and is distinctly different from the offline version., We are now transcending into the era of digitisation and entertainment. People, instead of playing in clubs, are now playing online. With the rise of internet connectivity and technological advancements, there is a spurt in online games. The games of rummy and poker, which are considered games of skill, are also now sought to be played online. Online fantasy games are now held to be games of skill and not games of chance by the High Court of Punjab and Haryana in Varun Gumber v. Union Territory of Chandigarh & Ors. The High Court of Rajasthan, in Chandresh Sankhla v. State of Rajasthan, observed that in Dream 11 there is no element of betting or gambling as it is a game of skill. The High Court of Bombay has also reiterated the same in Gurdeep Singh Sachar v. Union of India., The Central Government, in exercise of its powers conferred by Sub‑Section (1) and Clauses (z) and (zg) of Sub‑Section (2) of Section 87 of the Information Technology Act, 2000, enacted the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023. These Rules came into effect on 6 April 2023. The IT Amendment Rules, 2023 define an online real‑money game as an online game where a user makes a deposit in cash or kind with the expectation of earning winnings on that deposit. An online gaming intermediary means any intermediary that enables the users of its computer resource to access one or more online games. Under Rule 4A, the Ministry may, by notification in the Official Gazette, designate as many Online Gaming Self‑regulatory Bodies as it may consider necessary for the purpose of verifying an online real‑money game as permissible under the Rules. The said Rule provides for an Online Gaming Intermediary Body comprising persons from varied fields, such as an individual with practical experience in the online gaming industry, an educationist, an expert in psychology or mental health, an individual with special knowledge of or practical experience in information and communications technology, and an individual who is or has been a member or officer of an organisation dealing with the protection of child rights., One cannot divorce betting from gambling. The contention of Mr. Kapil Sibal, learned Senior Counsel for the State, is that in K. Satyanarayana the Supreme Court of India held that if there is evidence of gambling in some other way or that the owner of the club is making a profit or gain from the game of rummy or any other game played for stakes, the offence may be brought home. In that case the club was charging a sitting fee of 50 paise per person. The Court further observed that if it had been proved that 5 paise per game were charged, that might have been considered an illegal charge. In the present case the platform provider is charging a fixed sum and is not claiming shares in the profits. If the game providers were claiming shares in the profits, that would be a different situation altogether., The Supreme Court of India, in K.R. Lakshmanan, held that unless both betting and gambling are involved, the State Legislature has no legislative competence to make law. The State has relied upon its power to legislate in view of Entry 1 and Entry 6 of the State List. Entry 1 deals with public order and Entry 6 deals with public health, sanitation, hospitals and dispensaries. No doubt, the State is concerned with public health, which is one of its duties. However, the report relied upon by the State was based only on a survey of school teachers, and the teachers would be supervising students below 18 years of age. Students below 18 years are prohibited from playing online games in the instant case., It is to be considered that online games in the instant case are not available for persons/children below the age of 18 years. Online games can be played only by persons who are 18 years and above, i.e., adults and not school children. The apprehension raised by the learned Senior Counsel for the State was that there would be no methodology to verify the age of the person playing. The petitioners responded that a person, before enrolling to play, is required to submit his Aadhaar Card, photograph, KYC and other precautionary measures to confirm that the person is 18 years old or more. Another apprehension of the respondent was that the games are played 24 hours, thereby endangering public and domestic health. As observed above, the concern expressed by the State about public health of its citizens is natural. Section 5 of the impugned Act authorises the Authority, by notification and with the previous approval of the Government, to make regulations to carry out the provisions of the Act, namely, time limit, monetary limit, age restriction or such other restrictions in regard to playing of online games. The State certainly has the power to regulate online games of skill. It can provide for a time limit, age restriction and other aspects, which would be within the competence of the State., The power to regulate games of skill lies with the State Legislature under Entry 26, List II of the Indian Constitution, viz., Trade and Commerce. If that is the case, then the State certainly will have the right to regulate games, as is contemplated in Chapters IV and V of the impugned Act. Though the aspect of public welfare ought to be considered while legislating a particular subject matter, it is necessary to carve out pragmatic regulatory measures rather than imposing a blanket ban., In R.M.D. Chamarbaugwala v. Union of India the Supreme Court of India observed that while controlling and regulating would be requisite in the case of gambling, mere regulation would have been sufficient as regards competitions involving skill. The Preamble of the Act states that the Act is to prohibit online gambling and to regulate online games in the State of Tamil Nadu. Certainly, online gambling can be prohibited by the State. The State has ample power to enact legislation to prohibit online gambling and it also has the power to regulate online games of skill in Tamil Nadu. Instead of regulating online games of skill, in this case rummy and poker, the State has simply prohibited the said games, which is in excess of its legislative competence., Heavy reliance is placed by the State on the judgment of the Supreme Court of India in M.J. Sivani. In that case the Court was considering legislation enacted for the running of video‑game parlours and not the playing of video games. The Court held that certain video games fall within the class of games of chance and not games of skill after considering a report of a Committee of Senior Police Officials demonstrating tampering of video‑game machines. However, in the present case the State could not demonstrate any tampering of software or any device that would take rummy or poker out of the contour of games of skill. Moreover, the three‑Judge Bench of the Supreme Court of India in K.R. Lakshmanan held rummy to be a game of skill., Another apprehension raised by the State is of public order. Public order in the State List would imply activities that would jeopardise and affect the public at large. The Supreme Court of India, in Ram Manohar Lohia, observed that every breach of the peace does not lead to public disorder. When two drunkards quarrel and fight there is disorder but not public disorder. Such matters can be dealt with under the powers to maintain law and order but cannot be detained on the ground that they were disturbing public order.
id_1324	3	Suppose that the two fighters were of rival communities and one of them tried to raise communal passions. The problem is still one of law and order but it raises the apprehension of public disorder. Other examples can be imagined. The contravention of law always affects order but before it can be said to affect public order, it must affect the community or the public at large. A mere disturbance of law and order leading to disorder is thus not necessarily sufficient for action under the Defence of India Act but disturbances which subvert the public order are. There is no evidence in the instant case that public order is disturbed., In the light of the aforesaid discussion, we hold that the impugned Act, in its entirety, need not be held to be ultra vires. It is held that the State is competent to legislate to the extent of prohibiting online gambling, i.e., games of chance, at the same time, it has the authority to regulate online games of skill. The definition of online gambling under Section 2(i) of the impugned Act shall be read as restricted to games of chance and not games involving skill. Section 2(l)(iv) of the impugned Act would not be entirely valid. The games of rummy and poker are games of card, but are games of skill. Section 2(l)(iv) is being read down to mean it excludes games of skill viz., rummy and poker., Having held that the State has the authority to legislate on online games of chance, as gambling would be betting on the games of chance, it is not necessary to declare Sections 7, 8 and 9 of the impugned Act as ultra vires. As discussed above, it has been authoritatively held by the Apex Court in a series of judgments, as well as by this Court, that the games of rummy and poker are games of skill. The State has failed to demonstrate that online games of rummy and poker are different and distinct from offline games of rummy and poker. The apprehension expressed by the State that bots may be used or the dealer software would know the cards is without any substantive material. In view thereof, the Schedule under Section 23, incorporating rummy and poker as games of chance, is set aside., The State may make regulations as contemplated under Section 5 of the impugned Act, thereby providing reasonable regulations for the time limit, age restriction or such other restrictions in regard to playing of online games. Section 10 of the impugned Act may not be declared as ultra vires as it will be necessary for the State to know about the online games providers operating within its State and that they are not indulging in any games of chance. If the State comes across the usage of bots or any dubious methods in the play of games of rummy and poker, it can take action and for that purpose also it will be necessary to uphold Section 10 of the impugned Act. The State may frame regulations as contemplated under Section 5 of the impugned Act., In the light of the aforesaid, the writ petitions, as such, stand partly allowed. The prayer to declare the entire impugned Act of 2022 as ultra vires is negated. The Schedule of the impugned Act, including the games of rummy and poker, are set aside. Sections 2(i) and 2(l)(iv) of the impugned Act shall be read as restricted to games of chance and not games involving skill, viz., rummy and poker. There will be no order as to costs. Consequently, Writ Petition Numbers 12944, 13271, 13272, 13398, 13399, 13400, 13403, 1405, 13406, 14202 and 1204 of 2023 are closed. Writ Petition Numbers 13269, 13397, 13402 and 14201 of 2023, filed to permit the petitioners to file a single writ petition, are allowed and disposed of, as they have paid separate sets of court fee.
id_1325	0	Through: Mr. Aman Nandrajog, Mr. Amitabh Sinha and Mr. Anupam Pandey, Advocates versus Through: Mr. Ajay Vikram Singh, Appellant for the State with Sub‑Inspector Sunita, Police Station IGI Airport. The present petition has been filed by the petitioner under Section 482 of the Code of Criminal Procedure, 1973 seeking quashing of the FIR No. 70/2016 dated 19 February 2016 at Police Station IGI Airport under Sections 25, 54 and 59 of the Arms Act, 1959 and all proceedings emanating therefrom., As per the FIR, on 19 February 2016, while the petitioner was travelling from Delhi to Riyadh on Air India Flight bearing number AI‑925, he was found in possession of one live cartridge (.32) in his check‑in baggage and, upon questioning, could not give any valid reasons or justification for the same. Thereafter, on the complaint of the Senior Security Superintendent, Air India, the FIR in the present case was registered., Learned counsel for the petitioner submits that the petitioner is a businessman, resident of Moradabad, Uttar Pradesh. It is submitted that only a few days prior to the date of the incident, he had travelled to Bijnaur to attend a wedding where he had stayed at the house of one Mohammad Nazim, who is known to his family for over forty years and who has a duly verified licence to bear arms being Licence number 39550 issued by the State of Uttar Pradesh. It is submitted that Mohammad Nazim had shown him guns and bullets to the petitioner and it was during such time that inadvertently one of the cartridges fell into the bag of the petitioner, which was detected at the airport. Learned counsel for the petitioner submits that the petitioner had no knowledge of the cartridge in his bag. He further submits that it was due to panic and fear that the petitioner could not divulge this information during investigation., Relying upon the judgments of the Coordinate Benches of the Delhi High Court in Namanpreet S. Dhillon versus State (2022 SCC OnLine Del 2255), Koteshwari Organti versus State of NCT of Delhi and Rahul Mamgain versus State of NCT of Delhi (2022 SCC OnLine Del 4917), learned counsel for the petitioner submits that the petitioner was not in conscious possession of the cartridge and had no intention to carry the same and that only a solitary cartridge was found in his possession without any firearm which does not prove that the petitioner had animus possidendi. Learned counsel for the petitioner thus prays that the present FIR be quashed., The status report has been filed stating therein that the arms licence of Mohammad Nazim was verified and it was found that the weapon type is revolver, .32 bore, weapon number FG‑39550, issued in Uttar Pradesh and valid until 19 May 2026., I have heard the learned counsel for the petitioner and the learned Appellant for the State and have perused the relevant documents on record., It has been held in a plethora of judgments including Gunwant Lal versus State of Madhya Pradesh (1972) 2 SCC 194 and Sanjay Dutt versus State through CBI Bombay (II) Crimes 1994 (3) 344 (Supreme Court), that conscious possession is the most significant ingredient for prosecution under the Arms Act, 1959. The possession herein is not mere custody of the arms but such possession supported by mens rea or intention., Further, a Coordinate Bench of the Delhi High Court in Arvinder Singh versus State (2012 SCC OnLine Del 3320) has held that when only a single cartridge or bullet is found in the possession of the offender, without any other suspicious circumstances, such possession shall not be enough to prosecute the offender, as a solitary cartridge is a minor ammunition, which is protected under clause (d) of Section 45 of the Arms Act, 1959., In the present matter, only a single live cartridge was recovered from the petitioner, and the record reveals that the petitioner was not conscious of such possession and it was inadvertently that the cartridge remained in his bag while travelling. In view of the factual matrix involved, this Court is of the view that it is a fit case to quash the FIR as the petitioner had no intention of carrying the said ammunition., Accordingly, the petition is allowed and FIR No. 70/2016 dated 19 February 2016 registered at Police Station IGI Airport under Sections 25, 54 and 59 of the Arms Act, 1959 and all proceedings emanating therefrom are quashed., Accordingly, the petition along with the pending applications stands disposed of., However, since the FIR has been pending for the last seven years and the police machinery was put in motion and involved for a considerable period of time, this Court finds it appropriate that the petitioner contributes towards the betterment of society by doing some social good. Accordingly, the petitioner is directed to deposit costs of Rs. 50,000 with the Regimental Fund Account, 3 Assam (Account No. 10794938617, IFSC Code SBIN0010460) within a period of one week from today., Renotify on 23 August 2023 for compliance thereof.
id_1327	0	WP(C). 24896 of 2022 Dated this the 21st day of February, 2023 Petitioner in this writ petition claims to be a public‑spirited person and an active social worker. He has filed this writ petition, challenging the illegal detention of transgenders at Palarivattom Police Station on account of wearing black dress to express protest during the visit of the Hon’ble Chief Minister of Kerala., Reliefs sought in this writ petition are as follows: to issue a writ of mandamus to the second respondent, who is the competent authority under section 110(3) of the Kerala Police Act, 2011, for conducting an inquiry into the professional misconduct of the officers concerned and taking action in accordance with law; to make a declaration that the arrest and detention for waving black flags in protest is per se illegal and unconstitutional and to direct the State Government to grant adequate compensation for the persons booked for waving black flags in front of the Chief Minister and Ministers in protest; and to order the third respondent to place the details of the cases in which persons who have been arrested and detained for having waved the black flag in protest to Ministers for the last three years., Mr. Rajesh Vijayan, learned counsel for the petitioner, submitted that transgenders here have not committed any offence under any law for the time being in force. Waving a black flag or wearing a black mask or dress by any citizen is an innocuous non‑offence in a democratic country like India to show dissent to any political executive. It is submitted by the petitioner that the illegal detention on account of such an act by police officers is violative of Articles 14, 19 and 21 of the Constitution and even makes out a serious offence under section 220 of the Indian Penal Code, 1860. Therefore, the detenue is liable to be compensated by the State., The police officers, being the protectors of law, have committed offences under sub‑sections (b) and (d) of section 18 of the Transgender Persons (Protection of Rights) Act, 2019. Section 18(b) provides that whoever denies a transgender person the right of passage to a public place or obstructs such person from using or having access to a public place to which other members have access shall be punishable. Section 18(d) provides that whoever harms or injures or endangers the life, safety, health or well‑being, whether mental or physical, of a transgender person, or tends to do acts including causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse, shall be punishable with imprisonment for a term not less than six months but which may extend to two years and with fine., It is further submitted by the petitioner that the fourth respondent, Station House Officer, Palarivattom Police Station, is liable to explain under section 32(1) of the Kerala Police Act, 2011 about his arbitrary and illegal act, which adversely affected the body and reputation of the transgenders and others who were booked illegally. Section 32(1) reads as follows: (1) Any person or his representative in interest shall have the right to seek and be informed of the reason for any police action which adversely affected his body, property or reputation. (2) A police officer while performing any act which is likely to endanger or adversely affect the body, property or reputation of any person shall, as is reasonably practicable under each particular circumstance, maintain records of his actions which are done under any law or order of the State Police Chief which governs such acts as may be prescribed by any law governing such act or as ordered by the State Police Chief, provided that nothing in this section shall prevent the denial of furnishing information to any person on the ground that it will be prejudicial to the interest of an ongoing investigation, trial or security of the State., In support of the reliefs sought, petitioner has raised the following grounds: (A) Petitioner has a fundamental duty under Articles 51A(e) and (h) of the Constitution to promote the spirit of common brotherhood amongst all the people of India transcending sectional diversities, and to develop humanism and the spirit of inquiry and reform, respectively. (B) According to the petitioner, any violation of section 8(6) of the Kerala Police Act, 2011 would amount to an offence of dereliction of duty, as contemplated in section 114(a) of the Kerala Police Act, 2011. Section 8(6) provides that any citizen shall have the right to know whether any particular person is in custody at the police station. Section 114 deals with dereliction of duty by a police officer: whoever, being a police officer, violates or neglects to obey any legal provision, procedure, rule or regulation applicable to members of the police force under this Act, shall on conviction be punished with imprisonment for a term which may extend to three months or with fine or with both. (C) Section 143 of the Indian Penal Code will not attract for the following reasons: (i) the black flag can be waived by persons below five persons; (ii) the aggrieved must be in the exercise of lawful power or legal obligation, be he a public servant or any person; (iii) there must be criminal force contemplated in the illustrations given under section 350 of the Indian Penal Code. The essence of section 143 is a combination of five or more persons united in the purpose of committing a criminal offence and the consensus of purpose is itself an offence distinct from the criminal offence which these persons agree and intend to commit., A detailed statement is filed on behalf of the third respondent, State Police Chief, wherein it is stated that on 11 June 2022, the fourth respondent performed his official duty and took steps to prevent commission of a cognizable offence during the visit of a ‘Z+’ category protectee. The statement averred that the rights of the transgender persons were not infringed by the police in any way. The fourth respondent denied all the allegations raised by the petitioner with respect to the violation of rights of two transgender persons, as per sections 18(b) and 18(d) of the Transgender Persons (Protection of Rights) Act, 2019. Relevant portions of the statement read thus: the transgenders were taken into custody not for wearing black dress as alleged, but because they were trying to intrude the motorcade of the Hon’ble Chief Minister of Kerala; they were removed and taken into brief police custody by the fourth respondent. The incident happened on 11 June 2022 at 16:00 hours in connection with the inauguration of Karikkinos Cancer Research Centre, first floor of Kaloor Metro Station, Ernakulam. The Hon’ble Chief Minister was the chief guest and is a Z‑plus category protectee. Tight security arrangements were made by the fourth respondent to prevent untoward incidents, especially in view of intelligence inputs that political protesters may go beyond peaceful protests., The statement further submitted that on 11 June 2022, upon the arrival of the Hon’ble Chief Minister, two persons who appeared to be transgender tried to intrude the motorcade parked in front of Kaloor Metro Station. When police officers deployed attempted to prevent them, the persons claimed they were transgender and that police had no right to prevent them; they willfully created a ruckus with an intention to seek media attention. The transgender persons were repeatedly persuaded to move away from the vicinity of the protectee’s motorcade, but they remained and tried to intrude into the motorcade shouting slogans against the Chief Minister. Their action posed a threat to the motorcade security system and the public carriageway, leading the fourth respondent to remove and arrest them as a preventive action at around 16:10 hours. Both persons were lodged in the Ernakulam Vanitha Police Station and released at 17:55 hours, within one hour and forty‑five minutes. The General Diary of Palarivattom Police Station recorded the incident. The names and addresses of the transgender persons are: (1) Anna Raju, age 33, daughter of Raju, Kadalikkattil House, Kalamassery; and (2) Avanthika, age 27, daughter of Luka Joseph, Panakuzhiyil House, Mannakkanad, Kottayam., It is pertinent to note that on 14 June 2022, three days after the above incident, Anna Raju committed an offence within the same police station limits, registered as Crime No. 602/2022 under sections 153 and 34 of the Indian Penal Code and section 6 of the Kerala Prevention of Damage to Private Property and Payment of Compensation Act, 2019. Anna Raju and another companion burned the CPI(M) flag at Palarivattom South Janatha Road; the video footage was uploaded and broadcast live on Facebook, leading to a serious law and order issue between Congress and CPI(M) activists across the State. The accused were arrested, released on bail by the learned jurisdictional magistrate, and a charge sheet was filed before the court on 21 June 2022. The transgenders were arrested by the fourth respondent in accordance with legal procedures as a preventive step under section 151 of the Criminal Procedure Code. A true copy of the inspection memo is produced as Annexure R3(d)., The police have been initiating preventive action not against waving of black flags in peaceful protests but for attempting to obstruct the public carriageway and a security‑categorized protectee’s motorcade. The rights of transgender persons were not infringed by the police in any way. The petitioner alleged that rights of the two transgender persons were violated as per sections 18(b) and 18(d) of the Transgender Persons (Protection of Rights) Act, 2019, which is baseless and incorrect. Section 18 of the Act enumerates offences and penalties, including compelling a transgender person to forced labour, denying passage to a public place, forcing a transgender person to leave residence, and harming or endangering the life, safety, health or well‑being of a transgender person, punishable with imprisonment of six months to two years and fine., The individuals who were detained under section 151 of the Criminal Procedure Code were deliberately attempting to cause a commotion while disobeying all security precautions, and they were trying to obstruct the State’s Chief Minister. Section 151 reads as follows: (1) A police officer knowing of a design to commit any cognizable offence may arrest, without orders from a magistrate and without a warrant, the person so designing, if it appears to such officer that the commission of the offence cannot be otherwise prevented. (2) No person arrested under sub‑section (1) shall be detained in custody for a period exceeding twenty‑four hours from the time of his arrest unless further detention is required or authorised under any other provision of this Code or any other law for the time being in force., In the reply affidavit filed by the petitioner on 31 January 2023, it is contended that the embellished statement filed by the Inspector General of Police and Commissioner of Police, Kochi City, on behalf of the third respondent conflicts with the facts and law, especially the substance of the information recorded on 11 June 2022 in the General Diary in accordance with section 154(1) of the Criminal Procedure Code. The substance reads: ‘At 16:10 hours, the transgenders who had come to protest in the meeting of the Hon’ble Chief Minister were removed from the spot and taken to the Women Police Station.’ Coming to protest in the meeting of the Chief Minister is not a cognizable offence defined in section 2(c) of the Criminal Procedure Code. The arrest memo shows that the arrest was made under section 151 of the Criminal Procedure Code. To attract a preventive arrest under section 151, there must be two prerequisites: (i) the police officer knew that the offender had a design to commit a cognizable offence; and (ii) the commission could not be otherwise prevented. Case law such as Mohammed Ali v. Sri Ram Swarup, AIR 1965 All 16; Medha Patkar v. State of Madhya Pradesh, 2008 CrLJ 47; and Ahmed Noorbhai Bhatti v. State of Gujarat (2005) 3 support this view. The petitioner argues that the arrest of the transgenders in the instant case is devoid of such circumstances., The second frivolous and vexatious case, Crime No. 602/2022 of Palarivattom Police Station, was registered under sections 153 and 34 of the Indian Penal Code and section 6 of the Kerala Private Property Damages Act, 2019, with a punishment of ten years’ imprisonment for burning an ‘illegal’ flag defiantly set up on public place, though not in the FIR. There was neither a damaging act under section 2(a) nor a private property offence under section 2(c) contemplated under the Act, 2019. The place of occurrence, South Janatha Road, is Government land where the illegal flagpole was set up. Section 120(d) of the Kerala Police Act, 2011 prohibits setting up such illegal flags on public place without permission of the local authority. It is also an offence of trespass into Government land causing nuisance under section 120(f) of the Kerala Police Act, 2011, punishable with imprisonment for one year. Section 7(a) of the Kerala Land Conservancy Act, 1957 punishes trespass into Government land with imprisonment for five years; it is a cognizable and non‑bailable offence. The honorable court has repeatedly directed the respondent officials to remove flags of political parties illegally installed on public roads, which were allegedly burnt by the transgenders. It cannot be said to be a provocation to cause rioting. Rather, it appears to be a parallel law‑enforcement issue that the police dare not to enforce the law under sections 120(d) and (f) of the Kerala Police Act, 2011, and section 7(a) of the Kerala Land Conservancy Act, 1957, and comply with the directions of the honorable court in judgments WPC No. 22750/2018 dated 19 January 2022 and WPC No. 8238/2020 dated 17 March 2020. In fact, the District Police Chief, Kochi City, under section 66 of the Kerala Police Act, 2011 should have promised reward and awarded the same to the altruistic transgenders for the excellent services rendered for the prevention of offence and the maintenance of law and order in the removal of illegal flags from the government land., The exhibits of despatch register extracts are merely created for the purpose of showing that the documents have been despatched to the writ petitioner after sixteen days contrary to the stipulation of two days shown in the proviso to section 7(1) of the Right to Information Act, 2005 and section 8(6) of the Kerala Police Act, 2011. Neither was the petitioner ever asked to pay the prescribed fee under section 7 of the Right to Information Act nor were the documents given as falsely claimed., The term ‘security’ refers to a condition of not being threatened, especially physically, psychologically, emotionally, or financially. In the legal field, it is recognised as freedom from apprehension. Security coverings are issued in India to persons who are known to pose a high‑risk danger. Various levels of protection are granted to various persons based on information provided by the intelligence branch. In a democracy, according to the Constitution, every individual is an important person whose freedom from apprehension is to be rated as equally as that of the so‑called VIP. The famous adage is worth saying that ‘Your liberty to swing your fist ends just where my nose begins.’ The liberty of the illegally arrested and detained transgenders cannot be held to ransom for the illusory freedom from apprehension of the security personnel or the VIP. The fundamental rights of the illegally detained transgenders have been grossly trampled upon., Heard the learned counsel for the parties and perused the material on record. Material on record discloses that the Hon’ble Chief Minister is a ‘Z+’ category protectee. According to the State Police Chief, the transgenders were taken into custody for not wearing black dress. According to the police, on 11 June 2022, upon arrival of the Hon’ble Chief Minister, two persons who appeared as transgenders tried to intrude the motorcade parked in front of Kaloor Metro Station. When police officers attempted to prevent them, the persons claimed they were transgender and that police had no right to prevent them; they willfully created a ruckus with an intention to seek media attention. The transgender persons were repeatedly persuaded to go away from the vicinity of the protectee’s motorcade, but in vain. Their action posed a certain threat to the motorcade system and public carriageway, leading the Station House Officer, Palarivattom Police Station, to remove and arrest the transgenders as a preventive action around 16:10 hours. They were taken to Ernakulam Vanitha Police Station and released at 17:55 hours, i.e., within forty‑five minutes. The fact is recorded in the General Diary of Palarivattom Police Station., It is also contended that on 14 June 2022, three days after the above incident, Anna Raju committed an offence under section 153 read with section 34 of the Indian Penal Code and section 6 of the Kerala Prevention of Damage to Private Property and Payment of Compensation Act, 2019. Consequently, Crime No. 602/2022 was registered at the Palarivattom Police Station. The prosecution case is that Anna Raju and another accused burned the CPI(M) flag at Palarivattom South Janatha Road and the video footage was uploaded and broadcast live on social media. The accused were arrested, released on bail by the learned magistrate and later a charge sheet was filed before the court on 21 June 2022., Thus, it is the case of the third respondent police that preventive action was necessary and hence the arrest. While adverting to the violations of rights of transgenders, it is relevant to consider sub‑sections (b) and (d) of section 18 of the Transgender Persons (Protection of Rights) Act, 2019, extracted supra. Action which occasioned the police to arrest the transgenders does not fall within the ambit of any violation as defined under the Act., Section 151 of the Code of Criminal Procedure, 1973, dealing with arrest to prevent the commission of cognizable offences, reads as follows: (1) A police officer knowing of a design to commit any cognizable offence may arrest, without orders from a magistrate and without a warrant, the person so designing, if it appears to such officer that the commission of the offence cannot be otherwise prevented. (2) No person arrested under sub‑section (1) shall be detained in custody for a period exceeding twenty‑four hours from the time of his arrest unless his further detention is required or authorised under any other provision of this Code or any other law for the time being in force., Though the petitioner has refuted the facts stated in the counter‑affidavit/statement of the third respondent and further contended that, to attract section 151 of the Criminal Procedure Code, there must be two requisites, viz., (i) that the police officer knew the offender had a design to commit a cognizable offence, and (ii) that the commission could not be otherwise prevented, we are of the view that the aforesaid contentions are questions of fact and cannot be adjudicated in a writ petition., In the light of the above discussion, this Court is of the view that the petitioner has not made out a case for issuance of a writ of mandamus or any directions, as prayed for. In the result, the writ petition is dismissed. No costs.
id_133	0	Through: Mr. Virendra Singh, Advocate versus Respondent. Through: Mr. Sanjiv Sabharwal, Learned Appellant. Mr. Kanhaiya Singhal, Ms. Priyal Garg, Ms. Saumya Sharma, Mr. Prasanna, Advocates for Respondent No.2, SI Mahesh, Police Station Alipur, Delhi. Allowed subject to all just exceptions. The application stands disposed of., This is an appeal filed seeking setting aside final order/judgment dated 18.11.2021 passed by the Learned Special Fast Track Court, North‑West, Rohini Courts, Delhi in case number SC 565/2021 emanating from the First Information Report No. 171/2018 registered at Police Station Alipur, Delhi under Sections 376, 506, 323, 328, 109, 120 B, 34 of the Indian Penal Code. Mr. Kanhaiya Singhal, Learned counsel for the Respondent No.2 and Mr. Sanjiv Sabharwal, Learned Appellant for the State have drawn my attention to contents of the petition and strongly object to the same., Before going through the merits of the matter, it would be important to reproduce the allegations made by the appellant against the judges of the Learned Trial Court as well as this Court in the petition., The allegations are contained in paragraph 18 which reads as under: That further, in spite of humbly praying to the Hon'ble Justice ... that various legal issues and some miscellaneous applications are pending adjudication before the Trial Court and that a review petition filed under the Witness Protection Scheme, 2018, is also pending before the Competent Authority (North District). So, in view of the pending jurisdiction issue to be decided by Your Honour, the proceedings before the Trial Court be stayed as the Trial Court is not presided over by a Learned Lady Judge as per mandate of the Hon'ble Supreme Court of India. However, Justice ... forced the Learned Trial Court to conduct proceedings taking highly unreasonable and flimsy ground as mentioned in paragraph 4 of the order dated 15.11.2021 reproduced hereunder:, Learned Appellant for the State submits that today, the matter was fixed for recording of the statements of the two investigating officers before the Learned Trial Court. The main grievance of the Learned counsel for the applicant is that it will not be convenient for the complainant to attend proceedings in cross‑examination before the Learned Trial Court as it is presided over by a male judge. Since the examination of the investigating officers is going on, this Court finds no ground to stay the proceedings before the Learned Trial Court at the moment. It is clarified that the proceedings in the meantime will continue before the Learned Trial Court. Further, from the query regarding operation of the working by the counsel for the victim, it is revealed that Hon'ble Ms. Justice ... deliberately wanted to twist the whole issue as she did, observing that convenience of the counsel cannot be a ground for transfer of the case, however, it was nowhere the contention by the appellant victim who prayed for transfer to Saket Court or any other court except Rohini Courts and New Delhi Courts so that trial could be conducted by the court presided over by a Learned Lady Judge without any interference by any extra‑judicial source which was actively working since beginning of the trial at Rohini Courts and it would be affected further if the case was kept at Rohini Court premises or transferred to New Delhi District where the Learned District and Sessions Judge ... being relative of the prime accused as declared by ... outside of Court No. 29 Delhi High Court on 29.04.2019 with threats given to Party Witness -2 supported by further evidences, would have affected the trial as he did during his tenure at the Hon'ble High Court as Registrar General., Further, Hon'ble Ms. Justice ... illegally called a report from the Trial Court to find out whether after the transfer of the case, the trial proceeded or not? Further, the Criminal Modification Application was not disposed as per law and stay not granted but adjourned to 03.12.2021 so that Trial Court proceedings would continue to secure acquittal of the accused, Respondent No.3 & 4. Hence, this type of exercise and conduct not only violated the mandate and verdict of the Hon'ble Supreme Court but also infringed and snatched the right of the victim to have a fair, transparent and impartial trial enshrined under the Constitution of India., It is also stated that Hon'ble Ms. Justice ... did not mention the aforesaid submission of the victim in spite of request made to her and strong objection to the false statement of the corrupt investigating officer. This shows the personal interest and accused‑favoring attitude of Hon'ble Ms. Justice. Application 1555/2018 is annexed as Annexure‑A/5., Further, the petition also states as under: That Hon'ble ... illegally, even after objection and complaint made against her by the victim of helping the accused, being interested in the matter since beginning in the past and praying that she should send the matter to the Hon'ble Chief Justice of the Hon'ble High Court, decided the transfer petition in an arbitrary, prejudicial and mala‑fide manner., That on 04.10.2021, during the course of hearing of the above‑mentioned transfer petition, the victim humbly requested the Hon'ble Justice ... to send this case to the Hon'ble Chief Justice of Delhi High Court in view of the complaint made against her for accused favouritism and non‑listening to bona‑fide and genuine issues of constitutional rights of the victim and further requested to direct the authority who filed the petition to supply a copy of the aforesaid petition to the victim but of no avail as Hon'ble Ms. Justice ... continued to hear the aforesaid transfer petition., Further, instead of adjudicating the aforesaid Criminal Modification Application for modification in the light of the aforesaid judgments passed by the Hon'ble Supreme Court, and in view of the Hon'ble High Court's order passed pursuant to the aforesaid judgment Nipun Saxena (supra) being Order No. 05/G‑1/GAZ.IA.DHC/2021 dated 28.01.2021 whereby Special Fast Track Courts (Protection of Children from Sexual Offences) were created as special courts, Hon'ble Ms. Justice ... illegally and whimsically deferred the adjudication till 03.12.2021 and illegally called a report from the Trial Court whereas calling a report or directing the Trial Court to conduct proceedings in a particular way was beyond the jurisdiction of the Hon'ble High Court while adjudicating the application for modification of an order in a transfer petition., Thus, the whole proceedings conducted by Hon'ble Ms. Justice ... were against the interest and rights of the appellant/victim but also in derogation of the aforesaid judgments rendered by the Hon'ble Supreme Court of India. The contents of the order as mentioned in paragraph 5 are reproduced hereunder: List this petition before this Court on 3rd December 2021 when a report will be sent to this Court by the Learned Special Fast Track Court, North‑West District, Rohini Courts., That on 03.12.2021, the aforesaid Criminal Modification Application seeking modification of order dated 04.10.2021 was disposed of making and stating it infructuous. The apprehension of the appellant/victim that she would not get justice if the present case continued to be tried in the premises of Rohini Courts and if Hon'ble Ms. Justice adjudicates any matter pertaining to this Sessions Case as complained of against her, has come true., The aforesaid modification application again was disposed of without adverting to and adjudicating the legal question of law and grounds raised therein by the appellant/victim during oral arguments as well as contentions raised in the Criminal Modification Application seeking modification of the order dated 04.10.2021 whereby the Sessions Case was transferred to the North‑West District without having any competent jurisdiction as per mandate of the Hon'ble Supreme Court of India and in spite of grave and sincere objections raised by the appellant/victim to the jurisdiction of the Trial Court., That on 03.12.2021, Hon'ble Ms. Justice ... ground that since the judgment had already been delivered by the Trial Court acquitting the respondents (accused), so, application became infructuous and reiterated the story and course of proceedings conducted in a forced manner at the direction of Hon'ble Ms. Justice ... which were mentioned in the report sent by the Learned District Judge, North‑West and the order dated 12.11.2021 which was passed for making ground to acquit the accused persons Respondent No.3 & 4., Hon'ble Ms. Justice ... adjourned the hearing to 03.12.2021, knew well that till then the Trial Court as per her directions and the orders whereby she had directed the Trial Court to continue proceedings and to send a report whether proceedings conducted or not during that period, the Trial Court would complete the trial by acquitting the Respondent No.3 & 4., Thus, Hon'ble Ms. Justice ... since beginning at the time of hearing bail matter 1555/2018, W.P.(Crl.) 3961/2018 and in the whole course of proceedings in T.P. Crl. 45/2021 openly behaved and passed orders prejudicial to the rights of the victim and favoring the accused persons by violating not only the procedural law, rights of the victim but also disobeyed the mandate and verdict of the Hon'ble Supreme Court of India and thus evolved and created her own whimsical and arbitrary procedure to demolish the case of the victim. Her conduct in the open court during the proceedings was clearly accused‑favoring and inimical to the victim of a heinous crime., The law and ethics do not in any way empower or permit any judge of any rank to create and evolve its own course of procedure by which any desired goal can be accomplished. This gross deliberate illegality by the Sessions Judge (North‑West), Ms. ... Learned District & Sessions Judge and overtly and secretly behind the curtain as previously being Registrar General of the Hon'ble High Court of Delhi and later, District & Sessions Judge, New Delhi has deeply shaken the faith of the appellant/victim and Party Witness -2 so much so that they have lost faith in the aforesaid Hon'ble Judges and still fear that given the circumstances and the experience for last three and a half years multiple proceedings before the Hon'ble Courts, whether they would get fair, fearless and transparent justice in Delhi because if extra‑judicial interference of any sort is not abolished in Delhi from this case, the trial or any other proceeding is improbable to be fair and impartial., After reading the above paragraphs, I have put to the Learned counsel for the appellant that he should retract these paragraphs and challenge the findings of the Learned Trial Court as well as this Court in accordance with law without making any personal, tainted and malafide allegations against the judges., Mr. Singh, Learned counsel for the appellant, however, states that he will not amend the appeal and it needs to be adjudicated. He also states that these are not the allegations, but statements of facts which can easily be seen and perused and borne out from the record., A bare perusal of the averments made hereinabove show that they are scandalous and aimed at lowering the dignity and majesty of this Court. They have been made malafidely and interfere with administration of justice and amount to contempt. The allegations made in the petition are intrinsically contemptuous in nature and fall within the definition of criminal contempt of the Contempt of Courts Act, 1971 under Section 2(c)(i)., There is a direct attack on the reputation and functioning of not only one judge, but several judges of this Court. This vilification of judges can affect the administration of justice as it becomes a form of public mischief. An unwarranted attack on a judge, citing unscrupulous administration cannot be ignored by this Court., For a healthy democracy, there must be an impartial judiciary, however, it cannot be impaired by vindictive criticism. The judiciary is not immune from criticism, but when the criticism is based on distorted facts or gross misrepresentation of material averments, to intentionally lower the dignity and respect of this Court, it must be taken cognizance of., The above quoted representations and allegations are biased and intended to scandalize this Court. To make allegations that a judge deliberately wanted to twist issues in order to favour an accused or that they were personally interested in the matter, acted illegally or impartially are unjust statements., From the perusal of the supporting affidavit, it seems that it is not the contentions of the appellant. Paragraph 2 of the affidavit accompanying the appeal reads as under: That I have heard and understood the contents of accompanying Criminal Appeal under Section 372 of the Criminal Procedure Code, which has been drafted by my counsel and the same are true and correct to my knowledge and may be read as part and parcel of this affidavit., From the perusal of the affidavit, it seems that these are not all allegations which are being made by the appellant but are on legal advice received by the appellant from her counsel., It has been held by the Hon'ble Supreme Court in Prashant Bhushan & Anr., In re (2021) 3 SCC 745 that: This Court holds, that the judiciary is the guardian of the rule of law and is the central pillar of the democratic State. It holds, that in our country, the written Constitution is above all individuals and institutions and the judiciary has a special and additional duty to perform i.e. to oversee that all individuals and institutions including the executive and the legislature, act within the framework of not only the law but also the fundamental law of the land. It further holds, that this duty is apart from the function of adjudicating the disputes between the parties, which is essential to peaceful and orderly development of the society. It holds, that if the judiciary is to perform its duties and functions effectively and remain true to the spirit with which they are sacredly entrusted to it, the dignity and authority of the courts have to be respected and protected at all costs. It has been held, that otherwise, the very cornerstone of our constitutional scheme will give way and with it will disappear the rule of law and the civilized life in the society. It has been held, for this purpose that the courts are entrusted with the extraordinary power of punishing those who indulge in acts whether inside or outside the courts, which tend to undermine their authority and bring them into disrepute and disrespect by scandalising them and obstructing them from discharging their duties without fear or favour. It has been held, that when the court exercises this power, it does not do so to vindicate the dignity and honour of the individual judge who is personally attacked or scandalised, but to uphold the majesty of the law and of the administration of justice. It has been held, the foundation of the judiciary is the trust and the confidence of the people in its ability to deliver fearless and impartial justice. When the foundation itself is shaken by acts which tend to create disaffection and disrespect for the authority of the court by creating distrust in its working, the edifice of the judicial system gets eroded., It could thus be seen, that it has been held by this Court, that hostile criticism of judges as judges or judiciary would amount to scandalising the Court. It has been held, that any personal attack upon a judge in connection with the office he holds is dealt with under law of libel or slander. Yet defamatory publication concerning the judge as a judge brings the court or judges into contempt, a serious impediment to justice and an inroad on the majesty of justice. This Court further observed that any caricature of a judge calculated to lower the dignity of the court would destroy, undermine or tend to undermine public confidence in the administration of justice or the majesty of justice. It has been held, that imputing partiality, corruption, bias, improper motives to a judge is scandalization of the court and would be contempt of the court. It has been held, that the gravamen of the offence is that of lowering his dignity or authority or an affront to the majesty of justice. This Court held, that Section 2(c) of the Act defines criminal contempt in wider articulation. It has been held, that a tendency to scandalise the Court or tendency to lower the authority of the Court or tendency to interfere with or tendency to obstruct the administration of justice in any manner or tendency to challenge the authority or majesty of justice, would be a criminal contempt., I am of the view that notice of contempt needs to be issued. Accordingly, I issue a notice of contempt to the Learned counsel for the appellant to show cause as to why contempt proceedings be not initiated against him., In this view of the matter, I deem it appropriate to issue contempt notice to Mr. Virendra Singh, Advocate, Chamber No. 373, Patiala House Courts, New Delhi to show cause as to why contempt proceedings be not initiated against him. He shall file a response to the contempt notice within two weeks from today., The matter be listed before the Hon'ble Division Bench handling criminal contempt subject to the orders of the Hon'ble Chief Justice., List on 08.08.2022 before the Roster Bench.
id_1332	0	Appellant: Rohit Chaturvedi. Respondent: Smt. Neha Chaturvedi. Counsel for Appellant: Satish Chaturvedi. Counsel for Respondent: Yogendra Pal Singh. Honourable Saumitra Dayal Singh, Judge. Honourable Shiv Shanker Prasad, Judge., The matter is listed in top ten cases. List revised. Heard Sri Satish Chaturvedi, learned counsel for the appellant., The present appeal has been filed under Section 19 of the Family Court Act, 1984 arising from the judgment and order dated 17 March 2020 passed by Additional Principal Judge, Family Court, (Rohit Chaturvedi versus Smt. Neha Chaturvedi). By that order the Family Court dismissed the divorce case proceeding instituted by the present appellant, under Section 13 of the Hindu Marriage Act, 1955, hereinafter referred to as the Act., The appeal was admitted vide order dated 23 November 2020. Lower court record has been received. In such circumstances, on the urgency pressed by the appellant, by order dated 10 October 2022, we directed the appeal be listed in top ten cases., Undisputedly, the parties married on 5 May 2013. According to both parties their marriage was not consummated. As to the reason both blame the other. As to cohabitation, it appears that the parties were living together till 1 July 2014. Since July 2014 they have not lived together for a single day. As to the grounds claimed for divorce, the present appellant cited cruelty. As to the acts for cruelty, it has been submitted that the respondent refused to consummate the marriage. She misbehaved with the parents of the appellant on 15 November 2013 and had assaulted them. Thereafter, on 4 August 2014, she instigated a mob to chase and assault the appellant accusing him of being a thief. Further allegation was made with respect to a criminal case lodged by the respondent alleging demand of dowry etc. In that regard reference has also been made to certain letters written by the respondent to the Superintendent of Police, Ghaziabad dated 14 August 2014 and 20 January 2015. During the course of the divorce proceedings, an additional act for cruelty was pleaded of the respondent having made a scandalous allegation against the appellant of an illicit relationship with his sister‑in‑law (bhabhi)., Family Court has made a detailed consideration of the submissions advanced by the parties. It has found that although it was undisputed that the marriage between them was consummated, it could not be concluded that the blame for the same rested on the respondent. The facts alleged by the appellant were found to be not proven. Family Court has further considered certain occurrences wherein the respondent claimed to have tried to meet the appellant but was prevented. In that context Family Court discussed the occurrence dated 4 August 2014. It was noted that the respondent had gone to meet the appellant at his residence at Neelkanth Apartment, G.T. Road, Ghaziabad, but she was prevented from entering the residential society at the instance of the appellant and his family members. When the appellant came out, the respondent claimed to have made efforts to speak to him. Since the appellant avoided meeting her, she ran behind him. Up to that extent the incident is not disputed by the respondent. What transpired thereafter is disputed. According to the appellant, the respondent started shouting, whereupon a mob gathered and chased down the appellant and assaulted him and also restrained him and his parents. The respondent claims that the mob, on its own, chased the appellant and restrained him and others. However, she admitted that the police also came to the spot and restrained the appellant and his parents., From the above it appears that there are serious disputes between the parties. It is also noteworthy that both parties claim that the marriage was never consummated over a long period of ten years. There also appear to exist serious dispute that may have led to the incident on 4 August 2014. Prima facie it may not be accepted that a mob would have chased the appellant on its own, restrained him and his parents and handed them over to police without any other occurrence. Such conduct may not be normal within the members of a family. To instigate a mob on a false allegation solely for the purpose of causing embarrassment may never be accepted as normal conduct. At the same time, no formal arrest was made and no First Information Report was lodged on such false allegation. Thus, it may not complete the ingredients of cruelty necessary to be established for the grant of a decree of divorce., If courts were to recognize and act on small disputes or occurrences and read them as completion of the ingredients of cruelty, many marriages where parties may not be enjoying the best relations may stand exposed to dissolution without any real cruelty being committed., Cruelty is not defined under the Act yet it must be an act serious enough as to not allow a prudent person an opportunity or conviction to resolve matrimonial discord being faced by them or as to not burden them to continue to live in matrimony. Such acts, by very nature, must include things or occurrences of very serious nature having a deleterious effect on the relationship such as may be seen to prevent the parties from seeking reconciliation., There is no material before us that may lead to a conclusion that the allegation made by the respondent as to a criminal offence was plainly false. Evidence does not appear to have been led to that extent before the Family Court. Therefore, it is difficult to act on those allegations to infer commission of cruelty., As to the allegation of an illicit relationship, we find that the allegation was clearly not made as may allow the allegation of cruelty to arise at the instance of the appellant., In paragraph E of the additional pleas raised by the plaintiff‑appellant, it is stated that after some time the in‑laws of the respondent went to their native place at Etahawa, Uttar Pradesh and the brother of the petitioner went to his job. The petitioner, instead of sleeping in the room of the respondent, used to sleep with his bhabhi and her children and always maintained a distance from the complainant. To infer the existence of an illicit relationship, it is not to be left to the imagination of the Court what the parties may have intended to say by way of factual allegation. The allegation of one party having an illicit relationship with another must be clear. Here, the respondent may have only stated that instead of respecting the matrimonial relationship between the parties, the appellant chose to sleep in another room occupied by his sister‑in‑law and her children. Thus, the allegation of an illicit relationship was not made by the respondent., In view of the above, we find that the allegation of cruelty was not made out. To that extent, the Family Court has not erred in refusing to dissolve the marriage between the parties., However, at the same time we find that the Family Court has erred in not considering the grant of alternative relief in terms of Section 13A of the Act. The dispute between the parties arose immediately after their marriage and it is a proven fact that their marriage has neither been consummated nor have they cohabited for nine years, clearly indicating a lack of bond and healthy relationship between the parties. No fact has come on record to indicate that the parties have reconciled their disputes to the point that they may be willing to cohabit. Further, in the absence of any proceedings for restitution of conjugal rights by either party, the Family Court ought to have granted a decree for judicial separation by way of alternative relief. It is so because, besides the facts noted above, the occurrence of 4 August 2014 is established to the extent that the plaintiff‑appellant appears to have been restrained by a mob instigated by the respondent. That and other disputes between the parties are not seen to have been reconciled to any extent., In such facts, we find limited interference is required at this stage as ten years have passed since the marriage was solemnized. They have not cohabited for more than nine years now. There is no child born to the marriage and there is no hope of any reconciliation today., Accordingly, the decree is modified. We consider it just in the circumstances noted above to grant a decree of judicial separation to the appellant., At this stage, Sri Rahul Singh Tomar, Advocate, holding brief of Sri Yogendra Pal Singh, learned counsel for the respondent appeared. He first sought adjournment. Upon that request being declined, he requested the Family Court to record his presence. His presence is thus recorded.
id_1334	0	The Supreme Court Collegium has recommended the names of the following Judicial Officers for appointment as Judges of the High Court of Madhya Pradesh. On 11 May 2023 and 9 August 2023, the Chief Justice of the High Court of Madhya Pradesh, in consultation with his two senior‑most colleagues, made the above recommendation. The Chief Minister and the Governor of the State of Madhya Pradesh have concurred with the recommendations. In order to ascertain the fitness and suitability of the above persons for elevation to the High Court, we have consulted our colleague conversant with the affairs of the High Court of Madhya Pradesh. For the purpose of assessing the merit and suitability of the above candidates for elevation to the High Court, we have scrutinized and evaluated the material placed on record including the observations made by Shri Rajendra Kumar Vani, Shri Pramod Kumar Agrawal, Shri Binod Kumar Dwivedi, Shri Devnarayan Mishra, and Shri Gajendra Singh, the Department of Justice in the file as well as the complaints received against the candidates., Shri Rajendra Kumar Vani – Our sole consultee colleague has positively opined on his suitability for appointment as a Judge of the High Court. According to him, the performance of the candidate on the judicial side is found to be good and there is nothing adverse regarding his integrity. The inputs received from the Department of Justice indicate that he enjoys a good personal and professional image and that nothing adverse has come to notice against his integrity. He has been rated as an excellent, outstanding, very good officer in his Annual Confidential Reports. The Judgment Evaluation Committee constituted by the Chief Justice of the High Court has graded the quality of judgments authored by him as very good. Having regard to the above and in the facts and circumstances of the case, the Collegium is of the considered view that Shri Rajendra Kumar Vani is suitable for being appointed as a Judge of the High Court of Madhya Pradesh., Shri Pramod Kumar Agrawal – Our sole consultee colleague has opined that his work, performance and conduct are good and that his integrity is above board. The inputs received from the Department of Justice indicate that he enjoys a good personal and professional image and that nothing adverse has come to notice against his integrity. He has been graded as a very good, excellent officer in his Annual Confidential Reports. The Judgment Evaluation Committee constituted by the Chief Justice of the High Court has rated the quality of judgments authored by him as very good, good, very good. Having regard to the above, the Collegium is of the considered view that Shri Pramod Kumar Agrawal is suitable for being appointed as a Judge of the High Court of Madhya Pradesh., Shri Binod Kumar Dwivedi – Our sole consultee colleague has positively opined on his suitability for appointment as a Judge of the High Court. The inputs received from the Department of Justice are also positive. He has been rated as a very good, excellent officer in his Annual Confidential Reports. The High Court Collegium has recommended his name after duly taking note of the fact that the candidate has crossed the age of fifty‑eight years on the date of vacancy against which his name is recommended, as he is considered to be an exceptionally fit and suitable officer who would be an asset to the institution. Having regard to the above, the Collegium is of the considered view that Shri Binod Kumar Dwivedi is suitable and deserves to be appointed as a Judge of the High Court of Madhya Pradesh., Shri Devnarayan Mishra – Our sole consultee colleague has opined that his work, performance and conduct are good and that his integrity is above board. The inputs received from the Department of Justice indicate that he enjoys a good personal and professional image and that nothing adverse has come to notice against his integrity. He has been graded as a very good, excellent officer in his Annual Confidential Reports. The Judgment Evaluation Committee constituted by the Chief Justice of the High Court has rated the quality of the judgments authored by him as very good, good, excellent. Having regard to the above, the Collegium is of the considered view that Shri Devnarayan Mishra is suitable for being appointed as a Judge of the High Court of Madhya Pradesh., Shri Gajendra Singh – Our sole consultee colleague has opined that his work, performance and conduct are good and that his integrity is above board. The inputs received from the Department of Justice indicate that he enjoys a good personal and professional image and that nothing adverse has come to notice against his integrity. He has been graded as a very good, excellent officer in his Annual Confidential Reports. The Judgment Evaluation Committee constituted by the Chief Justice of the High Court has graded the judgments authored by him as very good, good, excellent. Having regard to the above, the Collegium is of the considered view that Shri Gajendra Singh is suitable for being appointed as a Judge of the High Court of Madhya Pradesh., While considering the above proposal, we have taken note of the fact that the proposal involves non‑recommendation of some senior judicial officers. We have also perused the representations made by some of these senior officers wherein they have raised the issue of their names having been overlooked by the High Court Collegium. We find that good reasons have been recorded by the Collegium of the High Court for not recommending their names. We are, therefore, in agreement with the Collegium of the High Court for not recommending their names. In view of the above, the Collegium resolves to recommend that Shri Rajendra Kumar Vani, Shri Pramod Kumar Agrawal, Shri Binod Kumar Dwivedi, Shri Devnarayan Mishra and Shri Gajendra Singh, Judicial Officers, be appointed as Judges of the High Court of Madhya Pradesh. Their inter se seniority shall be fixed as per the existing practice.
id_1335	0	At the outset, we note that, even according to the appellant husband, there is a delay of 195 days in filing the appeal. However, we will deal with the matter on merits. Through the instant appeal, the appellant husband seeks to assail the order dated 08 June 2023 passed by the learned Judge of Family Court, South Saket, Delhi (hereafter referred to as the Family Court), whereby the Family Court rejected his application seeking a direction to the respondent wife and the minor child born to the respondent wife to give their blood samples for conducting a paternity test. The apparent purpose behind the appellant husband seeking such direction is to establish the respondent wife’s adulterous conduct, the child being the pawn. The following dates and events, which are not in dispute, must be noticed. On 05 October 2008, the marriage between the parties was solemnised. On 18 July 2014, the respondent wife gave birth to a male child. A petition for dissolution of marriage was filed by the appellant husband on 31 January 2020. The principal ground on which the divorce petition was instituted is cruelty, invoking Section 13(1)(ia) of the Hindu Marriage Act, 1955. The appellant avers that after filing the divorce action, on 21 August 2020 the respondent wife lodged a petition (MC/298/2020) before the concerned court under the Protection of Women from Domestic Violence Act, 2005. On 03 November 2020, the appellant husband moved an application seeking amendments to the divorce petition to incorporate paragraphs that would, according to him, establish that he was suffering from azoospermia (i.e., no sperm count) and hence the child purportedly born from his wedlock with the respondent wife did not bear his paternity. By order dated 11 November 2022, the Family Court Judge allowed the amendment application, subject to costs of Rs 3,000 being paid to the respondent wife. The respondent wife was directed to file an amended written statement and the appellant husband was granted leave to file a replication. On 30 January 2023, the appellant husband moved an application wherein a direction was sought from the Family Court that the respondent wife and the child should be asked to give their blood samples so that the minor child’s paternity could be ascertained. The Family Court declined the request, basing its decision on the presumption of legitimacy under Section 112 of the Indian Evidence Act, 1872 and relying upon the judgment of the Supreme Court of India in Aparna Ajinkya Firodia v. Ajinkya Arun Firodia (2023) SCC OnLine SC 161. The Family Court specifically mentioned that the appellant husband had not taken the plea that he had no access to the respondent wife during the said period., Having heard the learned counsel for the appellant husband and perused the record, our view is as follows. The dates and events concerning marriage, the birth of the child and the period during which the parties lived together are not in dispute. Therefore, the birth of the child during the continuance of a valid marriage between the appellant husband and the respondent wife would foreclose a challenge to the child’s legitimacy unless paternity itself is an issue between the child and the parent. The present lis is between the couple who married on 05 October 2008. According to the appellant husband, the marriage should be dissolved because of cruelty inflicted by the respondent wife, invoking Section 13(1)(ia) of the Hindu Marriage Act, 1955. The appellant had not referred to his azoospermia until the amendment application dated 03 November 2020, which was allowed on 11 November 2022. Azoospermia is a condition where a person’s ejaculate does not contain spermatozoa. It may be obstructive or non‑obstructive and can sometimes be treated or allow retrieval of viable sperm for assisted reproductive techniques such as in‑vitro fertilisation. Consequently, despite the appellant’s assertion to the contrary, it remains possible that the child bears his paternity. The appellant’s endeavour to establish that the respondent wife had sexual intercourse voluntarily with a person other than the appellant may become the subject matter of trial before the Family Court. The appellant cannot, by a sidewind, impact the interest of the child who is not a party to the proceedings. The Family Court must consider the evidence that the parties may lead to determine whether the respondent wife had an adulterous relationship, without subjecting the child to a paternity test. This view finds resonance in the observations of the Supreme Court of India in Aparna Ajinkya Firodia v. Ajinkya Arun Firodia (2023) SCC OnLine SC 161: “The question as to whether a DNA test should be permitted on the child is to be analysed through the prism of the child and not through the prism of the parents. The child cannot be used as a pawn to show that the mother of the child was living in adultery. It is always open to the respondent husband to prove by other evidence the adulterous conduct of the wife, but the child’s right to identity should not be sacrificed.” Given that the parties lived together as husband and wife between 2008 and 2019, the presumption of legitimacy under Section 112 of the Indian Evidence Act arises in favour of the minor child. Moreover, the appellant chose not to question the paternity of the child until November 2020, when he sought amendments in the divorce action. Whether the respondent wife was involved in an adulterous relationship is an aspect that will have to go to trial., Thus, having considered the foregoing discussion, we find no good reason to interfere with the judgment. The appeal is dismissed. The pending application is rendered inefficacious and is hereby closed.
id_1336	0	Revisionist: Mr. X (Minor). Opposite Party: State of Uttar Pradesh and Another. Counsel for Revisionist: Satendra Singh. Counsel for Opposite Party: Additional Government Advocate, Mukesh Kumar Maurya. Honorable Mrs. Jyotsna Sharma, Judge., Heard Satendra Singh, learned counsel for the revisionist, and Additional Government Advocate for the State. No one appeared on behalf of the informant/respondent No. 2. The record was perused., This criminal revision has been filed under section 102 of the Juvenile Justice (Care and Protection of Children) Act, 2015, challenging the order dated 06 December 2021 passed by the Juvenile Justice Board, Mainpuri, and also challenging the order dated 10 February 2022 passed by the Special Judge (Protection of Children from Sexual Offences Act), Mainpuri in Criminal Appeal No. 24 of 2021, which affirmed the order of the Juvenile Justice Board and declined bail to the juvenile in a matter arising out of Case Crime No. 162 of 2021, under sections 376AB of the Indian Penal Code and section 5M/6 of the Protection of Children from Sexual Offences Act, Police Station Elau, District Mainpuri., The contentions of the revisionist are as follows: The orders impugned are arbitrary, unjust and have been passed against settled principles of law and against the mandate of section 12 of the Juvenile Justice Act; the assumptions of the courts below that if he is released on bail he shall be exposed to physical, moral and psychological danger and that the ends of justice shall be defeated are based on no evidence; the bail has been declined without any cogent reasons and on surmises and conjectures; there is nothing on record to show that the juvenile was in the company of criminals before the arrest; he himself has no criminal history; the case against him is false; the conclusion that the parents have no control over the revisionist is baseless; the bail has been declined on the basis of gravity of the offence, which is against settled principles of law., In this case, a First Information Report was lodged by the mother of the victim alleging that when her daughter, aged about six years, was playing outside her house below the shed, the accused juvenile, aged about fifteen years, lured her on the pretext of giving toffee, took her behind a hut and committed rape. The child started bleeding profusely; she was brought to the house by her cousin. When they went to the parents of the juvenile to complain, his mother thrashed him. The victim was given first aid and referred for higher medical assistance, where she was examined under sedation. A one centimetre tear was found in the fourchette and she was bleeding. The matter was brought before the Juvenile Justice Board; the juvenile’s age was found to be about twelve years and ten months in an age determination inquiry dated 05 October 2021. The District Probation Officer’s social investigation report observed that the boy requires strict control and supervision. Bail to the juvenile was declined by the Juvenile Justice Board and the appeal preferred on his behalf was also dismissed., Section 12(1) of the Juvenile Justice (Care and Protection of Children) Act, 2015 provides that when any person who is apparently a child and is alleged to have committed a bailable or non‑bailable offence is apprehended or detained by the police or appears before a Board, such person shall, notwithstanding anything contained in the Code of Criminal Procedure, 1973 or any other law, be released on bail with or without surety or placed under the supervision of a probation officer or under the care of any fit person. The proviso states that such person shall not be released if there appear reasonable grounds for believing that the release is likely to bring the person into association with any known criminal or expose the person to moral, physical or psychological danger, or the release would defeat the ends of justice, and the Board shall record the reasons for denying bail and the circumstances that led to such a decision., Thus, it is clear that bail to a juvenile is not mandatory in all cases and can be denied for certain reasons. The law does not say that once a person is found to be a juvenile, he must be released on bail irrespective of other facts and circumstances. Bail may be denied if, in the opinion of the Court, the juvenile’s release would defeat the ends of justice. The phrase ‘ends of justice’ encompasses many factors including the nature of the crime and the merits of the matter, although ordinarily the merits or the nature of the accusations are not to be considered. However, other facts and circumstances cannot be ignored by the Court. The Juvenile Justice Act differentiates offences into petty, serious and heinous categories, and the scheme of the Act takes the nature of the offence into consideration. The need to deal with heinous offences in a more sensitive manner has been emphasized by courts and the legislature., Whenever a Court decides to exercise its powers under the Juvenile Justice Act, 2015, the general principles enumerated in Section 3 of the Act must be kept in mind as guiding factors. All decisions regarding the child should be based primarily on the best interest of the child, while the demands of justice for the other side cannot be ignored. The concerns of the victim’s family and the larger interest of society must not be dealt with contemptuously. The scheme of the Act has a twin approach, reformatory as well as retributive to a certain extent. When dealing with bail grant or refusal, the ends of justice may compel the Court to strike a balance between the competing demands of justice of both the accused and the victim. The nature of the crime, the methodology adopted, the manner of commission and the evidence available assume significance. The aim of the Act is not only the welfare and betterment of the juvenile through reformatory services, but also to address the concerns of society at large. To give meaning to the phrase ‘ends of justice’, bail must be viewed through three angles: the welfare and best interest of the child, the demands of justice to the victim and her family, and the concerns of society at large. Ultimately, the Court must rely on its own robust sense of justice., In this case, a girl of tender age six years was subjected to violent sexual assault by a boy of merely fifteen years. She was enticed in a well‑planned manner by offering sweets. The trauma and shock caused to an innocent girl, who had no understanding of the act, and the resentment caused to her family are evident., In view of the above, the present criminal revision is dismissed. The Juvenile Justice Board is directed to expedite the hearing and conclude the matter at the earliest.
id_1337	0	Further to amend the Advocates Act, 1961. Be it enacted by Parliament in the Seventy‑fourth Year of the Republic of India as follows:, This Act may be called the Advocates (Amendment) Act, 2023 and shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint., After section 45 of the Advocates Act, 1961 (hereinafter referred to as the principal Act), the following section shall be inserted, namely: 45A. (1) Every High Court, District Judge, Sessions Judge, District Magistrate, and every Revenue Officer, not being below the rank of a Collector of a district (each as regards his own Court and the Courts, if any, subordinate thereto) may frame and publish lists of persons proved to his satisfaction, or to the satisfaction of any subordinate Court as provided in sub‑section (3) by evidence of general repute or otherwise, habitually to act as touts, and may, from time to time, alter and amend such lists. Explanation: The passing of a resolution, declaring any person to be or not to be a tout, by a majority of the members present at a meeting specially convened for the purpose, of an association of persons entitled to practice as legal practitioners in any Court or revenue office, shall be evidence of the general repute of such person for the purposes of this sub‑section. (2) No person's name shall be included in any such list until he shall have had an opportunity of showing cause against such inclusion. (3) Any authority empowered under sub‑section (1) to frame and publish a list of touts may send to any Court subordinate to such authority the names of any persons alleged or suspected to be touts, and order that Court to hold an inquiry in regard to such persons; and the subordinate Court shall thereupon hold an inquiry into the conduct of such persons and, after giving each such person an opportunity of showing cause as provided in sub‑section (2), shall report to the authority which has ordered the inquiry the name of each such person who has been proved to the satisfaction of the subordinate Court to be a tout; and that authority may include the name of any such person in the list of touts framed and published by that authority: Provided that such authority shall hear any such person who, before his name has been so included, appears before it and desires to be heard. (4) A copy of every such list shall be kept hung up in every Court to which the same relates. (5) The respective Court or Judge may, by general or special order, exclude from the precincts of the Court any person whose name is included in any such list. (6) Any person who acts as a tout whilst his name is included in any such list shall be punishable with imprisonment which may extend to three months, or with fine which may extend to five hundred rupees, or with both. (7) For the purposes of this section, (a) “Judge” means the presiding judicial officer in every Civil and Criminal Court, by whatever title he is designated; (b) “subordinate Court” means all Courts subordinate to the High Court, including Courts of Small Causes established under any law for the time being in force; (c) “revenue office” includes all Courts (other than Civil Courts) trying suits under any law for the time being in force relating to landholders and their tenants or agents; (d) “tout” means a person (i) who procures, in consideration of any remuneration moving from any legal practitioner, the employment of the legal practitioner in any legal business; or who proposes to any legal practitioner or to any person interested in any legal business to procure, in consideration of any remuneration moving from either of them, the employment of the legal practitioner in such business; or (ii) who for the purposes of such procurement frequents the precincts of Civil or Criminal Courts or of revenue offices, railway stations, landing stages, lodging places or other places of public resort., In section 50 of the principal Act, after sub‑section (5), the following sub‑section shall be inserted, namely: (6) On the date on which section 45A of the Advocates Act, 1961 comes into force, sections 1, 3 and 36 of the Legal Practitioners Act, 1879 shall stand repealed., The Advocates Act, 1961 (Act 25 of 1961) was enacted to amend and consolidate the law relating to legal practitioners and to provide for the constitution of Bar Councils and an All‑India Bar., Before independence, the Indian High Courts Act, 1861 passed by the British Parliament enabled the Crown to establish High Courts in India by Letters Patent and these Letters Patent authorised and empowered the High Courts to make rules for enrolment of advocates and attorneys. The Legal Practitioners Act, 1879 (Act 18 of 1879) was enacted to consolidate and amend the law relating to legal practitioners in certain provinces, and to empower the Provincial Government of every other province to extend thereto such portions of this Act as such Government may think fit. Legal practitioners were governed by the Legal Practitioners Act, 1879, the Bombay Pleaders Act, 1920 (Act 17 of 1920) and the Indian Bar Councils Act, 1926 (Act 38 of 1926)., After independence, in line with the need for change in judicial administration in India, the Law Commission was assigned the job of preparing a report on the reforms of judicial administration. The All‑India Bar Committee also examined the matter and made its recommendations in 1953. A comprehensive Advocates Act, 1961 was enacted after taking into account the recommendations of the All‑India Bar Committee and the Law Commission on the subject of reforms of judicial administration insofar as the recommendations related to the Bar and to legal education., All the aspects dealt with in the Legal Practitioners Act, 1879 are already covered under the Advocates Act, 1961 except the matter relating to ‘touts’. All sections of the Legal Practitioners Act, 1879, except sections 1, 3 and 36, have been repealed vide clause (a) of sub‑section (5) of section 50 of the Advocates Act, 1961. The Law Commission of India in its Report No. 249 titled ‘Obsolete Laws: Warranting Immediate Repeal (Second Interim Report)’ has also recommended the repeal of the Legal Practitioners Act, 1879 after making suitable amendments to the Advocates Act, 1961., In keeping with the Government’s policy of repealing all obsolete laws or pre‑independence Acts which have lost their utility, the Government of India in consultation with the Bar Council of India has decided to repeal the Legal Practitioners Act, 1879 and to amend the Advocates Act, 1961 by incorporating the provisions of section 36 of the Legal Practitioners Act, 1879 in the Advocates Act, 1961 so as to reduce the number of superfluous enactments in the statute book. This would also help to regulate the legal profession by a single Act, the Advocates Act, 1961. The Bill seeks to achieve the above objectives., The provisions of the Bill do not involve any expenditure of recurring or non‑recurring nature from the Consolidated Fund of India. Dated 21 July 2023.
id_1338	0	Chanda, wife of Prakashsingh Rathod, aged about 37 years, occupation nil, residing with Ritesh Thakur, Baghel Niwas, ND-42, J1/24 Hudco Bus Stop, Near Saimangal Karyalaya, New Nanded, present address. Prakashsingh, also known as Prakash, son of Ramadharsingh Rathod, aged about 40 years, occupation service, residing at Nimbandhe Plots, Borkar Wadi, Jatharpeth, Akola. Ms. Shilpa Tapadia, Advocate for the appellant. Shri Ravikumar Tiwari with Shri C.A. Joshi, Advocate for the respondent. Coram: Justice A.S. Chandurkar and Justice Urmila Joshi‑Phalke, Judges of the Family Court, Akola. Arguments heard on 15 September 2022. Judgment delivered on 19 September 2022., The appellant has challenged the judgment and decree of divorce passed by the Family Court, Akola on 22 October 2021., The appellant and respondent were husband and wife. Their marriage was solemnised on 6 May 2006 according to Hindu rites. One son and one daughter were born of the marriage. A matrimonial dispute arose while they were cohabiting, and the appellant left the matrimonial house to reside with her mother in Nanded. The respondent filed a petition in the Family Court for divorce alleging that the appellant’s behaviour was not good, that she treated him and his family with cruelty by raising quarrels over trivial matters, threatened him with suicide and attempted to involve him and his family in false criminal cases. He continued the matrimonial relationship to save the marriage. The appellant left the matrimonial house again on 1 June 2015 despite his attempts to bring her back., The respondent filed Hindu Marriage Petition No. 93 of 2016 for restitution. When the appellant did not resume cohabitation, he filed a petition under Section 13(1)(i‑a)(i‑b) of the Hindu Marriage Act, 1955 for divorce. While residing with her parents, the appellant filed an application for maintenance for herself and her two children in the Family Court at Nanded, bearing No. E‑45/2017. The maintenance application was decided on 7 December 2018, directing the respondent to pay maintenance of Rs 3,000 per month to each child, and rejecting the appellant’s claim for maintenance., The respondent filed divorce petition No. A‑113/2018 in the Family Court, Akola on 5 July 2018. The appellant appeared and filed a written statement on 11 January 2019, denying all allegations and contending that she was treated with cruelty by the husband and his relatives, which forced her to leave the matrimonial house and take shelter with her parents. The respondent had not made any provision for her maintenance or for the children’s maintenance, so she filed proceedings under Section 125 of the Criminal Procedure Code for maintenance and under Section 498‑A. The Section 125 proceedings were disposed by granting maintenance to the children, while the Section 498‑A proceedings remain pending at Nanded. Along with the written statement she filed an application for maintenance under Section 24 of the Hindu Marriage Act. The respondent filed a reply to the application. After framing the issues, the respondent adduced his evidence by filing an affidavit of examination‑in‑chief on 10 February 2021. As the appellant was absent on 10 February 2021, 14 August 2021 and 1 September 2021, the petition proceeded without cross‑examination and the Presiding Officer of the Family Court disposed of the petition by granting a decree of divorce., Being aggrieved and dissatisfied with the order passed by the Family Court, the appellant prefers the present appeal on the ground that she had appeared in the Hindu Marriage Petition before the Family Court and filed an application under Section 24 of the Act for maintenance pendente lite and expenses of the proceedings till disposal of the main petition. She prayed for maintenance at the rate of Rs 15,000 per month and costs of the proceedings, but the learned trial Court, without deciding her interim application, disposed of the main petition. She further contended that she was not given an opportunity to adduce evidence and to defend the case. The petition was pending for deciding her interim application, but the learned trial Court hurriedly decided the main application and granted divorce, which she claims is illegal and liable to be set aside., Ms. Shilpa Tapadia, learned counsel for the appellant, submitted that without considering her application for maintenance pendente lite and expenses of proceedings, the Hindu Marriage Petition was disposed of without giving an opportunity to the appellant. The learned trial Court ought to have considered that the appellant is a resident of Nanded and was required to attend the case at Akola. She has to maintain two children, and therefore her application for grant of maintenance pendente lite and costs of the proceedings was to be decided. She further submitted that without deciding the said application and without giving a proper opportunity to the appellant to defend the case, the petition was disposed of. The judgment and decree passed by the learned trial Court is illegal and therefore liable to be set aside., Shri Ravikumar Tiwari, learned counsel for the respondent, submitted that the record reveals that the appellant herself withdrew from the company of the respondent without any sufficient reason. Various attempts were made by the respondent, but she did not resume cohabitation. She deserted the respondent by not joining his company. The respondent also filed Hindu Marriage Petition No. 93 of 2016 for restitution. After filing that petition, the appellant still did not join the respondent’s company, leading him to file a petition for divorce. A due notice was served upon the appellant; she appeared and filed a written statement. The Hindu Marriage Petition was fixed for hearing, and the respondent adduced his evidence by affidavit in examination‑in‑chief. The appellant failed to cross‑examine the respondent, and therefore the Court proceeded with the matter and disposed of the petition by granting a decree of divorce. Though sufficient opportunity was granted to the respondent, the appellant failed to appear and cross‑examine the witness and defend herself. No illegality is committed by the learned trial Court, therefore no interference is called for., During the pendency of this appeal the appellant filed Civil Application No. 58 of 2022 for grant of maintenance pendente lite and costs of legal proceedings., The Court heard both sides at length, perused the record and considered the following point: Whether the Family Court is justified in granting a decree of divorce in the absence of evidence of the respondent‑wife? The relationship between the appellant and the respondent is admitted, as is the fact that two children, one son and one daughter, were born of the wedlock. The usual allegations are made by each party against the other in the petitions filed at Akola and Nanded. The respondent alleges cruelty by the appellant‑wife, while the appellant‑wife alleges cruelty by the respondent‑husband. The appellant had filed a petition in the Family Court at Nanded, No. 45/2017, for maintenance under Section 125 of the Criminal Procedure Code. The petition was decided after recording evidence of both sides on merit, granting maintenance of Rs 3,000 per month to each child from 1 April 2017, and rejecting the appellant’s claim for maintenance. The respondent husband filed Hindu Marriage Petition No. 93 of 2016 for restitution and subsequently Petition No. 113 of 2018 under Section 13(1)(i‑a)(i‑b) of the Hindu Marriage Act for divorce on the ground of cruelty and desertion. The appellant‑wife appeared and filed her written statement on 11 January 2019, and on the same day filed an application under Section 24 for maintenance pendente lite. The respondent filed a reply denying the appellant’s contention. The Presiding Officer of the Family Court, Akola framed the issues on 18 September 2019. Without deciding the interim application, the petition was decided by granting a decree of divorce, on the ground that after sufficient opportunity the appellant‑wife remained absent. The record shows that the petition was filed on 5 July 2018; notice was served on 26 November 2018; both parties were absent on several subsequent dates; the appellant‑wife appeared on 11 January 2019 and filed her written statement and interim application; the case was adjourned for counseling; on several occasions both parties were absent; the respondent‑husband was absent on 19 October 2019, 17 December 2019 and 21 February 2020 when the case was fixed for recording evidence; the respondent‑husband’s evidence was adduced on 10 February 2021; the matter was adjourned on 3 March 2021 for further examination‑in‑chief; the appellant‑wife was absent on 1 September 2021; the judgment was delivered on 22 October 2021. After 11 January 2019 the entire record shows that the interim application was pending., Section 24 of the Hindu Marriage Act provides: ‘Maintenance pendente lite and expenses of proceedings. Where in any proceeding under this Act it appears to the Court that either the wife or the husband, as the case may be, has no independent income sufficient for his or her support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner’s own income and the income of the respondent, it may seem to the Court to be reasonable. [Provided that the application for the payment of the expenses of the proceeding and such monthly sum during the proceeding shall, as far as possible, be disposed of within sixty days from the date of service of notice on the wife or the husband, as the case may be.]’ Section 24 is enacted to provide relief by way of maintenance and litigation expenses to a spouse unable to maintain itself during the pendency of the proceedings; it is a benevolent, gender‑neutral provision., In the present case, without disposing of the interim application the petition was disposed of by granting divorce in favour of the husband. The record reflects that not only the appellant‑wife remained absent during the proceedings, but on several occasions both parties were absent, and even the respondent‑husband was absent on some occasions. Though the appellant filed an interim application for maintenance pendente lite, it was not decided and the main petition for divorce was decided without assigning any reason and without following the sixty‑day timeline for interim applications. The opportunity to defend herself was also not given to the appellant. In view of these circumstances, the matter is remanded back to the Family Court, Akola to decide the proceedings afresh, giving both sides an opportunity to adduce evidence. The trial Court is directed to decide the pending application for maintenance pendente lite in accordance with the Hindu Marriage Act. Accordingly, the appeal is allowed, the decree of divorce is set aside, Hindu Marriage Petition No. 113 of 2018 is remanded back to the Family Court, Akola, the trial Court is directed to decide the pending application for maintenance pendente lite, the parties are directed to appear before the Family Court, Akola on 1 October 2022, the proceeding before the Family Court, Akola bearing Hindu Marriage Petition No. 113 of 2018 is expedited, the record and proceedings are to be sent back to the Family Court, Akola, and Civil Application No. 58 of 2022 is disposed of. (Justice Urmila Joshi‑Phalke, Justice A.S. Chandurkar).
id_1339	0	Consumer Complaint Number CC/95/2022 was instituted on 18 January 2022 and the decision was dated 30 October 2023. The complainant is Vineet Marwaha, son of Ved Parkash Marwaha, resident of 5520/1 Modern Housing Complex, Manimajra, Chandigarh 160101. The opposite parties are: Make My Trip (India) Private Limited, 19th Floor, Tower A, B & C, Epitome Building Number 5, DLF Cyber City, Phase III, Gurugram, Haryana 122002, India; Makemytrip India Private Limited (Goibibo), DLF Building Number 5, Tower B, DLF Cyber City, DLF Phase 2, Sector 25, Gurugram, Haryana 122002, India (the complaint against this party was dismissed as withdrawn by order dated 19 December 2022); The Essence Retreat (OYO 18325), Doms Caf Road, Umtav Vado, Calangute, Goa 403516, India; Elvin De Mar, House Number 05/75A, Maddo Vaddo, opposite Flora Residency, Doms Caf Road, Calangute, Bardez, Goa 403516, India; and OYO Rooms (Oravel Stays Private Limited) with registered office Ground Floor 001, Mauryansh Elanza, Shyamal Cross Road, near Parekh Hospital, Satellite, Ahmedabad 380015, Gujarat, India and corporate office 3rd Floor, Orchid Centre, Sector 53, Golf Course Road, Village Haiderpur Viran, Gurugram 122002, Haryana, India., The opposite parties were represented by Shri Vageesh Marwaha, Advocate for the complainant; Shri Gazala Parveen, Advocate as proxy for Shri Nitin Bhasin, Advocate for Opposite Party Number 1; Shri Kartik Parmod Goyal, Advocate as proxy for Shri Puneet Tuli, Advocate for Opposite Parties Number 3 and 4; and the counsel for Opposite Party Number 5., The complainant states that Opposite Party Number 1 is a subsidiary of Opposite Party Number 2 and that he booked The Essence Retreat (Opposite Parties Numbers 3 and 4) for 26 to 30 December 2021 through the Goibibo website on 23 October 2021 by paying Rs 10,432 for a vacation planned for his wife and daughter. On 23 December 2021 the complainant was informed by a representative of Goibibo that the booking had been cancelled because the hotel was non‑operational and the room was not available, and the amount of Rs 10,432 was refunded to his account. The complainant later checked online and found that the same rooms in the same hotel were available for the same dates at a rate of Rs 27,207. He brought this to the attention of the opposite parties but did not receive a satisfactory response. He alleges deficiency in service and unfair trade practice on the part of the opposite parties., In its reply, Opposite Party Number 1 stated that it is merely an intermediary and facilitator between the complainant and Opposite Parties Numbers 3 and 4 and the hospitality service provider OYO. It claimed that it only forwards the amount paid by the complainant to the opposite parties and the hospitality service provider and forwards the confirmed hotel booking to the complainant, and therefore it is not liable for the cancellation or the increase in rates. It denied all other allegations as incorrect., The complaint against Opposite Party Number 2 was dismissed as withdrawn by order dated 19 December 2022., The reply of Opposite Parties Numbers 3 and 4 indicated that they did not appear despite due service, and they were proceeded against ex parte by order dated 2 September 2022., The reply of Opposite Party Number 5 admitted the factual matrix of the case and stated that it operates a platform in the hospitality industry in the name and style of OYO Rooms. According to its policy and business model, it executes agreements with owners of hotels or guest houses and promotes them for booking. It asserted that its role is limited to arranging bookings through its platform and that operational liability rests with the hotel owners. In the present case, it claimed that it had also executed an agreement with the hotel in question but did not accept the pricing at which the room was booked by the complainant and subsequently cancelled the booking. It therefore denied any deficiency on its part and prayed for dismissal of the complaint., No rejoinder was filed. The contesting parties led evidence by way of affidavits and documents. The learned counsel for the contesting parties were heard and the record of the case was examined., The sole grievance of the complainant is that, despite having booked the hotel in advance and paying the full amount, the opposite parties deliberately and arbitrarily cancelled the booked hotel just before the date of travel. Annexure C‑1 shows that the complainant booked the hotel of Opposite Parties Numbers 3 and 4 from 26 December 2021 to 30 December 2021 by paying Rs 10,432 in October 2021, but at the eleventh hour the opposite parties claimed the hotel was non‑operational and refunded the amount. Annexure C‑2 reveals that the same hotel offered the rooms for the same dates at a rate of Rs 26,887, which the complainant checked online on 23 December 2021. Annexure C‑3 further shows that on 24 December 2021 the rate was Rs 27,207, indicating that the opposite parties were increasing the fare due to heavy demand. The opposite parties have failed to place on record any evidence as to why they cancelled the booking or how the same rooms were offered at exorbitant rates. The complainant contends that the motive was profiteering and that the cancellation caused immense physical harassment and mental agony., In view of the above discussion, the consumer complaint is allowed. The opposite parties are directed to pay Rs 35,000 to the complainant as compensation for mental agony and harassment, and Rs 7,000 to the complainant as costs of litigation., The order must be complied with by the opposite parties within thirty days from the date of receipt of the certified copy, failing which they shall pay the amounts mentioned in paragraph (i) with interest at twelve percent per annum from the date of this order until realization, in addition to complying with the direction in paragraph (ii)., Pending miscellaneous applications, if any, are also disposed of. Certified copies of this order shall be sent to the parties free of charge. The seal be consigned.
id_134	0	Dr. P. Varavara Rao, aged 83 years, Indian inhabitant, residing at 419, Himasai Heights, Lane No.6, Jawahar Nagar, Secunderabad, Telangana, and presently at Retreat House, Room No.17, Kane Road, Bandra (West), Mumbai, Maharashtra 400050, is the petitioner. The National Investigation Agency, an agency constituted under the National Investigation Agency Act, 2008, having its address at 7th Floor, Cumbala Hill, MTNL Telephone Exchange Building, Pedder Road, Mumbai 400026, is also a petitioner. The State of Maharashtra is the respondent., The accused Dr. P. Varavara Rao and fourteen other accused have been charge‑sheeted for offences under sections 121, 121(A), 153(A), 505(1)(B), 117, 124(A) read with section 120(B) of the Indian Penal Code and sections 13, 16, 17, 18(B), 20, 38, 39 and 40 of the Unlawful Activities (Prevention) Act, 1967. The Division Bench of the Supreme Court of India, vide order dated 22 February 2021, decided the proceedings filed by the accused, namely Criminal Appeal No. 52 of 2021, Criminal Writ Petition No. 63 of 2021 and Criminal Writ Petition No. 64 of 2021, reported in (2021) 2 Bom CR (Cri.) 483. The Division Bench partly allowed the prayer made by the accused and granted him bail for a limited period of six months on medical ground subject to the conditions set out in paragraph 92 of the judgment., The six‑month period of bail has already expired. Before its expiry, the accused filed Interim Application No. 2018 of 2021 for extension of the temporary bail, Interim Application No. 2779 of 2021 for modification of clause 92(c) of the order dated 22 February 2021, Criminal Writ Petition No. 461 of 2022 seeking permanent bail on medical grounds, and Substantive Criminal Writ Petition No. 6319 of 2021 seeking modification of clause 92(c). Since the questions of fact and law are identical, all the proceedings can be disposed of by a common judgment., The accused states that from the day of his arrest he has been in custody. He is 82 years old and was charge‑sheeted without any evidence. The case is pending before the Special Court and investigation continues even after filing the charge‑sheet, making commencement of trial unlikely for years. He suffers from neurological disorders. He was examined by Dr. Wadia on 26 July 2021, who suspected early Parkinson’s disease. MRI at Nanavati Hospital showed signs of early Parkinson’s, memory retention problems, movement disorders with tremors and gait instability, lacunar infarcts in six major lobes of the brain, and abnormality in the posterior margin of the substantia nigra. He also has heart and other age‑related ailments. His health condition is not compatible with the conditions prevailing in jail, which lack facilities as per the Jail Manual. Due to his old age and ailments, his chances of survival in jail are minimal. After the order of bail, he is suffering from dementia and is at risk of falls., On receipt of the examination report from Nanavati Hospital, the accused filed a separate affidavit stating that the medical opinion and reports have been manipulated by the National Investigation Agency, and therefore have lost their credibility., The accused contends that if this Court is inclined to grant him bail, condition 92(c) of the judgment dated 22 February 2021 may be modified to allow him to stay with his family in Secunderabad, Telangana, where his children, who are doctors, can look after him. Medical facilities in Telangana are provided free of cost, whereas staying in Mumbai is costly., Mr. Vikram Khalate filed an affidavit‑in‑reply on behalf of the National Investigation Agency, which opposes the proceedings. It is contended that the crime committed by the accused and others is very serious. The Elgar Parishad organized by activists of Kabir Kala Manch at Shaniwarwada, Pune on 3 December 2017 prompted enmity between caste groups, leading to violence, loss of lives and statewide agitation. Investigation revealed that senior leaders of the Communist Party of India (Maoist), a banned organization under the Unlawful Activities (Prevention) Act, were in contact with the organizers and the arrested accused to spread Maoist/Naxal ideology and encourage unlawful activities. There is voluminous evidence establishing the complicity of the accused in the larger conspiracy, which is not limited to the State of Maharashtra but affects regions across the country affected by Naxalite movements. The accused have conspired to overthrow the government established by the people., The learned Senior Advocate Mr. Anand Grover submitted that the health condition of the accused in Taloja Central Jail is incompatible with judicial custody, as recorded by the Division Bench on 22 February 2021. The petitioner has a history of piles, prostate enlargement, coronary artery disease, oedema/anasarca (swelling of feet), vertigo, hypertension with prostatic hypertrophy, recurrent urinary tract infection caused by carbapenem‑resistant Enterobacteriaceae (CRE) E. coli, recurrent hyponatremia, serum electrolyte imbalance, brain atrophy with ischemia, cerebral cortical atrophy, migraine and sinusitis. During custody his ailments aggravated due to lack of proper treatment. Timely intervention by this Court sent him to Nanavati Hospital, which saved his life. Post‑release his health worsened; he underwent surgery for umbilical hernia and needs cataract surgery in both eyes. His neurological problem has aggravated, with early Parkinsonism suspected. The lack of medical facilities in Taloja Jail makes survival next to impossible. There are no trained medical officers, nurses, staff or infrastructure as required under the Prisons Manual. The trial will take its own time, and to ensure the accused faces trial, it is necessary to allow him to take his own care. The Senior Advocate further submitted that some doctors at Nanavati Hospital acted to satisfy the interests of the National Investigation Agency rather than the health of the accused, making this a fit case to grant bail on health and medical grounds., Mr. Anil Singh, learned Additional Solicitor General of India, submitted that the accused is not entitled to bail on any ground. He noted that although the earlier Division Bench granted temporary bail for six months for specific reasons, it was not prepared to grant bail outright. No change in circumstances has occurred, and the finding has attained finality, so bail cannot be granted. During the hearing of the interim application for extension of bail, this Court directed the National Investigation Agency to have the accused examined at Nanavati Hospital, which the agency complied with. The Additional Solicitor General took strong exception to the accused’s allegations of manipulation of the report, stating that medical experts have conducted thorough examinations and their opinion does not support the accused’s case. This Court cannot sit in appeal to examine the correctness of the expert medical opinion, and the contention that the health condition is incompatible with jail is not sustainable., The learned Additional Solicitor General reiterated the seriousness of the crime and the evidence collected to establish the accused’s complicity. He submitted that no case has been made out on any permissible ground for bail. The prayer to allow the accused to stay at his home in Secunderabad has already been rejected, and there is no change in circumstances. The accused’s attempt to tarnish the image of the National Investigation Agency to gain sympathy is noted. The writ petition seeking bail is not maintainable, and as per the provisions of the Unlawful Activities (Prevention) Act, the accused must apply for bail before the Special Court., In order to appreciate the rival submissions, we have perused the record and the judgment dated 22 February 2021. While deciding the proceedings, facts that arose after that judgment must be taken into consideration. The Division Bench, based on the evidence, was inclined to grant temporary bail for six months on health grounds. The accused claims there is no change in his health condition and seeks release on bail during the pendency of the trial. Some issues are identical to those before the earlier Division Bench, which recorded findings on those issues., Paragraph 48 of the judgment reads: ‘Even if an application for bail on merits of such under‑trial is pending before this court, that would also not prevent exercise of writ jurisdiction by this court to consider releasing the under‑trial from custody, subject to the under‑trial making out a special case on the ground that his continued incarceration is incompatible with his health condition and that if an order is not issued for his release for some period on health grounds, it would amount to endangering his life.’, The Division Bench made candid observations on the health conditions of the accused and the conditions in Taloja Central Jail. Paragraph 75 states: ‘In view of the aforesaid material and sequence of events, we have come to the conclusion that sending the under‑trial back to Taloja Central Prison would certainly endanger his life. Continued custody at Taloja Central Prison is wholly incompatible with his health condition because the hospital at the prison is not adequately equipped to take care of the under‑trial, given his advanced age and various health conditions.’ Paragraph 79 reads: ‘Upon perusal of the entire set of medical papers, we are of the opinion that although Nanavati Hospital in its latest reports has certified that the under‑trial is fit for discharge, it cannot be concluded that he is fit to be sent back to Taloja Central Prison or the hospital attached to the prison. There is no question of this court sitting in appeal over the opinion given by the experts. Considering the old age, sickness, infirmity and health conditions, as well as the admitted sufferings during incarceration, including infection of Covid‑19, placing the under‑trial back in custody would be incompatible with his health conditions and would endanger his life.’, Paragraph 88 concludes: ‘Although the latest reports dated 12/01/2021 and 27/01/2021 issued by Nanavati Hospital state that the under‑trial appears to have normal cognitive functions and is capable of self‑care, such findings cannot lead to the conclusion that the under‑trial can be sent back to Taloja Central Prison. The offer by the State to keep the under‑trial in the Prison Ward of J.J. Hospital is also not tenable. The under‑trial cannot be granted bail on medical grounds for an unlimited period unconditionally.’, Paragraphs 89 to 91 read: ‘The under‑trial is accused of being a senior member of the banned Communist Party of India (Maoist), an organization that believes in violence and overthrow of the constitutionally established government. The material on record, including letters and communications, indicates that he facilitated financing of violent activities and was involved in providing arms and ammunition for illegal activities. The under‑trial stands accused of serious offences under the Unlawful Activities (Prevention) Act and the Indian Penal Code, which, if proved, can lead to death penalty or life imprisonment. Although his health condition is precarious, sending him back to custody poses a risk that his presence could be used by associates to revive nefarious activities. Accordingly, conditions must be imposed to ensure that the under‑trial or his associates do not take undue advantage of the situation, which would adversely affect the trial.’, It is apparent that despite the Division Bench’s inclination to grant bail for a specific period on medical grounds, it was not prepared to grant unlimited bail during the pendency of the trial, owing to the seriousness of the alleged offences and the risk of the accused’s involvement in further conspiratorial activities. The findings in favour of the accused and against unlimited bail must be reconciled, which supports the submissions of the Additional Solicitor General., During the pendency of Interim Application No. 2018 of 2021 for extension of bail and modification of clause 92(c), this Court, vide order dated 18 November 2021, directed the National Investigation Agency to have the accused examined at Nanavati Hospital and to submit a clear opinion on his medical condition. The in‑charge of Nanavati Hospital was instructed to submit the report. By 29 November 2021 the accused had not been examined, prompting a further direction for immediate examination. Nanavati Hospital, a private super‑specialty hospital, had previously treated the accused, and no doubt was raised about the reliability of its medical officers., The clinical summary dated 15 December 2021 states: ‘Mr. Varavara Rao, 82‑year‑old gentleman, presented for follow‑up on 01‑12‑2021 and was evaluated by multiple consultants. He has minor symptoms such as lack of sleep and slight exhaustion. Vital parameters are normal, though blood pressure is slightly high; the dose of Tab. Cilacar has been increased from 5 mg to 10 mg. He wears an abdominal belt following recent hernia repair. Cardiac, ENT, psychiatric, urological and neurological evaluations have been done. No active management or change in medications is required at this time. Neurological examination shows he is cognitively normal; headaches have resolved. He can perform all activities of daily living. Overall neurological functions are normal except for mild slowness of activities and some handwriting difficulty. Memory functions are intact. An F‑DOPA PET scan is normal. He has been prescribed SOS Tablet Enxoflam for headaches if needed.’, The accused filed a detailed affidavit on the production of this clinical summary, alleging that the medical opinion and papers have been manipulated at the instance of the National Investigation Agency. The learned Senior Advocate, however, submitted that the record clearly indicates early Parkinson’s disease. The affidavit attempts to demonstrate that the reports do not support the National Investigation Agency’s claim of improvement in health. In our opinion, the submissions raising doubt about the clinical summary and medical papers are ill‑founded, and we have found no material to conclude that the expert medical officers acted under the influence of the National Investigation Agency.
id_134	1	The 23 of 33 doctors who have examined the accused for the concerned ailments happen to be experts/specialists in that branch of medicine. It is stated in the affidavit that at the time of examination of the accused, he was not given an opportunity to place on record the problems and difficulties faced by him. In our opinion, it cannot be countenanced at all in the backdrop of the candid medical opinion which is based on the thorough medical examination by the specialists. It is a matter of record that the clinical opinion is against the accused and does not suit the purpose of the accused. Therefore, it is natural for the accused to find ways and means to wriggle out of this report. The accused has blamed the doctors and National Investigation Agency officials. This cannot be accepted. On analysis of the clinical summary and the medical record, we are fully convinced that the doctors have given their independent opinion based on the examination of the accused. The clinical summary therefore cannot be discarded., The clinical summary based on the medical reports is prima facie against the accused. The accused, by filing an affidavit, made an attempt to explain the medical opinion and the reports and to bring home his point that even the findings from the medical opinion and reports indicate that there is no improvement in his health condition and he is not fit to be sent back to Taloja Jail. A perusal of his affidavit shows that the analysis of the clinical summary and the reports has been made in his own way. Based on the analysis, an opinion/conclusion has been arrived at by the accused in his affidavit. It is trite law that the opinion of the expert deserves due weightage. The High Court of Bombay cannot sit in appeal over it and analyse the same to draw a particular conclusion. It is to be noted that the Division Bench in the earlier round of litigation reiterated this legal position. The Division Bench considered the report dated 27 January 2021 from Nanavati Hospital wherein it was stated that the under‑trial was fit for discharge. The Division Bench observed that, though the report indicates otherwise, the report of the expert has to be appreciated in the context of the health condition of the accused as evident from the entire set of medical papers on record. In our considered opinion, the opinion formed by the accused about his health condition sought to be substituted for the opinion based on the clinical summary and medical reports submitted from Nanavati Hospital cannot be accepted., The case of the accused, the clinical summary dated 15 December 2021 and the finding of the earlier Division Bench with regard to the seriousness and severity of the crime need to be appreciated together. The clinical summary clearly indicates that the majority of his health problems have been taken care of due to the treatment. In the teeth of his clinical summary, the submissions advanced by the learned senior advocate that there is no change in the health condition of the accused post order dated 22 February 2021 cannot be accepted. The seriousness and severity of the crime remain until the accused is pronounced not guilty of the crime alleged to have been committed by him. The role attributed to the accused is serious; he is one of the main conspirators. Therefore, in our opinion, on medical ground the accused is not entitled to bail. The learned senior advocate submitted that if the accused is sent back to Taloja Jail then, for want of proper medical aid, chances of his survival would be minimal. In our opinion, there may be deficiencies, but silence on the part of the State could not be a ground to extend benefit to the accused. The High Court of Bombay can take cognizance of the deficiencies pointed out and issue necessary directions to remove them. This issue cannot be left unattended. When such matters are brought to the notice of a court, the court must take a strict view. If a strict view is not taken and appropriate directions are not issued to rectify the deficiencies, all under‑trial prisoners would make a grievance of the same and apply for bail. Instead of setting another precedent, it would be just and proper to set a precedent by issuing appropriate directions to all concerned and making those concerned accountable for lapses and deficiencies in future., The learned senior advocate has relied on a number of judgments to substantiate his contention to grant the prayer made in the writ petitions as well as in the interim applications. We have perused the judgments. All the judgments were cited before the earlier Division Bench and have been considered. On the basis of the proposition of law laid down in those judgments, the Division Bench was not inclined to grant bail to the accused for an unlimited period. In view of the law laid down in the judgments relied on and the appreciation of the same by the earlier Division Bench, we are of the opinion that they would be of no help to the case of the accused to support his prayer for bail., The accused has been in judicial custody. His custody is regulated by the Special National Investigation Agency Court. The accused, either personally or through his advocate, can bring to the notice of the Special National Investigation Agency Court the lapses on the part of the jail administration. The accused can seek direction from the Special National Investigation Agency Court to the jail administration to protect all his constitutional rights guaranteed under Article 21 of the Constitution of India as an under‑trial prisoner. It appears that nothing of this sort has been done before the Special Judge. It is also stated that the trial would take its own time and there is no certainty on this aspect. In our view, this statement is made without ascertaining the factual position. It is not the case of the accused that either he or any of the co‑accused has made an application before the Special Judge for expediting the trial, nor was there a positive response from the Special Judge. The Special National Investigation Agency Court has been established for trying such cases, which by their nature deserve priority. The accused who are under trial are not without weapons. The accused can make a grievance before the Special National Investigation Agency Court about delay in the matter. When such a grievance is made, the Special National Investigation Agency Court is bound to take note of it and conduct the trial expeditiously. In our view, this cannot be the ground to enlarge the accused on bail. On this aspect, the grievance can be addressed by issuing appropriate directions to the presiding officer of the Special National Investigation Agency Court as well as to the Inspector General of Prisons, State of Maharashtra., In view of the statements made by the accused in the application, we expect that the learned presiding officer of the Special National Investigation Agency Court shall see that the trial is expedited and the hearing is conducted on a day‑to‑day basis as mandated by the provisions of Section 309 of the Code of Criminal Procedure. The accused persons and the National Investigation Agency prosecutor would be at liberty to make an application before the Special Judge to commence the trial at the earliest. The grievance made either by the accused or the National Investigation Agency on this count cannot be entertained without a request to the Special Judge to expedite the trial. It is further made clear that all the accused and the prosecution shall extend co‑operation to the learned presiding officer of the Special National Investigation Agency Court. The learned presiding officer shall make a note in the record of non‑co‑operation either from the accused or from the prosecution., It is now necessary to deal with the submissions made by the learned senior advocate on the point that there are no basic medical facilities available in Taloja Jail. In this respect, we may usefully refer to the provisions of Sections 13, 14 and 15 of the Prisons Act, 1894 and the Maharashtra Prisons (Prison Hospital) Rules, 1970. As per Section 5 of the Prisons Act, 1894, the Inspector General is the in‑charge of the prisons in Maharashtra. It is the duty of the Inspector General to ensure compliance with the provisions of the Prisons Act, 1894 and the rules framed under the said Act., We have perused the provisions of the Maharashtra Prisons (Prison Hospital) Rules, 1970. A perusal of the rules shows that a complete mechanism has been provided to take care of the grievance made by the learned senior advocate. The rules are in place, but proper implementation is lacking. In our view, corrective measures can be adopted. If such measures are adopted, the grievance made by the accused in this case as well as by prisons all over Maharashtra could be addressed. It is the duty of the Inspector General of Prisons to ensure compliance with the Prisons Act and the Rules. The Inspector General, being at the helm of affairs, would be held accountable for non‑compliance and lapses in future. Therefore, it would be necessary to issue certain directions to the Inspector General of Prisons, State of Maharashtra., We direct the Inspector General of Prisons, Maharashtra, to collect information from Taloja Central Prison in particular and all prisons in Maharashtra in general about the appointment of medical officers, nursing and other staff and other facilities and provisions required to be made available as per the Maharashtra Prisons (Prison Hospital) Rules, 1970. We also direct the Inspector General of Prisons, Maharashtra, to give his candid opinion on these aspects. Similarly, the Inspector General of Prisons, Maharashtra, shall submit his report with regard to the steps taken by him so far to ensure compliance with the Maharashtra Prisons (Prison Hospital) Rules, 1970. We direct the Inspector General of Prisons, Maharashtra, to ensure that henceforth there should be no scope for prisoners to make grievance about lack of medical facilities and timely medical aid. The same shall be made available strictly in terms of the Maharashtra Prisons (Prison Hospital) Rules, 1970. The Inspector General of Prisons, Maharashtra, shall submit his report to the High Court of Bombay on or before 30 April 2022., The principal district judges of every district are required to pay periodical visits to the prisons. Similarly, the principal district judges are apprised about all the affairs of the prisons in the monthly meeting. The principal district judges shall ensure that the provisions of the Maharashtra Prisons (Prison Hospital) Rules, 1970 are complied with in letter and spirit., The application made by the accused for extension of bail is pending. It has come on record that he has undergone surgery for Umbilical Hernia during this period of temporary bail. It has also come on record that he is required to undergo cataract surgery. The doctor from Nanavati Hospital has opined that the cataract surgery is necessary. On going through the record, we are satisfied that, except for cataract surgery, no other problem has been found to be serious to accept the submissions for granting regular bail to the accused. We are therefore not inclined to grant the prayer for bail. We are also not inclined to modify clause (c) of paragraph 92 of the order dated 22 February 2021 for the same reason. The health condition of the accused is considerably improved. However, since he is required to undergo cataract surgery, we deem it appropriate to extend the temporary bail for a period of three months only from today. It is made clear that this extension has been granted on humanitarian ground and the terms and conditions set out in paragraph 92 of the order dated 22 February 2021 remain applicable., In view of the aforesaid observations, the following order is expedient: (a) Criminal Writ Petition No. 461 of 2022 and Criminal Writ Petition No. 6319 of 2021 stand dismissed; (b) Interim Application No. 2779 of 2021 is rejected; (c) In view of the peculiar facts, temporary bail granted to the accused vide judgment dated 22 February 2021 in Criminal Appeal No. 52 of 2021 as with Criminal Writ Petition No. 63 of 2021 as with Criminal Writ Petition No. 64 of 2021 is extended for a further period of three months from today, on the terms and conditions set out in paragraph 92 of the judgment. On completion of the period of three months, the accused shall surrender to the jail authorities without fail. Interim Application No. 2018 of 2021 is disposed of accordingly; (d) The Inspector General of Prisons, Maharashtra, is directed to collect information from Taloja Central Prison in particular and all prisons in Maharashtra in general about the appointment of medical officers, nursing and other staff and other facilities and provisions required to be made available as per the Maharashtra Prisons (Prison Hospital) Rules, 1970; (e) The Inspector General of Prisons, Maharashtra, shall submit his report prepared on the basis of information and relevant records to the High Court of Bombay on or before 30 April 2022 for issuing further directions; (f) The Inspector General of Prisons, Maharashtra, is directed to ensure strict compliance with the provisions of the Maharashtra Prisons (Prison Hospital) Rules, 1970 and shall see that on this count no grievance is made by the prisoners; (g) The presiding officer of the National Investigation Agency Court is requested to expedite hearing of the trial and conduct the same on a day‑to‑day basis as mandated by the provisions of Section 309 of the Code of Criminal Procedure; (h) The principal district judges in Maharashtra are requested to pay attention to this aspect at the time of periodical visits to prison and ensure that the provisions of the Maharashtra Prisons (Prison Hospital) Rules, 1970 are complied with in letter and spirit; (i) The judicial registrar shall forward a copy of this order to the Inspector General of Prisons, State of Maharashtra, the presiding officer of the Special National Investigation Agency Court, Mumbai and to all the principal district judges in Maharashtra; (j) All the accused and the prosecution shall extend co‑operation to the learned presiding officer of the Special National Investigation Agency Court; (k) The learned presiding officer shall make a note in the record of non‑co‑operation either from the accused or from the prosecution.
id_1342	0	Government of India Ministry of Law and Justice Department of Justice (Appointments Division) Jaisalmer House, 26, Man Singh Road, New Delhi-110011. Dated: 2nd February 2024., In exercise of the powers conferred by Article 223 of the Constitution of India, the President is pleased to appoint Shri Justice Gurmeet Singh Sandhawalia, Judge of the Punjab and Haryana High Court, to perform the duties of the office of the Chief Justice of that High Court with effect from the date Ms. Justice Ritu Bahri relinquishes the charge of Acting Chief Justice of Punjab and Haryana High Court consequent upon her elevation as Chief Justice of the Uttarakhand High Court., (Naray Prasad) Deputy Secretary to the Government of India Telephone: 011-23072149, To The Manager, Government of India Press, Minto Road, New Delhi. No K-11019/04/2024-US.I/II Dated 02.02.2024, Copy to: Shri Justice Gurmeet Singh Sandhawalia, Judge of the Punjab and Haryana High Court through the Registrar General, Punjab and Haryana High Court, Chandigarh; The Secretary to Governor of Punjab, Chandigarh; The Secretary to Governor of Haryana, Chandigarh; The Secretary to Chief Minister of Punjab, Chandigarh; The Secretary to Chief Minister of Haryana, Chandigarh; Secretary to the Chief Justice, Punjab and Haryana High Court, Chandigarh; The Chief Secretary, Government of Punjab, Chandigarh; The Chief Secretary, Government of Haryana, Chandigarh; The Registrar General, Punjab and Haryana High Court, Chandigarh; The Accountant General, Punjab, Chandigarh; The Accountant General, Haryana, Chandigarh; The President's Secretariat, Chief Administrator II Section, Rashtrapati Bhavan, New Delhi; PS to Principal Secretary to the Prime Minister, Prime Minister's Office, South Block, New Delhi; Registrar (Confidential), office of Chief Justice of India, 7, Krishna Menon Marg, New Delhi; Technical Director, National Informatics Centre, Department of Justice, with a request to upload on the website of the Department.
id_1346	0	Appeal No. 17 of 2021 presented on 01-02-2021, registered on 01-02-2021, decided on 11-04-2023. Duration: 2 years, 2 months, 10 days. Appellant: The State of Maharashtra. Respondents. Advocate Manoj More for appellant. Advocate Chitra Phadke for respondents. CORAM: His Honourable Additional Sessions Judge, Shri S. N. Salve. Courtroom Number 15. Date: 11 April 2023., This appeal under Section 29 of the Protection of Women from the Domestic Violence Act, 2005 (Domestic Violence Act) is filed by the appellant challenging the impugned order passed under Section 23 of the Domestic Violence Act below Exhibit 4 whereby the Learned Metropolitan Magistrate, 26th Court, Borivali, Mumbai dismissed the application for interim custody of her daughter., In short, it is the contention of the appellant that she filed an application under Section 12 of the Domestic Violence Act coupled with an application under Section 21 of the Domestic Violence Act for interim custody of her daughter. After hearing both sides, the Learned Metropolitan Magistrate passed the impugned order dated 02 January 2021 rejecting the application for interim custody of her daughter. The appellant, being aggrieved by the impugned order, preferred this appeal., According to the appellant, the impugned order passed by the Learned Metropolitan Magistrate is not just, proper and legal on the following grounds. The learned Metropolitan Magistrate has not considered that on 07 December 2019 the minor daughter, less than five years old, was illegally and forcefully removed from the physical custody of the appellant who is the natural guardian and biological mother. The appellant alleges that the Learned Metropolitan Magistrate erroneously took into consideration allegations made against her and passed the impugned order. The appellant further states that the Learned Metropolitan Magistrate erred in not considering the fact that on 25 January 2020 the respondent No. 1 verbally abused her at her daughter’s school where she had gone to attend her recital program. The appellant contends that the Learned Metropolitan Magistrate has not considered the facts of the case and the documents placed on record and committed error in rejecting the application – Exhibit 4 preferred by her. The appellant prays that the impugned order be quashed and set aside., Respondent No. 1, by filing a reply, strongly opposed the appeal. It is submitted by Respondent No. 1 that the appellant has no desire to cohabit with him and that the appellant will have a bad influence on the minor daughter, which will jeopardize the welfare and interest of the minor daughter. Respondent No. 1 has also made certain allegations against the appellant and supports the impugned order passed by the Learned Metropolitan Magistrate. According to Respondent No. 1, the impugned order is legal, proper and correct and requires no interference. The respondent therefore prays that the appeal be dismissed., The points for determination along with the findings are as follows: 1. Whether the appellant proves that the respondents have committed acts of domestic violence? – In the negative. 2. Whether the appellant is entitled to temporary custody of her daughter? – In the negative. 3. Whether the impugned order warrants any interference? – In the negative. 4. Order: Appeal is dismissed., It is not in dispute that the appellant and the respondent are not in a domestic relationship. In the appellant’s application before the Learned Trial Court, she averred that Respondent No. 1 had committed acts of domestic violence. The Learned Trial Court observed that the appellant lodged a report with the Vile Parle Police Station which was investigated by police and the report was found to be false. The Learned Metropolitan Magistrate observed that Respondent No. 2 molested her in the year 2010 but until 2019 she was not residing in the same house. No complaint was made to the police till 2019. Considering the allegations, the Learned Trial Court observed that the appellant failed to prove incidents of domestic violence. The Learned Metropolitan Magistrate also considered the documents placed on record by the respondents in support of their allegations against the appellant and rightly observed that there are no incidents of domestic violence committed by the respondents., Regarding custody of the daughter, the Learned Trial Court observed that the appellant is a working woman, Respondent No. 1 is also a working person, Respondent No. 1 resides in a joint family whereas the appellant resides as a paying guest. If the appellant continues to work, who will take care of the child? The Learned Trial Court also considered the allegations against the appellant about her character narrated by the respondent in his affidavit. The allegations are prima facie supported by the documents placed on record. Considering these allegations, the Learned Metropolitan Magistrate rightly observed that at this stage it would not be just and proper to hand over custody of the daughter to the appellant. Accordingly, the Learned Metropolitan Magistrate rightly rejected the prayer of the appellant for interim custody of the daughter., In view of the negative findings on points 1 and 2, the appellant has failed to establish incidents of domestic violence and is not entitled to interim custody of her daughter. Therefore, the impugned order warrants no interference. The appeal, being devoid of merit, is dismissed. The following order is passed: 1) Appeal No. 17 of 2021 is dismissed. 2) Inform the Learned Trial Court accordingly. 3) Accordingly, Appeal No. 17 of 2021 stands disposed of., Date: 11 April 2023. Additional Sessions Judge, City Civil and Sessions Court, Borivali Division, Dindoshi, Mumbai. Name of the Judge (with Courtroom Number): His Honourable Judge Shri S. N. Salve (Courtroom Number 15). Date of pronouncement of judgment/order: 11 April 2023. Judgment/Order signed by the Principal Officer on 12 April 2023.
id_1347	0	Leave granted. A Division Bench judgment of Rajasthan High Court, dated 25.11.2021, is under challenge before the Supreme Court of India. Apart from the appeals, there are three writ petitions as well before the Supreme Court of India, on the same issue. All the same, while dealing with these cases, for facts, we would be referring to Civil Appeal Special Leave Petition (Civil) No. 20743 of 2021 Devesh Sharma versus Union of India, which arises out of the order dated 25.11.2021 passed by the Rajasthan High Court in D.B. Civil Writ Petition No. 2109 of 2021., What lies at the core of the dispute before the Supreme Court of India is the notification dated 28.06.2018, issued by the National Council for Teacher Education, made in exercise of its powers under Section 23(1) of the Right to Education Act, 2009. This notification made Bachelor of Education degree holders eligible for appointment to the post of primary school teachers (classes I to V). In spite of the above notification, when the Board of Secondary Education, State of Rajasthan, issued an advertisement on 11.01.2021 for the Rajasthan Teacher Eligibility Test (RTET Level‑1), it excluded Bachelor of Education degree holders from the list of eligible candidates. This action of the Rajasthan Government was challenged before the Rajasthan High Court. The petitioner Shri Devesh Sharma has a Bachelor of Education degree, and as per the notification dated 28.06.2018, he was eligible, like many other similar candidates. Consequently, he filed his petition before the Rajasthan High Court, inter alia, praying that the advertisement dated 11.01.2021 be quashed, as it was in violation of the notification dated 28.06.2018., Apart from the above batch of petitioners, there was another set of petitioners, the candidates who are Diploma holders in Elementary Education (D.El.Ed.), which was the only teaching qualification required for teachers at primary level, and who are aggrieved by the inclusion of Bachelor of Education qualified candidates. They also filed writ petitions before the Rajasthan High Court challenging the legality of the notification dated 28.06.2018. The State of Rajasthan supported these second batch of candidates before the Rajasthan High Court, as it would do before the Supreme Court of India., Out of the three writ petitions before us, two (Writ Petition No. 137 of 2022 and Writ Petition No. 881 of 2022) are challenging the notification dated 28.06.2018 and the subsequent notifications issued by the Governments of Bihar and Uttar Pradesh respectively calling for application from eligible candidates including Bachelor of Education. Writ Petition No. 355 of 2022 again challenges the notification dated 28.06.2018. Special Leave Petition (Civil) No. 22923 of 2022 is against an interim order of the Calcutta High Court which denied relief to the petitioners who were seeking a stay of the notification dated 28.06.2018., Hence the question of law to be answered in these cases is whether the National Council for Teacher Education was right in including Bachelor of Education qualification as an equivalent and essential qualification for appointment to the post of primary school teacher (Level‑1). The Rajasthan High Court in the impugned judgment has quashed the notification dated 28.06.2018, holding Bachelor of Education candidates to be unqualified for the posts of primary school teachers (Level‑1)., On behalf of the petitioners, we have heard learned Senior Counsel Mr. Paramjit Singh Patwalia, who has assailed the judgment of the Rajasthan High Court. Mr. Patwalia appeared for the Bachelor of Education qualified candidates and would support the notification dated 28.06.2018, and the petitioners who had challenged their exclusion before the Rajasthan High Court. Ms. Meenakshi Arora, learned senior counsel, was also heard for the appellants. The learned counsel would argue that the Rajasthan High Court failed to consider that the notification dated 28.06.2018 was a policy decision taken by the National Council for Teacher Education after the Central Government had issued directions in this regard, under Section 29 of the National Council for Teacher Education Act, and the Rajasthan High Court was wrong in interfering with the policy decision of the Central Government. The National Council for Teacher Education broadly agrees with the submissions made by Shri Patwalia and Ms. Arora while assailing the impugned judgment., We have also heard the submissions by learned Senior Counsel Mr. Kapil Sibal and Dr. Manish Singhvi, who appeared for the diploma holders and the State of Rajasthan respectively, who would argue, inter alia, that the National Council for Teacher Education being an expert body had to take an independent decision in this case, based on the objective realities. Even if the National Council for Teacher Education had to follow the directions of the Central Government, it must demonstrate that these directions had been independently considered by it and not implemented in a mechanical manner., On behalf of the Union of India we have heard learned Additional Solicitor General Ms. Aishwarya Bhati and Mr. Vikramjeet Banerjee. They would argue that the impugned judgment has been passed ignoring the powers of the Central Government given both under the Right to Education Act as well as the National Council for Teacher Education Act. Moreover, an objection has also been raised that the Union of India was not even made a party in the proceedings before the Rajasthan High Court., During the course of hearing, the Supreme Court of India had passed an order dated 24.08.2022, granting liberty to the Board of Secondary Education for different states and other stakeholders to be impleaded as intervenors. Pursuant to this order, several interlocutory applications were filed which are being heard along with these appeals., The Indian Constitution is first and foremost a social document, writes Granville Austin. The rights contained in Part III and the Directive Principles of State Policy contained in Part IV together establish conditions which further the goal of this social revolution. Austin calls Part III and Part IV of the Constitution the conscience of the Constitution., Free and compulsory education for children was a part of the social vision of the framers of our Constitution. Elementary education for children is today a fundamental right enshrined under Article 21A of Part III of the Constitution of India. Every child up to fourteen years of age has a fundamental right to free and compulsory elementary education. But free and compulsory elementary education is of no use unless it is also a meaningful education. In other words, elementary education has to be of good quality, and not just a ritual or formality., Our progress in achieving this constitutional goal has been slow. Prior to the 86th Amendment, the Right to Education was in Part IV of the Constitution (Article 45) as a Directive Principle of State Policy. The goal set out in Article 45 of the Constitution, as it stood at that time, was to make elementary education free and compulsory for all children up to the age of fourteen years, within ten years of the promulgation of the Constitution. It would take much more than ten years to achieve this goal., The 1986 National Policy on Education, modified in 1992, declared that free and compulsory elementary education of satisfactory quality be given to all children up to the age of fourteen years, before the nation entered the 21st century., Later in the seminal judgment of this Court in Unni Krishnan J.P. versus State of Andhra Pradesh and Others (AIR 1993 SC 2178), it was held that children have a fundamental right to free education till they complete the age of fourteen years., In 1997, the 83rd Constitutional Amendment Bill was introduced in Parliament to insert a new article in Part III of the Constitution of India, which became Article 21A. The Parliamentary Standing Committee on Human Resources Development welcomed the amendment and emphasized the quality of elementary education. The committee noted that the Bill was silent on the quality of education and suggested that there should be a reference to quality of education. The Secretary, Education agreed that the quality aspect also has to be seen. Education must mean quality education and anything less than that should not be called education. Therefore, the emphasis would be through strengthening the teacher education content, the Secretary stated., Finally, by way of the Constitution (86th Amendment) Act of 2002, Article 21A was inserted as a fundamental right in Part III of the Constitution, effective from 01.04.2010. Article 21A reads: '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.', In order to fulfil the above mandate, the Right to Education Act, 2009, was passed by Parliament on 20 August 2009, which became effective from 01.04.2010. The object and reasons of the Act declare that the Act seeks to achieve not merely free and compulsory elementary education, but also the quality of this education. The preamble to the Act states that every child has a right to be provided full‑time elementary education of satisfactory and equitable quality in a formal school which satisfies certain essential norms and standards., When the validity of the Act was challenged before the Supreme Court of India, this Court, while upholding its validity, emphasized that the Act was intended not only to impart free and compulsory education to children, but also to impart quality education., The Act provides several provisions to ensure quality education, such as the right to be admitted in a neighbourhood school, no denial of admission, and prohibition of physical punishment and mental harassment., The Act sets down certain norms and standards which have to be followed in elementary schools, with the purpose of providing a meaningful and quality education. These include infrastructure requirements, a pupil‑teacher ratio of 30:1, and the absolute necessity of trained as well as qualified teachers., Free and compulsory education for children becomes meaningless if we compromise on its quality. We must recruit the best qualified teachers. A good teacher is the first assurance of quality education in a school. Any compromise on the qualification of teachers would necessarily mean a compromise on the quality of education. Jacques Barzun, the American educationalist and historian, in his seminal work 'Teacher in America', says teaching is not a lost art, but the regard for it is a lost tradition. Though this comment was for higher education in America, it is equally relevant here to the treatment of primary education in our country., Elementary education in India is at two levels: primary level (class I to V) and senior primary level (class VI to VIII). Presently we are only concerned with the primary level of education., Section 23 of the Right to Education Act is extremely important as it provides who shall determine the qualifications of teachers and who can relax these qualifications, and for how long. It reads: 'Section 23. Qualifications for appointment and terms and conditions of service of teachers. (1) Any person possessing such minimum qualifications, as laid down by an academic authority authorised by the Central Government, by notification, shall be eligible for appointment as a teacher. (2) Where a State does not have adequate institutions offering courses or training in teacher education, or teachers possessing minimum qualifications as laid down under sub‑section (1) are not available in sufficient numbers, the Central Government may, if it deems necessary, by notification, relax the minimum qualifications required for appointment as a teacher, for such period not exceeding five years, as may be specified in that notification: Provided that a teacher who, at the commencement of this Act, does not possess minimum qualifications as laid down under sub‑section (1), shall acquire such minimum qualifications within a period of five years. [Provided further that every teacher appointed or in position as on 31 March 2015, who does not possess minimum qualifications as laid down under sub‑section (1), shall acquire such minimum qualifications within four years from the date of commencement of the Right of Children to Free and Compulsory Education (Amendment) Act, 2017.] (3) The salary and allowances payable to, and the terms and conditions of service of, teachers shall be such as may be prescribed.', Sub‑section (1) empowers the academic authority to prescribe qualifications for teachers in elementary schools. Sub‑section (2) empowers the Central Government to relax the minimum qualifications prescribed by the academic authority under certain circumstances and for a limited period. The academic authority under Section 23(1) of the Act is the National Council for Teacher Education, which brought a notification on 23.08.2010 laying down the necessary qualifications for teachers, both at primary and upper primary level. Inter alia, this notification prescribes the following minimum qualifications for classes I‑V: (i) Senior secondary (or its equivalent) with at least 50% marks and a two‑year Diploma in Elementary Education (by whatever name known); (ii) Senior secondary with at least 45% marks and a two‑year Diploma in Elementary Education; (iii) Senior secondary with at least 50% marks and a four‑year Bachelor of Elementary Education; (iv) Senior secondary with at least 50% marks and a two‑year Diploma in Education (Special Education); and (v) Pass in the Teacher Eligibility Test (TET) conducted by the appropriate Government in accordance with the guidelines framed by the National Council for Teacher Education. The 23.08.2010 notification does not provide Bachelor of Education as a qualification for appointment to the post of primary school teachers. Later this notification was amended, but Bachelor of Education was never included, up to the impugned notification dated 28.06.2018, as an essential qualification for teachers of primary school (classes I to V). A candidate for the post of a teacher in a primary school was required to have: (a) pass higher secondary level; (b) a Diploma in Elementary Education (D.El.Ed.) by whatever name it was called in that State; (c) pass the Teacher Eligibility Test or TET., The academic authority, the National Council for Teacher Education, considered the appointment of trained and qualified teachers as an absolute necessity in primary schools. Therefore the qualification prescribed for a teacher in primary school was a Diploma in Elementary Education, not any other qualification including Bachelor of Education. The Teacher Eligibility Test further tests the skills of a candidate to handle students at primary level. The pedagogical approach required from a teacher at primary level is unique, as these are the initial formative years where a student has just stepped inside a classroom and needs to be handled with care and sensitivity. A candidate who has a Diploma in Elementary Education is trained to handle students at this level, having undergone a pedagogical course specifically designed for this purpose. Section 29 of the Right to Education Act reads: '29. Curriculum and evaluation procedure. (1) The curriculum and the evaluation procedure for elementary education shall be laid down by an academic authority to be specified by the appropriate Government, by notification. (2) The academic authority, while laying down the curriculum and the evaluation procedure, shall take into consideration: (a) conformity with the values enshrined in the Constitution; (b) all‑round development of the child; (c) building up child's knowledge, potentiality and talent; (d) development of physical and mental abilities to the fullest extent; (e) learning through activities, discovery and exploration in a child‑friendly and child‑centered manner; (f) medium of instruction shall, as far as practicable, be in child's mother tongue; (g) making the child free of fear, trauma and anxiety and helping the child to express views freely; (h) comprehensive and continuous evaluation of child's understanding of knowledge and his or her ability to apply the same.' As we can see, the curriculum and evaluation procedure require a pedagogical approach best given by teachers trained to deal with child students. A person with a Bachelor of Education qualification has been trained to impart teaching to secondary and higher secondary level students and is not expected to impart training to primary level students., The Appendix 2 to the National Council for Teacher Education Regulations, 2009 spells out the aim of Elementary Education. It states: 'The Diploma in Elementary Education (D.El.Ed) is a two‑year professional programme of teacher education. It aims to prepare teachers for the elementary stage of education, i.e., classes I to VIII. The aim of elementary education is to fulfill the basic learning needs of all children in an inclusive school environment bridging social and gender gaps with the active participation of the community.' The same regulation in its Appendix 4 describes Bachelor of Education as follows: 'The Bachelor of Education programme, generally known as B.Ed., is a professional course that prepares teachers for upper primary or middle level (classes VI‑VIII), secondary level (classes IX‑X) and senior secondary level (classes XI‑XII). The programme shall be offered in composite institutions as defined in clause (b) of the Regulations.' It is therefore clear that a Bachelor of Education course is not designed for teaching at primary level. Moreover, the inclusion of Bachelor of Education candidates for primary classes is contrary to several decisions of this Court, which has consistently held that Diploma in Elementary Education and not Bachelor of Education is the proper qualification in primary schools., In Dilip Kumar Ghosh and Others versus Chairman and Others, this Court had to decide whether a Bachelor of Education degree candidate can be equated with a candidate who holds training in primary school teaching. The contention of the appellants, who were Bachelor of Education candidates, was that their course equips them to teach primary classes. The Court rejected this contention. In paragraph 9 the Court observed: 'In Bachelor of Education curriculum such subjects like child psychology are not found. On the other hand, the curriculum is of a generic nature and deals with subjects like the principle of educational‑curriculum studies, educational psychology, development of education in modern India, social organization and instructional methods, etc.' In paragraph 10 the Court stated: 'For teaching in the primary school, therefore, one must know child psychology and development of a child at a tender age. As already noticed, the candidates like the appellants who are trained in Bachelor of Education degree are not necessarily equipped to teach the students of primary class. They are not trained and equipped to understand the psychology of a child of tender age.' In P.M. Latha and Another versus State of Kerala and Others, the argument that Bachelor of Education qualification is a higher qualification than Diploma in Elementary Education was rejected. The Supreme Court in Yogesh Kumar v. Government of NCT, Delhi held that although Bachelor of Education is a well‑recognised qualification in the field of teaching, it equips a candidate to teach higher classes, not classes at primary level., Bachelor of Education is not a qualification for teachers at primary level of schooling. The pedagogical skills and training required from a teacher at primary level are not expected from a Bachelor of Education trained teacher. They are trained to teach classes at higher level, post‑primary, secondary and above. For primary level (class I to V) the training is Diploma in Elementary Education or what is known as diploma in elementary education. By implication, the inclusion of Bachelor of Education as a qualification amounts to lowering the quality of education at primary level, which was an important component of the elementary education movement in this country., We are also conscious that, till the notification dated 28.06.2018, the consistent policy of the National Council for Teacher Education had been to exclude Bachelor of Education candidates from the eligibility criteria of primary school teachers. In the 23.08.2010 notification, the first given by the National Council for Teacher Education in its capacity as the academic authority under Section 23 of the Right to Education Act, Bachelor of Education qualified teachers were not considered for primary classes. All the same, purely in order to equip the various State governments to establish enough training colleges/centres for imparting specialised training for elementary teachers, the Bachelor of Education candidates were to continue for a very limited period., During the initial period starting from 2010 onwards, when the Act and the subsequent order of the National Council for Teacher Education laid down the qualifications for primary school teachers throughout the country, Bachelor of Education qualified teachers were kept out from the purview of eligibility for teachers in primary schools as Bachelor of Education was not considered a qualification for teachers at primary level. The inherent pedagogical weakness in Bachelor of Education courses for primary classes is well recognised, and it is for this reason that the impugned notification provides that Bachelor of Education trained teachers will have to undergo a six‑month training in elementary classes within the first two years of their appointment. In this background, the inclusion of Bachelor of Education candidates for primary level classes is beyond our comprehension. We have seen that the need for quality and meaningful primary education was emphasized by the legislature as well as by the academic authority throughout. In primary education, any compromise on quality of education would mean going against the very mandate of Article 21A and the Act., Myron Weiner, in his book on Child Labour in India, links child labour problems in India to the lack of effective measures in the past in the field of elementary education. Great care must be taken to nurture these institutions as our future takes shape in these classes. Victor Hugo famously said, 'One who opens a school door, closes a prison.' Children still working in hazardous environments and juveniles in conflict with law point towards the weakness in our elementary education system, both in its accessibility and its quality. The pedagogical skills of a teacher must be given a very high priority. But our priority seems to be different. It is not to impart quality education, but to provide more job avenues to Bachelor of Education trained candidates, as this seems to be the only reason for their inclusion, in presence of overwhelming evidence that Bachelor of Education course is not a suitable course for primary classes., The material placed before the Supreme Court of India in the form of official communications and meetings at the highest level makes it clear that the decision taken by the National Council for Teacher Education is not an independent decision of an expert body created by statute and mandated to take independent decisions. The aim of the National Council for Teacher Education is to improve the standard of education and not to provide further avenues for employment to Bachelor of Education trained teachers. It is also noted that teachers trained in elementary education can be employed only as teachers in elementary schools and nowhere else, whereas Bachelor of Education qualified teachers can be employed in senior elementary classes (VI to VIII), as well as secondary and higher secondary classes. It is therefore not fair on the Diploma holders, who will now see the only space available for them shrinking further., The notification dated 28 June 2018, issued by the National Council for Teacher Education, is reproduced below: National Council for Teacher Education Notification New Delhi, 28 June 2018. F. No. NCTE‑Regl 012/16/2018 – In exercise of the powers conferred by sub‑section (1) of Section 23 of the Right to Children to Free and Compulsory Education Act, 2009 (35 of 2009) and in pursuance of notification number S.P. 750(E), dated 31 March 2010 issued by the Department of School Education and Literacy, Ministry of Human Resource Development, Government of India, the National Council for Teacher Education hereby makes the following further amendments to the notification number F.N. 61‑03/20/2010/NCTE/(N&S), dated 23 August 2010 published in the Gazette of India, Extraordinary, Part III, Section 4, dated 25 August 2010 hereinafter referred to as the said notification: (1) In the said notification, in paragraph 1 in sub‑paragraph (i), in clause (a) after the words and brackets 'Graduation and two year Diploma in Elementary Education (by whatever name known)', the following shall be inserted, namely: 'Graduation with at least 50% marks and Bachelor of Education (B.Ed.)'. (2) In the said notification in paragraph 3, for sub‑paragraph (a), the following sub‑paragraph shall be substituted: '(a) who has acquired the qualification of Bachelor of Education from any NCTE recognised institution shall be considered for appointment as a teacher in classes I to V provided the person so appointed as a teacher shall mandatorily undergo a six month bridge course in Elementary Education recognised by the NCTE, within two years of such appointment as primary teacher (Emphasis supplied).', The sequence of events, now well established by the documents placed before the Rajasthan High Court and before the Supreme Court of India, makes it clear that the decision to include Bachelor of Education as a qualification was apparently triggered by a letter of the Commissioner of Kendriya Vidyalaya Sangathan, who requested that since in the primary classes of Central Schools sufficient number of trained Diploma holders are not available, they may be permitted to appoint Bachelor of Education qualified teachers, who are readily available. The Ministry took cognizance of this letter, meetings were held and ultimately it directed the National Council for Teacher Education to appoint Bachelor of Education.
id_1347	1	Trained teachers not just in central schools but in primary schools throughout the country, which would include State run schools. A meeting was held on 28 May 2018 in the Ministry of Human Resource Development, headed by the Minister concerned. In the meeting it was decided to recognise Bachelor of Education (B.Ed.) as an additional eligibility criterion for the appointment to the post of primary teachers in Kendriya Vidyalaya Sangathan (KVS) schools. The next day, on 29 May 2018, a note stated that since B.Ed. qualified candidates were eligible to be appointed as primary teachers in KVS schools, there should be no objection to implement this direction in other schools as well. These communications culminated in a letter dated 30 May 2018 issued by the Ministry of Human Resource Development, which is an autonomous body under the Ministry of Education, Government of India, that looks after the management of Central Schools throughout the country. The letter was in the form of a direction issued under Section 29 of the National Council for Teacher Education (NCTE) Act which required NCTE to amend the eligibility criteria to include B.Ed. qualified candidates as primary teachers., The minutes of the meeting dated 28 May 2018 disclose the reason why B.Ed. should be included as a qualification. They state that the matter was considered in the Ministry and Human Resource Management (HRM) approved the proposal of KVS to recruit primary teachers with higher qualification (i.e., Bachelor of Arts/Bachelor of Science, B.Ed. plus Teacher Eligibility Test (TET)). HRM also directed that NCTE may amend the qualification and make Bachelor of Arts/Bachelor of Science, B.Ed. eligible for teaching at primary level with the provision of completing a pedagogical module within two years of joining the service. These directions were conveyed to NCTE on 12 April 2018, however the action was still pending on their part., The matter was again discussed in detail in the meeting held on 28 May 2018 chaired by HRM and attended by the Special Secretary and the KVS Commissioner. The KVS Commissioner raised the issue of insufficient number of candidates applying for the post of primary teachers and that candidates were applying from only a few states rather than across the country. It was informed by the Member Secretary of NCTE that approximately 7.5 lakh seats are available for Diploma in Elementary Education (D.El.Ed.) across the country, of which 50 per cent are filled. However, the number of TET‑passed D.El.Ed. candidates would be much less as the TET pass rate varies from 6 per cent to 16 per cent. HRM also pointed out the need for better equipped teachers to ensure quality education in schools. Recruitment of teachers with higher qualifications will ultimately be beneficial and in the interest of the students., In addition, NCTE will roll out a four‑year integrated B.Ed. course from the next academic year, therefore the prevailing D.El.Ed./B.Ed. courses will phase out in a time‑bound manner. A similar request has also been received from the State of Uttarakhand. In view of the above discussions, HRM directed NCTE to change its regulations. Directions were required to be given under Section 29 of the NCTE Act, 1993. Section 29 provides that the Council shall be bound by such directions on questions of policy as the Central Government may give in writing from time to time, and that the decision of the Central Government as to whether a question is one of policy shall be final., The letter dated 30 May 2018 from the Government of India, Ministry of Human Resource Development, Department of School Education & Literacy, Shastri Bhawan, New Delhi, addressed to the Chairperson of NCTE, reads: 'Kindly refer to the letter of even no. dated 12 April 2018 regarding the request of Kendriya Vidyalaya Sangathan for recruiting primary teachers with higher qualifications i.e., Bachelor of Arts/Bachelor of Science, B.Ed. plus TET pass and letter no. NCTE‑REG1012/16/2018‑US (Regulation) dated 23 May 2018 received from NCTE regarding the same. The above request has been considered in this Ministry. In order to safeguard the interest of the students and ensure the quality of education, the competent authority has decided to agree to the request of KVS to recruit primary teachers with higher qualifications. The insufficient number of eligible D.El.Ed. candidates due to low pass percentage of the TET examination has also become an issue for recruitment of primary teachers. Further, with the rollout of the four‑year integrated B.Ed. course from the next academic year, the existing D.El.Ed./B.Ed. courses will be phased out in due course of time. NCTE, vide their letter No. NCTEREG1012/16/2018‑US (Regulation) dated 23 May 2018, stated that the Ministry may consider implementing the direction in the detailed noting of the Honourable Minister of Human Resource Development, Government of India. In view of the facts presented by the Commissioner, KVS and since NCTE did not have any objection to permit KVS schools to recruit primary teachers with higher qualifications, there should be no objection to extending this to other schools. Therefore, considering the powers vested in the Ministry under Section 29 of the NCTE Act, 1993, NCTE Regulation 25.08.2010 (Determining qualification of teacher to be appointed at primary level Classes 1st to 5th) shall be amended to include that any person who has acquired the qualification of B.Ed. from any NCTE‑recognised course will also be considered for appointment as a teacher in classes 1st to 5th provided the person so appointed shall mandatorily undergo a six‑month bridge course, recognised by NCTE, within two years of such appointment as primary teacher. It is therefore requested that the draft notification to amend the NCTE regulations be submitted to this Ministry as a matter of urgency.', The notification dated 28 June 2018 issued by NCTE, which has already been referred to above, expanded the original exercise of considering B.Ed. qualified candidates for primary classes in Central schools to include all primary schools throughout the country. The stated reasoning was that B.Ed. qualified candidates are better suited for appointment as teachers in primary schools because they have higher qualifications, and that this would address the dearth of qualified TET candidates. The meeting minutes suggested that only 6 per cent to 16 per cent of candidates appearing for the TET examination qualify. However, B.Ed. as a qualification has not passed the basic pedagogical threshold for teaching primary classes. The notification itself mandates that all B.Ed. qualified teachers appointed to teach primary level classes must mandatorily undergo a pedagogical course for elementary classes within two years of their appointment, indicating the inherent pedagogical weakness of the B.Ed. qualification for primary education., In Society for Unaided Private Schools of Rajasthan v. Union of India & Anr., the Supreme Court of India, while upholding the validity of the Right to Education Act, held that primary education, now a fundamental right under Part III of the Constitution, must be meaningful and not merely a formality. The Court explained that the Diploma in Elementary Education (D.El.Ed.) was placed as an essential qualification for teachers in primary schools to ensure that only teachers trained to impart education to children at the primary level are appointed. The Court emphasized that a well‑trained teacher in elementary school is vital, and that the D.El.Ed. specifically trains a person to teach children at the primary level. By contrast, the Bachelor of Education is a different qualification and does not equip a teacher to teach at the primary level. This distinction is implicitly recognised in the 28 June 2018 notification, which still requires a mandatory six‑month bridge course in elementary education for B.Ed. qualified teachers., The Rajasthan High Court, in its impugned judgment, struck down the 28 June 2018 notification on several grounds. It held that the notification was unlawful because it was issued under a direction of the Central Government, a power the Central Government did not possess under subsection (1) of Section 23 of the Right to Education Act, and it was not exercised under subsection (2) of Section 23 which allows relaxation of eligibility criteria. The Court also observed that the petitioners had locus standi to challenge the notification and that accepting a candidate with a B.Ed. degree and subjecting him to a bridge course amounted to a relaxation of existing eligibility criteria that could only be done under the proper statutory provision. The Court further noted that the State Government could not ignore the NCTE notification while issuing advertisements for the Rajasthan Eligibility Examination for Teachers (REET)., The learned counsel for the appellants submitted that the Central Government is the final authority in deciding teacher qualifications and that NCTE is bound to follow directions under Section 12A and Section 29 of the NCTE Act. Section 12A empowers the Council to determine minimum standards of education of school teachers, while Section 29 obliges the Council to follow policy directions issued by the Central Government. The Supreme Court of India has repeatedly held that policy decisions are not immune from judicial review when they are arbitrary, unreasonable, mala fide, or contrary to law. The Court has enumerated tests for judicial review, including reasonableness, fairness, absence of ulterior motive, conformity with statute or Constitution, and adherence to the limits of delegated power., In the present case, even assuming that the inclusion of B.Ed. as a qualification for primary teachers was a policy decision, it is contrary to the purpose of the Right to Education Act and the fundamental right to free, compulsory and quality primary education under Article 21A of the Constitution. Consequently, the notification dated 28 June 2018 is quashed and set aside, the appeals are dismissed, and the judgment dated 25 November 2021 of the Rajasthan High Court is upheld. All pending writ petitions and applications stand disposed of in light of this order.
id_1349	0	Imran Iqbal Shaikh Applicant v/s. The State of Maharashtra and others. Respondents: Mr. Sunny Aaron Waskar, Ms. Harshada Morey and Mr. Shamish Marwadi for the Applicant. Mr. S.V. Gavand, Assistant Public Prosecutor for the State. Mr. Veerdhawal Deshmukh, appointed by the Special Court for Report No.2. Mr. Vilas Tambe, Police Sub-Inspector, Dindoshi Police Station, Mumbai present., This is an application under section 439 of the Criminal Procedure Code filed by the aforesaid applicant who is facing trial in Special Case No.148/2021 pending on the file of the learned Special Judge under the Protection of Children from Sexual Offences Act, Borivali Division, Dindoshi, Goregaon, Mumbai. The said case arises from Crime Report No.06/2021 registered with Dindoshi Police Station, Mumbai for offences punishable under sections 363 and 376 of the Indian Penal Code and section 4 of the Protection of Children from Sexual Offences Act., Heard learned counsel for the applicant, learned Assistant Public Prosecutor for the State and learned counsel for the intervenor. I have perused the records and considered the submissions advanced by the learned counsel for the respective parties., The aforesaid crime was registered pursuant to the FIR lodged by the mother of the victim. The FIR reveals that the victim had left the house on 27/12/2020 and had not returned. The first informant suspected that some persons were involved in kidnapping her daughter. Hence, crime came to be registered for offences punishable under sections 363 and 367 of the Indian Penal Code. Subsequently, the victim was traced. Her statement reveals that she had left the house on 27/12/2020. She stayed with her friend for two to three days. Since she had left the house without informing her parents, she was scared to return home. She did not return home and she claims that during daytime she roamed around the place near her house and she slept in a rickshaw at night. She claims that on 29/12/2020, while she was sleeping in a rickshaw, the applicant called her to the terrace of SRA building near Kodarmal Masjid and had forcible sexual relationship with her. She claims that on 07/01/2021, the applicant once again had sexual relationship with her., It is true that the victim is a child within the meaning of section 2(d) of the Protection of Children from Sexual Offences Act. The applicant was also a young boy of 22 years of age at the time of the incident. The statement of the first informant prima facie indicates that the relationship was consensual. It needs to be noted that the Protection of Children from Sexual Offences Act has been enacted to protect children from offences of sexual assault, sexual harassment etc., and contains stringent penal provisions to safeguard the interest and the well‑being of the children. The object is certainly not to punish minors in romantic or consensual relationship and brand them as criminals., The applicant is in custody since 17/02/2021. The trial has not yet commenced and considering the large pendency, the trial is not likely to commence in the immediate future. Detaining the applicant further will bring him in association with hardened criminals which will also be detrimental to his interest., Considering the above facts and circumstances, this is a fit case for grant of bail. Hence, the application is allowed on the following terms and conditions: (i) The applicant who is facing trial in Special Case No.148/2021 pending on the file of the learned Special Judge under the Protection of Children from Sexual Offences Act, Borivali Division, Dindoshi, Goregaon, Mumbai arising out of Crime Report No.06/2021 registered with Dindoshi Police Station, Mumbai, is ordered to be released on cash bail in the sum of Rupees 30,000 for a period of four weeks; (ii) The applicant shall, within the said period of four weeks, furnish Personal Recognizance bonds in the sum of Rupees 30,000 with one or two solvent sureties in the like amount; (iii) The applicant shall report to Dindoshi Police Station, Mumbai once in two months on the first Monday of the month between 11.00 a.m. to 2.00 p.m. until further orders; (iv) The applicant shall not interfere with the complainant and the other witnesses and shall not tamper with the evidence or attempt to influence or contact the complainant, witnesses or any person concerned with the case in any manner; (v) The applicant shall keep the trial court informed of his current address and mobile contact number and any change of residence or mobile details, if any, from time to time; (vi) The applicant shall co‑operate with the conduct of the trial and attend the trial court on all dates, unless exempted., Bail application stands disposed of in the above terms.
id_135	0	Reserved on: 5th July, 2022. Date of decision: 26th July, 2022. (Formerly Cadbury India Limited). Through: Ms. Prakriti Vaishney, Advocate. Prathiba M. Singh, Judge., The present suit has been filed seeking permanent and mandatory injunction and damages for infringement of trademark and copyright, passing off, unfair competition and other reliefs. The Plaintiff No.1 Mondelez India Foods Private Limited (formerly Cadbury India Ltd.) and Plaintiff No.2 Cadbury Schweppes Overseas Limited claim ownership in the mark CADBURY GEMS / GEMS which is the subject matter of the present suit., The Plaintiff No.1 began its operations as a trading company in the year 1947 and is stated to be the market leader in the field of confectionery chocolate products worldwide, including in India. Some of the leading and newer products are CADBURY BYTES, CADBURY ..., The suit was filed in August, 2005 against M/s. Neeraj Food Products, a sole proprietary concern of Mr. Charan Das. The Plaintiffs allege that the Defendant launched a chocolate product under the mark JAMES BOND with an identical colour scheme, layout, and arrangement as that of the Plaintiffs' CADBURY GEMS / GEMS products. The rival packagings of the Plaintiffs and the Defendant are set out below., In the suit, the Plaintiff seeks the following reliefs: A) The Defendant, its proprietor, partners, directors, servants, agents, distributors, franchisees, representatives and assigns be restrained by a permanent injunction restraining them from: i) using the trade mark JAMES and/or JAMES BOND or any other trade mark deceptively or confusingly similar to the Plaintiffs' registered trade mark GEMS or in any other manner infringing the registered trade mark GEMS of the Plaintiff; ii) using the pillow‑packs attached as Annexure ‘B’ to the unamended plaint or any other packaging whatsoever which is deceptively or confusingly similar to the pillow‑packs of the Plaintiffs attached as Annexure ‘A’; iii) in any other manner whatsoever passing off their goods as and for the goods of the Plaintiffs; iv) substantially reproducing in material form the copyright in the artistic work of the pillow packs, a representation of which is attached Annexure ‘A’ to the unamended plaint. B) A decree of a mandatory injunction be passed thereby directing that the Defendant, its directors, proprietor, partners, employees, agents, distributors, franchisees, representatives and assigns to: i) hand over to Plaintiffs or their nominated representative all goods, packaging and promotional material, stationery and any other material whatsoever bearing the trade mark JAMES BOND and/or the offending pillow packs or any other trade marks deceptively or confusingly similar to the Plaintiffs' trade mark GEMS; ii) recall all the products, marketing, promotional and advertising materials bearing the trade marks JAMES BOND and/or the offending pillow packs or any other trade marks deceptively or confusingly similar to the Plaintiffs' trade marks GEMS and hand over the same to the attorneys or representatives of the Plaintiffs; iii) deliver to the Plaintiffs' attorneys or representatives for destruction all products, labels, prints, packages, moulds, blocks, cylinders, plates, dies, wrappers, receptacles and advertisements in its possession or under its control bearing the trade marks JAMES BOND and/or the offending pillow packs or any other trade marks deceptively or confusingly similar to the Plaintiffs' trade mark GEMS. C) The Defendant be called upon to allow inspection of their accounts to assist in ascertaining damages and a decree be passed in favour of the Plaintiffs against the Defendant for damages suffered by Plaintiffs by virtue of use of the offending packaging by the Defendant., As per the plaint, the particulars of the trademark registrations of the Plaintiffs in respect of the mark/name GEMS are set out below: S.No. Trade Mark Reg. No. Goods (Label) 582896 Sugar Panned Chocolate, Milk Chocolate either plain or containing nuts, fruits, raisins, caramel, nougat etc. Chocolate confectionery and other types of confectionery in Class 30. 2. GEMS (Device) 249841 Milk Chocolate in Class 30. GEMS (Word) 249360 Milk Chocolate in Class 30. (Label) 291026 Milk Chocolate in Class 30., In addition, Plaintiff No.1 holds copyright registrations in its former name being M/s. Hindustan Cocoa Products Ltd., bearing registration numbers A-50680/90 and A-49975/89 for the artistic works in respect of a character known as GEMS BOND which character has been used by the Plaintiffs for promotion of its GEMS branded products. The artistic works are set out below: Registration No. A-49975/89, Registration No. A-50680/90., The present suit was listed for the first time on 4th October, 2005 when summons and notices were issued to the Defendant. Initially, the Defendant entered appearance, but thereafter stopped appearing in the matter. By order dated 24th April, 2006, the Defendant was proceeded against ex parte. An application was then moved on behalf of the Defendant seeking the setting aside of the ex parte proceedings. The same was allowed on 25th July, 2006, on which date it was recorded that the non‑appearance on behalf of the Defendant was not intentional, and therefore the order dated 24th April, 2006 directing ex parte proceedings against the Defendant was recalled. The amended plaint was filed seeking enhancement of the valuation of the suit, which was allowed on the same day. Pleadings were completed between the parties., Thereafter, by a detailed judgment dated 25th May, 2007, the application for interim injunction was allowed in the following terms: Accordingly, the Defendant, its proprietors, partners, directors, servants, agents, distributors, franchisees, representatives and assigns are restrained from using the trade mark JAMES and/or JAMES BOND or any other trade mark deceptively or confusingly similar to the Plaintiff's registered trade mark GEMS or in any other manner infringing the registered trade mark GEMS, and from using the pillow‑packs attached as Annexure B to the plaint or any other packaging whatsoever which is deceptively or confusingly similar to the pillow‑packs of the Plaintiffs attached as Annexure A. The Defendant and its representatives are also restrained from passing off their goods as those of the Plaintiff and from substantially reproducing any material form of the copyright in the artistic work of the pillow‑packs., An application was moved on behalf of the senior counsel for the Defendant seeking discharge from the present suit in view of the fact that the counsel was not receiving instructions from the Defendant. The application was allowed, vide order dated 5th September, 2008. On the basis of the pleadings of the parties, the following issues were framed, vide order dated 15th December, 2008: 1. Whether the plaintiffs are entitled to the relief of permanent injunction as prayed in prayer clause A of the plaint? 2. Whether the plaintiffs are entitled to the relief of mandatory injunction as prayed in prayer clause B of the plaint? 3. Whether the plaintiffs are entitled to damages? If yes, to what extent? 4. Whether the plaintiffs are the registered proprietor of the trademarks as mentioned in paragraph 6 of the plaint in India? 5. Whether the plaintiffs are the copyright owners of the artistic work with respect to a character known as GEMS BOND? 6. Whether the acts of the Defendant constitute infringement of the registered trademarks of the plaintiffs? 7. Whether the acts of the Defendant constitute passing off its goods as and for the goods of the plaintiffs? 8. Whether the trademark/label of the Defendant annexed as Annexure B to the plaint is different and not deceptively similar to the plaintiff's trademark/label attached as Annexure A to the plaint? 9. Whether the impugned trademark annexed as Annexure A to the unamended plaint is common to ..., The Defendant thereafter appeared sporadically in the matter. At one stage, in the year 2011, parties had submitted that the disputes had been settled and an application under Order X XIII Rule 3 Code of Civil Procedure would be filed shortly. However, vide order dated 12th May, 2011, senior counsel for the Plaintiff informed the Delhi High Court that the settlement talks had failed and that a fresh application under Order 39 Rule 2A Code of Civil Procedure was being filed. Finally, on 30th November, 2011, the Defendant was proceeded against ex parte., Ex parte evidence was filed by the Plaintiff by way of an affidavit of PW‑1 Mr. Tapan Chauhan. The statement of the witness was recorded on 22nd February, 2013 and the witness was discharged. Evidence was concluded on 3rd July, 2013. The matter was then pending hearing in the category of Finals., Pursuant to directions of the Delhi High Court to list Finals matters for hearings, the matter was taken up on 8th March, 2022, on which date, due to change of name etc., time was sought by the Plaintiffs to file an application under Order XXII Rule 10 Code of Civil Procedure. The application, I.A. 5139/2022, was filed and allowed on 4th April, 2022. The name of Plaintiff No.1 was changed from Cadbury India Limited to Mondelez India Foods Ltd. An amended memo of parties was filed and the recordal of the name of Plaintiff No.1 was taken on record, vide order dated 4th April, 2022., Ex parte evidence has been filed on behalf of the Plaintiffs by way of an affidavit of Mr. Tapan Chauhan, the authorized signatory of the Plaintiffs. The following exhibits have been filed by the Plaintiffs' witness: Power of Attorney dated 17th July, 2012 in favour of PW‑1 Mr. Tapan Chauhan, Assistant Manager Legal, Cadbury India Limited. Ex.PW‑1/2 Assignment Deed dated 3rd March, 2011 between Cadbury Schweppes Overseas Limited and Cadbury UK Limited. Original certified copies of trademark registrations of the Plaintiffs in respect of the GEMS products. Plaintiff's registrations worldwide in respect of the trademark. Ex.PW‑1/5 Trademark License Agreement dated 25th January, 1994 between Cadbury Schweppes Overseas Limited and Cadbury India Limited. Ex.PW‑1/6 Notarized copies of the Plaintiffs' Copyright Registration Certificates. Original Chartered Accountant Certificates showing Plaintiff's sales figures and sales volumes for the years 2000‑2005 and 2006‑2010. Ex.PW‑1/8 Chartered Accountant Certificates showing sales and advertising/promotional expenditure for the year 2006. Ex.PW‑1/9 Sample of the Plaintiff's packaging for its products sold under the brand name GEMS. Ex.PW‑1/9 Sample Representation of Cadbury's GEMS BOND Advertisement Campaign & Promotional Material. Ex.PW‑1/10 Advertising and promotional materials for the Plaintiffs. Ex.PW‑1/11 Printouts of websites showing sales of the Plaintiffs' products. Ex.PW‑1/12 Printouts of third‑party websites showing sales of the Plaintiffs' products. Ex.PW‑1/13 Original packaging of the Defendant's product., The Delhi High Court has perused the ex parte evidence led on behalf of the Plaintiffs. The witness, who had appeared, has been duly authorized by Power of Attorney dated 17th July, 2012, and exhibited as Ex.PW‑1/1. The document dated 3rd March, 2011 assigning the trademark from Cadbury Schweppes Overseas Limited to Cadbury U.K. Limited has been exhibited as Ex.PW‑1/2. A perusal of the schedule to the assignment shows that two of the marks, in which rights have been assigned, are CADBURY'S MILK CHOCOLATE GEMS bearing registration No. 249360 dated 20th May, 1968 and CADBURY'S GEMS bearing registration No. 582896 dated 14th October, 1992. The assignment specifically records that these marks had been applied for by Cadbury Schweppes Overseas Limited and all the beneficial rights, title and interest in the said marks have been assigned to Cadbury U.K. Limited. The legal proceeding certificates and various trademark registrations for the mark GEMS have also been placed on record, exhibited as Ex.PW‑1/3., Some of the global registrations for the marks related to the GEMS product have been exhibited as Ex.PW‑1/4 along with a declaration of Mr. Mark Jonathan Hodgin on behalf of Cadbury Schweppes Overseas Limited. The same shows registration of the mark GEMS in several countries including Australia, Bahrain, Kuwait, Morocco, Nigeria, Oman, Pakistan, Qatar, Sri Lanka, United Arab Emirates, and United Kingdom., The License Agreement between Cadbury India Limited and Cadbury Schweppes Overseas Limited, permitting the use of the mark GEMS by Cadbury India Limited for exclusive use in the territory of India, Nepal, Bangladesh (Ex.PW‑1/5)., The copyright registrations granted to Cadbury India Limited, in its former name being M/s. Hindustan Cocoa Products Ltd., bearing registration numbers A-50680/90 and A-49975/89, depict a label with a character portrayed in a western suit carrying a gun along with the GEMS chocolate products (Ex.PW‑1/6)., Sales figures of the Plaintiffs and the advertisement expenditure for the years 2000 to 2005 and 2006 to 2010 have also been placed on record, exhibited as Ex.PW‑1/8. The extracted data are as follows: Period, Sales Turnover (Rs crore), Sales Volume (tons), Gross sales value (Rs in millions), Advertising expenditure (Rs in millions)., The Plaintiffs have also used the GEMS BOND feature for promoting their CADBURY GEMS products. This is relevant for adjudication of the case., Various packaging and other promotional material for the Plaintiffs' CADBURY GEMS products have been exhibited as Ex.PW‑1/10. Several internet articles showing sales of the Plaintiffs' products have been exhibited as Ex.PW‑1/11 and Ex.PW‑1/12. A complete list of Plaintiffs' products as of the year 2006 has been placed on record and exhibited as Ex.PW‑1/12. The packaging of the Plaintiffs' product which is the subject matter of the present suit, and that of the Defendant's infringing product have been exhibited as Ex.PW‑1/9 and Ex.PW‑1/13 respectively., The Delhi High Court has heard senior counsel for the Plaintiff and perused the record. The Defendant is ex parte. A perusal of the pleadings shows that the case of the Plaintiffs is that the use of the impugned mark JAMES BOND / JAMEY BOND and the product packaging bearing the said mark is infringing its registered trademark CADBURY GEMS / GEMS, its copyright registrations featuring the character GEMS BOND as set out herein, and also constitutes passing off., The Plaintiff No.1 Mondelez India Foods Pvt. Ltd. (formerly known as Cadbury India Limited) began its operations in India in 1947 and has thousands of employees and lakhs of outlets across India. The earliest trademark registration for the GEMS product in India is for the word mark No. 249360 dated 20th May, 1968 in Class 30 used in respect of goods being Milk Chocolate. Its gross sales value, as depicted above, is more than Rs. 1487.56 million in the year 2010., The Plaintiffs' product branded as CADBURY GEMS / GEMS and its packaging is known to the young and old alike. The packaging of the Plaintiffs' GEMS product is very unique with illustrations of colourful button chocolates on a blue/purple base with the mark GEMS depicted in a number of colours and a splash in the middle. The Plaintiffs' GEMS product is one of the most popular and well‑recognised chocolate products in India. Almost everyone’s childhood is associated with the consumption of it., The Plaintiffs have obtained copyright registrations in respect of the artistic works set out herein, involving a character referred to as GEMS BOND and used as an advertisement/promotion. Various advertisements of GEMS bear the image of GEMS BOND and samples of the same have also been placed on record. The Defendant's packaging uses the mark JAMES BOND / JAMEY BOND with the same blue/purple base and colourful button chocolates. The mark GEMS is depicted in a brown background in the Plaintiff's product, as also in the Defendant's products. The entire colour scheme of the Defendant's product is identical to that of the Plaintiffs' label and packaging. The marks are also confusingly and deceptively similar., The Defendant has filed its written statement at an early stage and, though the Defendant is ex parte, the defences raised therein are being considered. In the written statement, the main plank of the Defendant's case is that the label and the mark are not identical or deceptively similar. No substantial defence has been taken in the written statement, except for claiming that the Defendant's products are different from the Plaintiffs' products. A perusal of the documents filed by the Defendant shows that the Defendant had filed the Trademark Application bearing No. 1124200 dated August, 2002 in Class 30 in respect of goods being all kinds of food products, including confectionery, churan goli, etc. The user claimed in this application is of the year 1979. The search report in respect of the said trademark has also been placed on record. The same is relied upon by the Defendant to contend that the impugned trademark/label of the Plaintiffs does not find mention in the search report, and therefore, the trade mark/label of the Defendant cannot be said to be identical with or deceptively similar to the trade mark/label of the Plaintiffs. The product packaging/label of a third‑party seller under the name YO YO has also been placed on record to show that the same is deceptively similar to the Plaintiffs' products., Insofar as the documents of user filed by the Defendant are concerned, there is not a single advertisement, which has been placed on record. There are only a few Kacha invoices, all of which date back to the years 2001‑02. No other documents have been placed by the Defendant showing use., In the background of these pleadings and documents placed on record by the parties, this Court is of the opinion that the present case is a case of res ipsa loquitur. The comparative labels set out herein above show that the two products have startling similarities. Some of the features which are similar are set out below: A. The Defendant's pillow pack is of the same blue/purple background and of the same size as that of the Plaintiffs. B. The Plaintiffs' pillow pack has a brown oval at the centre, while the Defendant has placed a diamond in brown colour at the centre. C. The Plaintiffs have displayed the origin of the product i.e., the name of the manufacturer as CADBURY'S on the top left corner of the pillow pack. The Defendant has placed its name NEERAJ in an identical manner and positioning at the top left corner, as that of the Plaintiffs. D. The brown oval on the Plaintiffs' pillow pack is bordered by a blue/purple oval while the brown diamond on the Defendant's pillow pack is also bordered with the blue/purple border. E. The Plaintiffs have inscribed the trade mark GEMS in the colour white, and the Defendant has used an identical white for writing. F. Further, the Defendant has also copied the Plaintiffs' scripting of the trade mark GEMS on the pillow pack. The trade mark GEMS is written in an uneven script and the Defendant has also placed JAMES BOND in an uneven script. G. Just as the Plaintiffs, the Defendant has also created a visual impression of an explosion in blue/purple colour in the middle with lines emanating from the centre and tablets flying out. H. The colour combination of the tablets adopted by the Defendant is also similar to that of the Plaintiffs. I. The Defendant has also placed half chocolate‑tablets showing the chocolate centre in the exact same manner as the Plaintiffs. J. Additionally, the Defendant has conceptualised the impugned product JAMES BOND by being inspired by the character namely GEMS BOND, as used by the Plaintiffs for promotion of their GEMS branded products., In two seminal judgments of the Supreme Court, the test of infringement and deceptive similarity of competing marks is well settled. The Supreme Court in Corn Products Refining Co. v. Shangrila Food Products Ltd., (1960) 1 SCC 968, observed that the question has to be approached from the point of view of a man of average intelligence and of imperfect recollection. It was observed that, to such a man, the overall structural and phonetic similarity and the similarity of the idea in the two marks is reasonably likely to cause confusion between them. The relevant extracts from the judgment in Corn Products are set out below: ..., In Parle Products (P) Ltd. v. J.P. & Co., Mysore [AIR 1972 SC 1359], it was held that the Court has to see similarities and not the dissimilarities. The relevant extracts of the said judgment, which has been followed in innumerable judgments subsequently, are set out herein below: According to Kersey's Law of Trade Marks and Trade Names (9th Edition Paragraph 838) ..., Similar is the view taken by the senior single Judge of this Court in ITC Ltd. v. Britannia Industries Ltd. [2016] DLT 259, wherein the Plaintiff sought to restrain the Defendant from violating its rights in the Plaintiff's packaging/trade dress of Sunfeast Farm Lite Digestive All Good biscuit by using a deceptively and confusingly similar trade dress for its Nutri Choice Digestive Zero biscuit. On the aspect of deception and confusion, the Court placed reliance upon Parle Products and observed as under: ...
id_135	1	The aspect of 'initial interest' was explained by this Court in Baker Hughes Limited v. Hiroo Khushalani as under: \In some case, however, it is also possible that such a purchaser after having been misled into an initial interest in a product manufactured by an imitator discovers his folly, but this initial interest being based on confusion and deception can give rise to a cause of action for the tort of passing off as the purchaser has been made to think that there is some connection or nexus between the products and business of two disparate companies.\, Therefore, when another competing variant of the biscuit is introduced six months later and a consumer on the basis of the popularity of a product that has recently been introduced makes a mistake as to which packet of biscuit he is picking up, it can be argued that the initial interest was based on confusion and deception and, therefore, gives rise to a tort of passing off. In Wal Mart (supra) it was observed that the product's trade dress can be protected only if it is shown that it had acquired a secondary meaning \since design, like colour, is not inherently distinctive.\ However, the product in that case was a certain kind of clothing. In that context, it was said that the colour by itself does not identify the source of the product. However, that may not be entirely true when it comes to products like biscuits. The packaging of a biscuit does become associated with the manufacturer or brand. The colour on the wrapper would certainly play an important part., Similar marks or features used in wrappers of competing biscuits was the subject matter of Parle Products (P) Ltd. v. J.P. & Co. (supra). The Appellants there owned certain registered trademarks one of which was \Glucose\ and was used on their half pound biscuit packets. Another registered trademark was a wrapper with its colour scheme, general set up and entire collocation of words. The wrapper was of buff colour and depicted a farmyard with a girl in the centre carrying a pail of water and cows and hens around her on the background of a farmyard house and trees. The Respondent's wrapper contained a picture of a girl supporting with one hand a bundle of hay on her head and carrying a sickle and a bundle of food in the other, the cows and hens surrounding her. The trial court declined the injunction. The High Court looking at the broad features did not think that they were so similar so as to deceive an ordinary purchaser. Since it was an action for infringement, the Supreme Court of India declined to treat it as a case of passing off. Nevertheless, it explained that in order to come to a conclusion whether one mark is deceptively similar to another \the broad and essential features of the two are to be considered.\ It was further explained as under: \They should not be placed side by side to find out if there are any differences in the design and if so, whether they are of such character as to prevent one design from being mistaken for the other. It would be enough if the impugned mark bears such an overall similarity to the registered mark as would be likely to mislead a person usually dealing with one to accept the other if offered to him. In this case we find that the packets are practically of the same size, the colour scheme of the two wrappers is almost the same; the design on both though not identical bears such a close resemblance that one can easily be mistaken for the other. The essential features of both are that there is a girl with one arm raised and carrying something in the other with a cow or cows near her and hens or chickens in the foreground. In the background there is a farm house with a fence. The word \Glucose Biscuits\ in one and \Glucose Biscuits\ on the other occupy a prominent place at the top with a good deal of similarity between the two writings. Anyone in our opinion who has a look at one of the packets today may easily mistake the other if shown on another day as being the same article which he had seen before. If one was not careful enough to note the peculiar features of the wrapper on the plaintiffs goods, he might easily mistake the defendants' wrapper for the plaintiffs if shown to him some time after he had seen the plaintiffs'. After all, an ordinary purchaser is not gifted with the powers of observation of a Sherlock Holmes. We have therefore no doubt that the defendants' wrapper is deceptively similar to the plaintiffs which was registered.\, In the background of the legal position captured above, it is to be noted that in the present case, the products in question are chocolates which may be consumed by young and old alike. The GEMS product is also usually consumed by small children, both in urban and rural areas. The test in such a matter is not that of absolute confusion. Even likelihood of confusion is sufficient. A comparison of the Defendant's infringing product and the packaging thereof leaves no manner of doubt that the same is a complete knock‑off of the Plaintiffs' CADBURY GEMS. The significant fact is that these products are sold not only in bigger packs, but also in smaller pillow packs, due to which the mark may not even be fully visible. The smallest selling unit of the Plaintiffs product i.e., the pillow pack, is even available for 1 rupee to 5 rupees. Hence, the product's up‑look, layout, as also, the colour combination of the packaging plays a significant role at the point of purchase. Moreover, chocolates are sold not merely in big retail stores or outlets, but also in roadside shacks, paan shops, patri vendors, kirana stores and stalls outside schools, etc. Thus, there is an immense likelihood of confusion, particularly considering the class of consumers that the product is targeted at, that is, children., In view of the foregoing factors and the resemblance in the product packaging, as also the phonetic similarity between the marks used in respect of the Plaintiffs and Defendant's products, the issues framed by the Court in the present suit are answered as below:\n\nIssue No. 1. Whether the Plaintiffs are entitled to the relief of permanent injunction as prayed in prayer clause A of the Plaint? (Opposed)\n\nIssue No. 2. Whether the Plaintiffs are entitled to the relief of mandatory injunction as prayed in prayer clause B of the Plaint? (Opposed)\n\nIssues 1 and 2 are taken together. In view of the evidence led by the Plaintiffs and the foregoing discussion as to the blatant infringement of the Plaintiffs' trademark and copyright, the present two issues are answered in the affirmative. Accordingly, Issues 1 and 2 are decided in favour of the Plaintiffs and against the Defendant.\n\nIssue No. 3. Whether the Plaintiffs are entitled to damages? If yes, to what extent? (Opposed) In view of the contumacious conduct of the Defendant in infringing the well‑known mark, label and packaging of the Plaintiffs, this Court is convinced that the present is a fit case for the award of damages. Accordingly, Issue No. 3 is decided in favour of the Plaintiffs and against the Defendant.\n\nIssue No. 4. Whether the Plaintiffs are the registered proprietor of the trademarks as mentioned in paragraph 6 of the Plaint in India? (Opposed) The Plaintiffs have placed on record the certified copies of the legal proceeding certificates relating to the trademark registrations in respect of its GEMS product obtained in India. The same are exhibited as Ex.PW 1/3 (Colly). A perusal of the same establishes that the Plaintiffs are the registered proprietor of the marks as mentioned in paragraph 6 of the Plaint. Accordingly, Issue No. 4 is decided in favour of the Plaintiffs and against the Defendant.\n\nIssue No. 5. Whether the Plaintiffs are the copyright owners of the artistic work with respect to a character known as GEMS BOND? (Opposed) The Plaintiffs have placed on record the certified copies of the copyright registration certificates for its artistic works in respect of the character GEMS BOND. The same is exhibited as Ex.PW 1/6 (Colly). After perusing the said copyright registrations, the present issue is answered in the affirmative. Accordingly, Issue No. 5 is decided in favour of the Plaintiffs and against the Defendant.\n\nIssue No. 6. Whether the acts of the Defendant constitute infringement of the registered trademarks of the Plaintiffs? (Opposed)\n\nIssue No. 7. Whether the acts of the Defendant constitute passing off its goods as and for the goods of the Plaintiffs? (Opposed) Issues 6 and 7 are taken together. This Court has perused the ex parte evidence filed on behalf of the Plaintiffs. The discussion above clearly shows that the acts of the Defendant constitute infringement of registered trademarks of the Plaintiffs, as also, passing off. Accordingly, Issues 6 and 7 are decided in favour of the Plaintiffs and against the Defendant.\n\nIssue No. 8. Whether the trademark/label of the Defendant, annexed as Annexure B to the Plaint is different and not deceptively similar to the Plaintiffs' trademark/label attached as Annexure A to the Plaint? (Opposed) The packaging/mark/label of the Defendant are a substantial imitation and similar to the Plaintiffs' mark/label/packaging. The onus to prove the differences is on the Defendant. As discussed above, no substantial defence has been taken by the Defendant in its written statement, except for claiming that the Defendant's products are different from the Plaintiffs' product. No advertisement or other documents have been placed on record and no evidence has been led by the Defendant. Accordingly, Issue No. 8 is decided in favour of the Plaintiffs and against the Defendant.\n\nIssue No. 9. Whether the impugned trademark annexed as Annexure A to the unamended Plaint is common to trade? (Opposed) The Defendant has failed to establish that the Plaintiffs' mark CADBURY GEMS / GEMS is common to trade. The present issue is answered in the negative. Accordingly, Issue No. 9 is decided in favour of the Plaintiffs and against the Defendant., The present is a commercial suit, which has remained pending since the year 2005. The Defendant has been irregular in its appearance before the Court and has contributed to the delay. Even otherwise, the Defendant has been proceeded against ex parte and has not led any evidence. The defence of the Defendant did not stand proved, especially in view of the competing packagings which have been exhibited and placed on record. The Defendant has also not denied having sold chocolates under the infringing packaging. The search report of the Defendant placed on record shows that the Defendant had adopted a packaging with the same illustrations and blue/purple colour as that of the Plaintiffs' product. Therefore, the impugned packaging of the Defendant's product sold under the mark JAMES BOND / JAMEY BOND has clearly infringed the Plaintiffs' rights in the mark CADBURY GEMS, as also, the copyright in respect of the products sold under the said mark., An interim injunction has been operating in the present suit since 25 May 2007. For some time, contempt was alleged by the Plaintiff and an application under Order XXXIX Rule 2A of the Code of Civil Procedure was sought to be filed. However, at the time of final arguments, no submission has been made to the effect that the Defendant's products continued to be available in the market. Accordingly, the reliefs sought in respect of delivery up and for recall of the Defendant's products are not granted at this stage. However, if the Plaintiffs find any infringing products in the market, they are free to seek execution of the decree, seeking delivery up, at that stage., The Plaintiffs have further spent a substantial amount of money towards litigation costs, including court fee, counsel's fees and miscellaneous expenses. Therefore, considering the observations of the Supreme Court of India on the issue of costs to be awarded in commercial matters in Uflex Ltd. v. Government of Tamil Nadu & Ors. [Civil Appeal Nos. 4862-4863 of 2021, decided on 17 September 2021], as also, in terms of the Commercial Courts Act, 2015 and the Delhi High Court (Original Side) Rules, 2018 read with Delhi High Court Intellectual Property Division Rules, 2022, this is a fit case for grant of actual costs., In view of the above findings, the present suit is decreed in terms of the reliefs of permanent and mandatory injunction as sought in paragraphs (A) and (B) of the prayer clause as set out in the Plaint., Insofar as the relief of damages as sought in paragraph (C) of the prayer clause is concerned, the present is a fit case for award of damages. Accordingly, in view of the flagrant violation of the Plaintiffs' rights, damages to the tune of Rs.10 lakhs are awarded in favour of the Plaintiffs., Accordingly, actual costs of Rs.15,86,928 are awarded in favour of the Plaintiffs, in terms of the relief as sought in paragraph (D) of the prayer clause as set out in the Plaint. Let the statement of costs filed by the Plaintiffs be taken on record., The Defendant shall pay the costs and damages to the Plaintiffs within three months, failing which the Plaintiffs shall be permitted to seek execution of the decree or avail of its remedies, in accordance with law., Decree sheet be drawn accordingly. All pending applications are also disposed of.
id_1350	0	Petitioners Mehmood Pracha, Jatin B. Hatt and Harshit S. Gahlot, Advocates, filed the present petition under Articles 226 and 227 of the Constitution of India. The prayers are: (a) to issue a writ, order or direction, including a writ of mandamus, directing the police authorities or Respondent No. 6 to register appropriate First Information Reports in the cases involving the deaths of the sons of Petitioners No. 2 and No. 3; (b) to direct the investigation of the cases to be conducted by Respondent No. 6; (c) to direct Respondent No. 6 to conduct a thorough, impartial investigation into the caste‑based atrocities being committed in the premises of Respondent No. 5; (d) to monitor the investigation; (e) to direct an independent inquiry into the caste‑based atrocities in the premises of Respondent No. 5; (f) to command the respondents to ensure strict compliance and implementation of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 and its rules; and (g) to pass any other or further orders as this High Court may deem fit and proper., The facts are that complaints dated 26 July 2023 and 9 September 2023 were filed by the petitioners, who are the parents of two deceased B.Tech (Mathematics and Computing) students of the Indian Institute of Technology, Delhi. One student, WH‑02, Seventh Floor, Udaygiri Hostel, IIT Delhi, and another, Room EA‑18, Ground Floor, Vidhyachal Hostel, IIT Delhi, were alleged to have been murdered in conspiracy with IIT faculty members who allegedly concealed the true facts and falsely portrayed the deaths as suicides. Both students belonged to Scheduled Castes and had reportedly informed their parents about caste‑based discrimination by faculty and hostel mates. The petitioners allege that the faculty attempted to protect the real perpetrators and that the police have not investigated the matter properly., The Status Report filed by the Assistant Superintendent of Police states that the post‑mortem determined death by asphyxia due to hanging with a ligature. During the enquiry, statements of the father, brother, other relatives and friends of the deceased were recorded, indicating that the deceased had failed in some subjects in the prior semester exams and was under depression. The father, Ramesh Kumar, later submitted a written complaint alleging caste‑based discrimination by hostel mates and faculty members since the beginning of his son’s academic year 2019‑2020, and suspected that his son could not have taken his own life and might have been killed with the connivance of faculty members., Further enquiry revealed that the deceased had entered IIT Delhi in 2019 (Entry No. 2019 MT10674) and was allotted Room SD‑11, Vidhyachal Hostel. He obtained low grades in several semesters: he passed all subjects in the first year, failed two subjects in the third semester, failed one subject in the fourth semester, failed all subjects in 2021‑22, failed one subject in the seventh semester and two subjects in the eighth semester, leading to an extension of his hostel stay. Examination of hostel allotment letters showed no column indicating the category (SC/ST/General) of the students; only entry numbers were mentioned, providing no evidence of caste‑based discrimination against the deceased., The learned counsel for the petitioners submitted that the deceased had cleared the prestigious JEE‑Advanced and secured admission to IIT Delhi, yet faced caste‑based discrimination by some faculty members and students. They alleged that the police are not registering FIRs due to indifference and are acting in connivance with the IIT administration, deliberately delaying the investigation and destroying evidence. They invoked Section 4(2)(b) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989, which mandates registration of an FIR under the Act, and argued that the police have wilfully neglected their duties., The petitioners relied on the judgments of Lalita Kumari v. State of Uttar Pradesh (All India Reporter 2012 SC 1515) and National Campaign on Dalit Human Rights v. Union of India (All India Reporter 2017 SC 132)., The Assistant Superintendent of Police for the State contended that although the deceased students were bright, there is no proof of caste‑based discrimination on the IIT campus. The detailed enquiry showed repeated academic failures, and statements of family and friends indicated that the students were under pressure, leading to suicide by hanging. No complaint was ever lodged by either student with the police, the SC/ST Cell of IIT Delhi, or any friend on campus regarding caste discrimination. The dean and staff treat all students equally, and no evidence suggests any caste‑based prejudice., The Court noted that while registration of an FIR is mandatory under Section 154 of the Criminal Procedure Code when information discloses a cognizable offence, the present case does not meet that criterion because a thorough enquiry has established that the deaths were likely due to academic pressure and not a cognizable offence involving caste discrimination. Therefore, a mandamus cannot be issued on the basis of mere sentiment or sympathy., In State of West Bengal v. Committee for Protection of Democratic Rights (2010 3 SCC 571), the Supreme Court of India observed that although Articles 32 and 226 confer wide powers, courts must exercise caution and that directing the Central Bureau of Investigation to investigate should be done sparingly, only in exceptional situations where credibility, confidence, or national importance demands it, to avoid overburdening the agency., In Mithilesh Kumar Singh v. State of Rajasthan (2015 9 SCC 795), the Supreme Court held that the power to transfer investigation to an external agency is exercised only when the facts and circumstances warrant it, not merely to satisfy a party’s ego. Transfer is justified only when there is a reasonable apprehension of biased or ineffective investigation, and the independent agency is expected to discover the truth., The perusal of the Status Report confirms that no complaint was ever made by either deceased student to the police, the SC/ST Cell of IIT Delhi, or any friend on campus regarding caste‑based discrimination. Statements of family, friends, and other SC/ST students examined during the enquiry did not reveal any such discrimination, and the petitioners’ allegations could not be corroborated., The Court acknowledges the tragic loss of two bright young students and the anguish of their parents. It urges the faculty and staff of the Indian Institute of Technology, Delhi to make conscious efforts to counsel, encourage, and motivate students, emphasizing that academic performance should not come at the expense of mental and physical health., Considering the totality of facts and circumstances, this High Court holds that a mandamus cannot be issued in a routine manner merely on the basis of sympathy or sentiment. Accordingly, the present petition, along with any pending applications, is dismissed as devoid of merit.
id_1351	0	Shivaji Nagar Rahivashi Co-operative Housing Society Limited, a society registered under the provisions of the Maharashtra Co-operative Societies Act, 1960 bearing registration no. 1373/2004, having its registered address at G‑4, Shivaji Nagar, D. G. Mahajani Path, Sewree, Mumbai 400015, and Coventry Properties Private Limited, a company incorporated under the provisions of the Companies Act, 1956 and having its registered office at 70, Nagindas Master Road, Fort, Mumbai‑400023, are the petitioners. The State of Maharashtra, through the Urban Development Department, having its office at Mantralya, Mumbai 400032, and the Municipal Corporation of Greater Mumbai, a statutory corporation established and constituted under the provisions of the Mumbai Municipal Corporation Act, 1888, having its office at Mahanagarpalika Building, Mumbai Mahanagarpalika Marg, Mumbai‑400001, are the respondents. Basant Vihar Co-operative Housing Society Limited, a co‑operative housing society registered under the provisions of the Maharashtra Co-operative Societies Act, 1960, having its address at Plot no. 162/2, Old Plot No. 364 and 363 Pt. of SS Scheme, Chembur, Mumbai 400071, Mahavir Enterprises, a partnership firm duly registered under the provisions of the Indian Partnership Act, 1932, having its office at 5, Saras Baug, S.T. Road, Deonar, Mumbai 400088, and Mr. Kiran M. Shah, adult inhabitant and partner of Mahavir Enterprises, having his office at 5, Saras Baug, S.T. Road, Deonar, Mumbai 400088, are also petitioners., The petitioners, State of Maharashtra, Urban Development Department, through the office of the Government Pleader, Bombay High Court (Original Side), PWD Building, Fort, Mumbai 400001, and the Collector, Mumbai Suburban District, through the office of the Government Pleader, Bombay High Court (Original Side), PWD Building, Fort, Mumbai 400001, and the Municipal Corporation of Greater Mumbai, through its Legal Department, Mahapalika Bhavan, CST, Mumbai 400001, and the Sub Engineer, Building Proposals, E.S., Municipal Corporation of Greater Mumbai, Near Raj Legacy, Paper Mill Compound, L.B.S. Marg, Vikhroli (West), Mumbai 400083, are respondents. The respondents are M/s. Neumec Infrastructure LLP, a limited liability partnership incorporated under the provisions of the Limited Liability Partnership Act, 2008 and having its registered office at 807/808, Hubtown Solaris, B Wing, N.S. Phadke Marg, Opp. Telli Galli, Near Regency Hotel, Andheri East, Mumbai 400069, and Abhay Chandak, an adult Indian inhabitant, partner of petitioner No.1, having his office at 807/808, Hubtown Solaris, B Wing, N.S. Phadke Marg, Opp. Telli Galli, Near Regency Hotel, Andheri East, Mumbai 400069., The petitioners are the State of Maharashtra, through its Urban Development Department, Mantralaya, Mumbai, the Municipal Corporation of Greater Mumbai, through the Municipal Commissioner, Head Office, Opp. Azad Maidan, Mumbai 400001, and the Mumbai Housing and Area Development Authority (MHADA), a local authority having its office at Griha Nirman Bhavan, Kalanagar, Bandra (East), Mumbai 400051. The respondent is D.N. Nagar Mangalmurti Co-operative Housing Society Limited, a co‑operative housing society registered under the provisions of the Maharashtra Co-operative Societies Act, 1960 bearing registration of 2000‑2001 dated 05‑06‑2000 and having its registered office at Building No. 2, D.N. Nagar, Andheri (West), Mumbai‑400053., The petitioners are the Mumbai Housing Area Development Authority, a body corporate established under Section 3 of the Maharashtra Housing and Area Development Act, 1976, having its address at Grihanirman Bhavan, Kala Nagar, Bandra (East), Mumbai 400051, the Vice President and Chief Executive Officer of the Mumbai Housing Area Development Authority, having his address at Grihanirman Bhavan, Kala Nagar, Bandra (East), Mumbai‑400051, and the Building Permission Cell, Greater Mumbai, Mumbai Housing Area Development Authority, through the Executive Engineer (B.P. Cell), an officer of respondent No.1, having his office address at Grihanirman Bhavan, Kala Nagar, Bandra (East), Mumbai‑400051. The respondent is a limited liability partnership constituted under the provisions of the Limited Liability Partnership Act, 2008 having its address at 801 & 802, Peninsula Heights, C. D. Barfiwala Marg, Juhu Lane, Andheri‑West, Mumbai‑400058., The petitioners are Moongipa Realty Pvt. Ltd. (formerly known as Axayraj Buildwell Pvt. Ltd.) having its corporate office at 203/204, Raigad Darshan, J.P. Road, Opp. Indian Oil Colony, Andheri West, Mumbai 400053, and Rajesh B. Agarwal, Director of Moongipa Realty Pvt. Ltd., adult Indian inhabitant, having his office at 203/204, Raigad Darshan, J.P. Road, Opp. Indian Oil Colony, Andheri West, Mumbai 400053. The respondents are the Maharashtra Housing & Area Development Authority, a statutory authority constituted under the provisions of the Maharashtra Housing & Area Development Act, 1976, having its office at Griha Nirman Bhavan, Bandra (East), Mumbai 400051, the Vice President of the Maharashtra Housing & Area Development Authority, having its office at Griha Nirman Bhavan, Bandra (East), Mumbai 400051, the Building Permission Cell, Greater Mumbai, Mumbai Housing Area Development Authority, through the Executive Engineer, having its office at Griha Nirman Bhavan, Kala Nagar, Bandra (East), Mumbai‑400051, the Principal Secretary, Housing Department, Government of Maharashtra, Mantralaya, Mumbai, the Municipal Corporation of Greater Mumbai, having its office at Mahapalika Bhavan, Mahapalika Marg, Fort, Mumbai 400001, the Assistant Registrar of Co‑operative Societies (MHADA), Bandra East, Mumbai 400051, D.N. Nagar Shree Ashtavinayak Co‑operative Housing Society Ltd., having its registered office at D.N. Nagar Shree Ashtavinayak CHS Ltd., D.N. Nagar, Ganesh Chowk, Andheri West, Mumbai 400053, and the State of Maharashtra, through its Urban Development Department, Mantralaya, Mumbai., The petitioner is a limited liability partnership registered under the provisions of the Limited Liability Partnership Act, 2005 having its address at 901, Peninsula Heights, Juhu Lane, Andheri (W), Mumbai 400058. The respondents are a body corporate established under Section 3 of the Maharashtra Housing and Area Development Act, 1976, having its address at Grihanirman Bhavan, Kala Nagar, Bandra (East), Mumbai 400051, an officer of respondent No.1 having his office address at the 4th floor, Grihanirman Bhavan, Kala Nagar, Bandra (East), Mumbai 400051, a co‑operative housing society incorporated under the Maharashtra Co‑operative Societies Act, 1960, having its address at Building No.14, D.N. Nagar, Andheri West, Mumbai 400053, and a co‑operative housing society incorporated under the Maharashtra Co‑operative Societies Act, 1960, having its address at Office Building No.6, D.N. Nagar, Andheri West, Mumbai 400053., The petitioner is a company incorporated under the provisions of the Companies Act, 1956 and deemed to have been registered under the Companies Act, 2013, having its address at Sanyukta Bungalow, Plot No. 153‑158, RSC1A, Gorai I, Borivali (West), Mumbai 400091. The respondents are a body corporate established under Section 3 of the Maharashtra Housing and Area Development Act, 1976, having its address at Grihanirman Bhavan, Kala Nagar, Bandra (East), Mumbai 400051, an officer of respondent No.1 having his office address at the Building Permission Cell, Greater Mumbai, MHADA, Bandra (East), Mumbai 400051, a co‑operative housing society incorporated under the Maharashtra Co‑operative Societies Act, 1960 having its address at Plot No. 233, RDP‑5, Sector‑3, Charkop, Kandivali (West), Mumbai 400067, and a co‑operative housing society incorporated under the Maharashtra Co‑operative Societies Act, 1960 having its address at Plot No. 235, RDP‑5, Sector‑3, Charkop, Kandivali (West), Mumbai 400067., The petitioner is a company registered under the provisions of the Companies Act, 1956 and deemed to have been registered under the Companies Act, 2013, having its address at 702, Natraj, M.V. Road Junction, Western Express Highway, Andheri (East), Mumbai 400069. The respondents are a body corporate established under Section 3 of the Maharashtra Housing and Area Development Act, 1976, having its address at Grihanirman Bhavan, Kala Nagar, Bandra (East), Mumbai 400051, and an officer of respondent No.1 having his office address at Grihanirman Bhavan, Kala Nagar, Bandra (East), Mumbai 400051., The petitioner is Society (Bandra East) Group IV Limited, a co‑operative housing society incorporated under the Maharashtra Co‑operative Societies Act, 1960 having its address at Gandhi Nagar, MIG Colony, Bandra (East), Mumbai‑400051. The respondents are the Versova Andheri Hardik Co‑operative Housing Society Limited, registered under the provisions of the Maharashtra Co‑operative Societies Act, 1960, having its address at Survey No. 120 of Village Versova, SVP Nagar at MHADA Layout, Andheri West, Mumbai 400053, and PSC Realtors Private Limited, through its authorized officer/signatory Vikas Prabhakar Joshi, age 57 years, occupation Service, having its registered office at 101, Somnath, Ram Mandir Road, Vile Parle (East), Mumbai 400057., The petitioners are the Maharashtra Housing Area and Development Authority, a body corporate established under Section 3 of the Maharashtra Housing and Area Development Act, 1976, having its office at Grihanirman Bhavan, Kala Nagar, Bandra (East), Mumbai 400051, and the Executive Engineer (Building Proposal), Greater Mumbai, an officer of respondent No.1, having its office address at the Building Permission Cell, Greater Mumbai, MHADA, Bandra (East), Mumbai 400051. The respondent is a company registered under the Indian Companies Act, 1956, having its office at C‑101, Chanakya, New Link Road, Mahavir Nagar, Kandivali West, Mumbai‑400062., The petitioner is a body corporate established under Section 3 of the Maharashtra Housing and Area Development Act, 1976, having its address at Grihanirman Bhavan, Kala Nagar, Bandra (East), Mumbai 400051. The respondents are the Building Permission Cell, Greater Mumbai, Mumbai Housing Area Development Authority, an officer of respondent No.1 having his office address at Grihanirman Bhavan, Kala Nagar, Bandra (East), Mumbai‑400051, a society registered under the Maharashtra Co‑operative Societies Act under registration No. BOM/HSG/7767/1982‑83 having its office at Building No.67, Gandhi Nagar, Bandra (East), Mumbai 400051, and a society registered under the Maharashtra Co‑operative Societies Act under registration No. 1325/84/85 having its office at Building No.68, Gandhi Nagar, Bandra (East), Mumbai 400051., The petitioners are Teachers Colony Co‑operative Housing Society Limited, registered under the Maharashtra Co‑operative Societies Act, 1960, having its address at Building No.1 & 2, Survey No.379, CTS No.609, Village Bandra (East), Taluka Andheri, District‑Mumbai Suburban, Mumbai‑400051, through its constituted attorney Mr. Shrikant P. Paranjape. The respondents are the Maharashtra Housing Area and Development Authority, a body corporate established under Section 3 of the Maharashtra Housing and Area Development Act, 1976, having its office at Grihanirman Bhavan, Kala Nagar, Bandra (East), Mumbai 400051, and the Executive Engineer (Building Proposal), Greater Mumbai, an officer of respondent No.1, having its office address at the Building Permission Cell, Greater Mumbai, MHADA, Bandra (East), Mumbai 400051., The petitioners are Dadbhawala Co‑operative Housing Society Ltd., through its authorised representative Mr. Shri Shantilal Dhanji Dedhia, having its address at 384, Telang Cross Road, Matunga East, Mumbai 400019, and Shree Falvruddhi Developers, through Shri Shantilal Dhanji Dedhia, a proprietorship firm carrying on business at Purna Shanti, 174, Nathalal Parekh Marg, Wadala (West), Mumbai 400031. The respondents are the State of Maharashtra, through the Urban Development Department, Government of Maharashtra, through the office of the Government Pleader, Bombay High Court (Original Side), PWD Building, Fort, Mumbai 400001, the Municipal Corporation of Greater Mumbai, through its office at Mahapalika Marg, M.G. Road, Fort, Mumbai 400001, and the Executive Engineer (Building Proposal), New Municipal Building No.355B, Bhagwan Walmiki Chowk, Vidyalankar Marg, Opp. Hanuman Mandir, Salt Pan Road, Antop Hill, Wadala (East), Mumbai 400037., The petitioners are Trilochan Co‑operative Housing Society Ltd., having its address at Building No.25, 26 & 27 in Sardar Nagar No.2, GTB Nagar, Sion Koliwada (East), Mumbai 400022, through its lawful attorneys Mr. Ashok Mehra, Managing Director of Shikara Constructions Private Limited, a company incorporated under the provisions of the Companies Act, 1956, having its office at 204, Bezzola Complex, Opp. Suman Nagar, Sion Trombay Road, Chembur, Mumbai 400071, and Shikara Constructions Private Limited, a company incorporated under the provisions of the Companies Act, 1956, having its registered office at 204, Bezzola Complex, Opp. Suman Nagar, Sion Trombay Road, Chembur, Mumbai 400071. The respondents are the Maharashtra Housing and Area Development Authority, an authority established and constituted under the provisions of the Maharashtra Housing and Area Development Act, 1976, having its office at Griha Nirman, Mumbai‑400051, and the Executive Engineer (B.P. Cell), Greater Mumbai, MHADA, Griha Nirman Bhavan, Bandra (West), Mumbai‑400051., The petitioners are Jayamata Co‑operative Housing Society Ltd., a cooperative housing society registered under the provisions of the Maharashtra Co‑operative Societies Act, 1960, having its registered office at Paramjyoti, Plot No.9, Pestom Sagar Road No.4, Tilak Nagar, P.O. Chembur, Mumbai 400089, and Shri Sati Builders & Developers Pvt. Ltd., a company registered under the provisions of the Companies Act, 1956, having its office at 149/156, Garodia Shopping Centre, Garodia Nagar, Ghatkopar (East), Mumbai 400077. The respondents are the State of Maharashtra, through the Collector/Additional Collector’s Office, Mumbai Suburban District, through the office of the Government Pleader, High Court (Original Side), Bombay, PWD Building, Fort, Mumbai 400001, the Municipal Corporation of Greater Mumbai, having its office at Mahapalika Marg, M.G. Road, Fort, Mumbai 400001, and the Executive Engineer (Building Proposals), Eastern Suburbs, Municipal Corporation of Greater Mumbai, at the office of Deputy Chief Engineer (B.P.) Eastern Suburbs, Near Raj Legacy, Paper Mill Compound, L.B.S. Marg, Vikhroli (West), Mumbai 400083., The petitioners are the Middle Income Group Co‑operative Housing Society Group V Limited, a society registered under the provisions of the Maharashtra Co‑operative Societies Act, 1960 bearing registration no. BOM/HSG/8045/1983, having its registered address at Gandhi Nagar, MIG Colony, Bandra (East), Mumbai 400051, and Kalpataru Properties Private Limited, a company incorporated under the provisions of the Companies Act, 1956, having its registered office at 101, Kalpataru Synergy, Opp. Grand Hyatt, Santacruz (East), Mumbai 400055. The respondents are the State of Maharashtra, through the Urban Development Department, having its office at Mantralaya, Mumbai 400032, the Municipal Corporation of Greater Mumbai, a statutory corporation established and constituted under the provisions of the Mumbai Municipal Corporation Act, 1888, having its office at Annexe Building, Mahapalika Marg, Mumbai‑400001, and the Maharashtra Housing and Area Development Authority, an authority established and constituted under the provisions of the Maharashtra Housing and Area Development Act, 1976, having its office at Griha Nirman Bhavan, Kala Nagar, Bandra (East), Mumbai 400051., The petitioners are a co‑operative housing society registered under the Maharashtra Co‑operative Societies Act, 1960, having its address at Akshay Building, Plot No.15, Krishna Chandra Marg, Bandra Reclamation, Bandra (West), Mumbai 400050, and a co‑operative housing society registered under the Maharashtra Co‑operative Societies Act, 1960, having its address at Safalya Building, Plot No.14, Krishna Chandra Marg, Bandra Reclamation, Bandra (West), Mumbai 400050. The respondents are a body corporate established under Section 3 of the Maharashtra Housing and Area Development Act, 1976, having its address at Grihanirman Bhavan, Kala Nagar, Bandra (East), Mumbai 400051, an officer of respondent No.1 having his office address at Grihanirman Bhavan, Kala Nagar, Bandra (East), Mumbai 400051, and a company incorporated under the provisions of the Companies Act, 2013, having its registered office at Ground Floor, Sukh Shanti, Plot No‑65, Opp. PNB, 8th Road, Juhu Scheme, Vile Parle (West), Mumbai 400049., The petitioners are Adarsh Nagar Shree Adarsh Cooperative Housing Society Limited, a society registered under the provisions of the Maharashtra Co‑operative Housing Society Act, 1960, situated on CTS No.1 (part), Village Oshiwara, Taluka Andheri, District Mumbai Suburban, having its address at 671 Adarsh Nagar, Oshiwara, New Link Road, Jogeshwari (West), Mumbai 400102, and M/s. Sunbeam Hightech Developers Private Limited, having its address at 1, Paras Building, ground floor, BonBon Lane, Andheri (West), Mumbai 400058. The respondents are the Mumbai Housing Area Development Authority, a body corporate established under Section 3 of the Maharashtra Housing and Area Development Act, 1976, having its address at Grihanirman Bhavan, Kala Nagar, Bandra (East), Mumbai 400051, the Vice President and Chief Executive Officer of the Mumbai Housing Area Development Authority, having his address at Grihanirman Bhavan, Kala Nagar, Bandra (East), Mumbai 400051, the Building Permission Cell, Greater Mumbai, Mumbai Housing Area Development Authority, through the Executive Engineer (B.P. Cell) Greater Mumbai/MHADA, having its office at Grihanirman Bhavan, Kala Nagar, Bandra (East), Mumbai 400051, and the State of Maharashtra, through the Secretary, Urban Development Department, Mantralaya, Mumbai 400032., The petitioners are a co‑operative housing society registered under the Maharashtra Co‑operative Societies Act, 1960, having its address at Building No.3, Oshiwara, New Link Road, Jogeshwari, and a body corporate established under Section 3 of the Maharashtra Housing and Area Development Act, 1976, having its address at Grihanirman Bhavan, Kala Nagar, Bandra (East), Mumbai 400051. The respondents are an officer of respondent No.1 having his office address at Grihanirman Bhavan, Kala Nagar, Bandra (East), Mumbai 400051, a company incorporated under the provisions of the Companies Act, 1956 and validly existing under the provisions of the Companies Act, 2013, having its registered office at 10th Floor, Dev Plaza, S.V. Road, Andheri (West), Mumbai 400058, and a partnership firm registered under the provisions of the Indian Partnership Act, 1932, having its principal place of business at 8, ground floor, Abhishek Building, behind Kuber Complex, opposite Laxmi Industrial Estate, New Link Road, Andheri (West), Mumbai 400053., The petitioners are a body corporate established under Section 3 of the Maharashtra Housing and Area Development Act, 1976, having its address at Grihanirman Bhavan, Kala Nagar, Bandra (East), Mumbai 400051, an officer of respondent No.1 having his office address at Building Permission Cell, Greater Mumbai, MHADA, Bandra (East), Mumbai 400051, a co‑operative housing society incorporated under the Maharashtra Co‑operative Societies Act, 1960 having its address at Building 138, Nehru Nagar, Kurla (East), Mumbai 400024. The respondents are Bleu Noir Infrastructure Development Private Limited, a company incorporated under the provisions of the Companies Act, 1956, having its registered office at 2nd Floor, Dev Plaza, Opp. Andheri Fire Station, S.V. Road, Andheri (West), Mumbai 400048, and Rushabh P. Satra, Director of petitioner No.1, having his registered office at 2nd Floor, Dev Plaza, Opp. Andheri Fire Station, S.V. Road, Andheri (West), Mumbai 400048., The petitioners are the State of Maharashtra, through i) the Principal Secretary, Housing Department, Government of Maharashtra, Mantralaya, Mumbai 400032, and ii) the Principal Secretary, Urban Development Department, Mantralaya, Mumbai 400032, the Maharashtra Housing & Development Authority, a statutory authority constituted under the provisions of the Maharashtra Housing & Area Development Act, 1976, having its office at Griha Nirman Bhavan, Kala Nagar, Bandra (East), Mumbai‑400051, the Vice President of the Maharashtra Housing & Development Authority, having its office at Griha Nirman Bhavan, Kala Nagar, Bandra (East), Mumbai 400051, the Building Permission Cell, Greater Mumbai, Mumbai Housing Area & Development Authority, through the Executive Engineer (B.P. Cell) Greater Mumbai/MHADA, having its office at Griha Nirman Bhavan, Kala Nagar, Bandra (East), Mumbai 400051, the Municipal Corporation of Greater Mumbai, having its office at Mahapalika Bhavan, Mahapalika Marg, Fort, Mumbai 400001, the Assistant Registrar of Co‑operative Societies (MHADA), Bandra (East), Mumbai 400051, and Lenyadri Co‑operative Housing Society Limited, having its registered office at Building No.9, Shastri Nagar, Road No.2, Goregaon (West), Mumbai 400004. The respondents are a partnership firm formerly known as Raghav Raj Builders & Developers, having its address at 7/321, Ninad CHSL, Building No.7, Kher Nagar, Bandra (East), Mumbai‑400051.
id_1351	1	A co-operative housing society incorporated under the Maharashtra Co-operative Societies Act, 1960 having its address at Building 45, Nehru Nagar, Kurla (East), Mumbai 400024. Respondents: a society registered under the Maharashtra Co-operative Societies Act, 1960 (MAH.XXIV of 1961) under Registration No. BOM/HSG/8002 dated 30th April 1983 having its address at Plot No.M, Building No. 13 (MIG), Gulmohar Cross Road No. 6, Mumbai 400049; a partnership firm registered under the Indian Partnership Act, 1932, having its registered office at 14A Paper Box Estate, off Mahakali Caves Road, Andheri (East), Mumbai 400093 and having its administrative office at Aditya A‑Wing, Podium, 1st Floor, Samarth Ramdas Marg, Gulmohar Cross Road, Mumbai 400049. Petitioners: The State of Maharashtra through the Urban Development Department, having its office at Mantralaya, Mumbai 400032, through Government Pleader (Original Side), High Court, Mumbai 400032; the Municipal Corporation of Greater Mumbai, a statutory corporation established under the Mumbai Municipal Corporation Act, 1888, having its office at Mahanagarpalika Building, Mumbai Mahanagarpalika Marg, Mumbai 400001; Maharashtra Housing and Area Development Authority, an authority established under the Maharashtra Housing and Area Development Act, 1976, having its office at Legal Department, Griha Nirman Bhavan, 4th Floor, Maharashtra Housing and Area Development Authority, Bandra (East), Mumbai 400051. Respondents: Majaswadi Sarvodaya Nagar Co-operative Housing Society Union Limited, a society registered under the Maharashtra Co-operative Societies Act, 1960 bearing registration number and having its registered address at 72/513 MHB Colony, Sarvodaya Nagar, Majaswadi CTS No.160A/1, 162, 163, 165 and 170/C, Village Majas, Jogeshwari (East), Mumbai 400060; Acme Realties Private Limited, a company incorporated under the Companies Act, 1956 and having its registered office at Building No.10, 5th floor, Solitaire Corporate Park, Guru Hargovindji Road, Andheri (East), Chakala, Mumbai 400093., M/s. Nayan Builders, a firm registered under the Indian Partnership Act, 1932, having its principal office at Meghdoot, Vallabh Baug Lane, Ghatkopar (East), Mumbai 400077. Petitioners: The State of Maharashtra, Urban Development Department, through the office of the Government Pleader, Bombay High Court (Original Side), PWD Building, Fort, Mumbai 400001; Municipal Corporation of Greater Mumbai, having its office at Mahapalika Marg, M.G. Road, Fort, Mumbai 400001; Executive Engineer, Building Proposals (City‑II), Assistant Engineer Building Proposal (City‑V), New Municipal Building C.S. No. 355‑B, Bhagwan Walmiki Chowk, Vidyalankar Road, Opposite Hanuman Mandir, Salt Pan Road, Antop Hill, Wadala East, Mumbai 400037., D. N. Nagar Tirupati Co-operative Housing Society Limited, a co-operative housing society registered under the Maharashtra Co-operative Societies Act, 1960 having its registered address at Building No.7, D. N. Nagar, Andheri (West), Mumbai 400053. Petitioners: The Municipal Corporation of Greater Mumbai, a statutory corporation constituted under the Mumbai Municipal Corporation Act, 1888 having its address at Mahapalika Marg, Mumbai 400001; the Municipal Commissioner, having his office at 1st Floor, Municipal Head Office Extension Building, Mahapalika Marg, Mumbai 400001; Maharashtra Housing and Area Development Authority, a body corporate established under Section 3 of the Maharashtra Housing and Area Development Act, 1976, having its address at Griha Nirman Bhavan, Kala Nagar, Bandra (East), Mumbai 400051; Tirupati Gruhpravesh Limited Liability Partnership, a limited liability partnership constituted under the Limited Liability Partnership Act, 2008 having its address at 1st Floor, Premsons Shopping Centre, Station Road, Jogeshwari (East), Mumbai 400060., D. N. Nagar Shivkrupa Co-operative Housing Society Limited, a co-operative housing society registered under the Maharashtra Co-operative Societies Act, 1960 having its registered address at Building No.4, D. N. Nagar, Andheri (West), Mumbai 400053. Petitioners: The Municipal Corporation of Greater Mumbai, a statutory corporation constituted under the Mumbai Municipal Corporation Act, 1888 having its address at Mahapalika Marg, Mumbai 400001; the Municipal Commissioner, having his office at 1st Floor, Municipal Head Office Extension Building, Mahapalika Marg, Mumbai 400001; Maharashtra Housing and Area Development Authority, a body corporate established under Section 3 of the Maharashtra Housing and Area Development Act, 1976, having its address at Griha Nirman Bhavan, Kala Nagar, Bandra (East), Mumbai 400051; Shivkrupa Gruhpravesh Limited Liability Partnership, a limited liability partnership constituted under the Limited Liability Partnership Act, 2008 having its address at 1st Floor, Premsons Shopping Centre, Station Road, Jogeshwari (East), Mumbai 400060., D. N. Nagar Akshay Co-operative Housing Society Limited, a co-operative housing society registered under the Maharashtra Co-operative Societies Act, 1960 having its registered address at Building No.1, D. N. Nagar, Andheri (West), Mumbai 400053. Petitioners: The Municipal Corporation of Greater Mumbai, a statutory corporation constituted under the Mumbai Municipal Corporation Act, 1888 having its address at Mahapalika Marg, Mumbai 400001; the Municipal Commissioner, having his office at 1st Floor, Municipal Head Office Extension Building, Mahapalika Marg, Mumbai 400001; Maharashtra Housing and Area Development Authority, a body corporate established under Section 3 of the Maharashtra Housing and Area Development Act, 1976, having its address at Griha Nirman Bhavan, Kala Nagar, Bandra (East), Mumbai 400051; Akshay Gruhpravesh Limited Liability Partnership, a limited liability partnership constituted under the Limited Liability Partnership Act, 2008 having its address at 1st Floor, Premsons Shopping Centre, Station Road, Jogeshwari (East), Mumbai 400060., Epitome Residency Private Limited, a company incorporated under the Companies Act, 1956 and having its registered office at ONE BKC, A Wing 1401, Plot No. C‑66, G‑Block, Bandra Kurla Complex, Bandra (East), Mumbai 400051. Petitioners: The State of Maharashtra, Urban Development Department, Government of Maharashtra, through the office of Government Pleader, Bombay High Court (Original Side), PWD Building, Fort, Mumbai 400001; Municipal Corporation of Greater Mumbai, through the Brihanmumbai Electric Supply and Transport Undertaking, Legal Department, Mahapalika Marg, M.G. Road, Fort, Mumbai 400001; Executive Engineer, Building Proposal (West), P/S, Municipal Corporation of Greater Mumbai, CTS No.746, Village Pahadi, Swami Vivekanand Road, Near Goregaon Sky Walk, Jawahar Nagar, Goregaon (West), Mumbai 400104; Brihanmumbai Electric Supply and Transport Undertaking, having its head office at BEST Bhavan, Best Marg, Colaba, Mumbai 400001., M/s. Radius & Deserve Builders Limited Liability Partnership (formerly known as M/s. Wadhwa & Deserve Builders Limited Liability Partnership), ONE BKC, A‑1401, 14th Floor, Plot No. C‑66, G‑Block, Bandra Kurla Complex, Bandra (East), Mumbai 400051. Petitioners: The State of Maharashtra, through the Collector, Government of Maharashtra, through the office of Government Pleader, Bombay High Court (Original Side), PWD Building, Fort, Mumbai 400001; Slum Rehabilitation Authority, 5th Floor, Griha Nirman Bhavan, Bandra (East), Mumbai 400051; Executive Engineer, Slum Rehabilitation Authority, Anand Kanekar Marg, Bandra (East), Mumbai 400051., S. D. Corporation Private Limited, a company incorporated and registered under the Companies Act, 1956 having its registered office at 70, Nagindas Master Road, Fort, Mumbai 400023. Petitioners: The State of Maharashtra, through the Collector, Government of Maharashtra, through the office of Government Pleader, Bombay High Court (Original Side), PWD Building, Fort, Mumbai 400001; Slum Rehabilitation Authority, 5th Floor, Griha Nirman Bhavan, Bandra (East), Mumbai 400051; Executive Engineer, Slum Rehabilitation Authority, Anant Kanekar Marg, Bandra (East), Mumbai., Gorai Shri Shiv Parvati Co-operative Housing Society Limited, a society registered under the Maharashtra Co-operative Societies Act, 1960 situated on Plot No.8, RSC‑3 Maharashtra Housing Area Development Authority layout, Gorai‑3, Borivali (West), Mumbai 400092; M/s. Shree Krishna Developer Corporation, a registered partnership firm having its office at Narayan Printing, 135, Ram Mandir Road, Oshiwara, Jogeshwari (West), Mumbai 400104. Petitioners: Maharashtra Housing and Area Development Authority, a body corporate established under Section 3 of the Maharashtra Housing and Area Development Act, 1976, having its address at Griha Nirman Bhavan, Kala Nagar, Bandra (East), Mumbai 400051; Vice President and Chief Executive Officer, Maharashtra Housing and Area Development Authority, having his address at Griha Nirman Bhavan, Kala Nagar, Bandra (East), Mumbai 400051; Building Permission Cell, Greater Mumbai, Maharashtra Housing and Area Development Authority, through Executive Engineer (Building Permission Cell), Greater Mumbai / Maharashtra Housing and Area Development Authority, having its office at Griha Nirman Bhavan, Kala Nagar, Bandra (East), Mumbai 400051; The State of Maharashtra through the Secretary, Urban Development Department, Mantralaya, Mumbai 400032., Gorai Shri Shiv Shankar Co-operative Housing Society Limited, a society registered under the Maharashtra Co-operative Societies Act, 1960 situated on Plot No.7, RSC‑3 Maharashtra Housing Area Development Authority layout, Gorai‑3, Borivali (West), Mumbai 400092; M/s. Shree Krishna Developer Corporation, a registered partnership firm having its office at Narayan Printing, 135, Ram Mandir Road, Oshiwara, Jogeshwari (West), Mumbai 400104. Petitioners: Maharashtra Housing and Area Development Authority, a body corporate established under Section 3 of the Maharashtra Housing and Area Development Act, 1976, having its address at Griha Nirman Bhavan, Kala Nagar, Bandra (East), Mumbai 400051; Vice President and Chief Executive Officer, Maharashtra Housing and Area Development Authority, having his address at Griha Nirman Bhavan, Kala Nagar, Bandra (East), Mumbai 400051; Building Permission Cell, Greater Mumbai, Maharashtra Housing and Area Development Authority, through Executive Engineer (Building Permission Cell), Greater Mumbai / Maharashtra Housing and Area Development Authority, having its office at Griha Nirman Bhavan, Kala Nagar, Bandra (East), Mumbai 400051; The State of Maharashtra through the Secretary, Urban Development Department, Mantralaya, Mumbai 400032., A Limited Liability Partnership having its registered address at Shop No.2, C Wing, Stella Residency, Kannamwar Nagar I, Vikhroli (East), Mumbai 400083. Petitioners: A body corporate established under Section 3 of the Maharashtra Housing and Area Development Act, 1976, having its address at Griha Nirman Bhavan, Kala Nagar, Bandra (East), Mumbai 400051; an officer of Respondent No.1 having his office address at Building Permission Cell, Maharashtra Housing and Area Development Authority, Bandra (East), Mumbai 400051. Respondents: D. N. Nagar Shivneri Co-operative Housing Society Limited, a society registered under the Maharashtra Co-operative Societies Act, 1960 having its address at Building No.5, D. N. Nagar, Andheri (West), Mumbai 400053; Ms. Neena Pardesi, Committee Member of D. N. Nagar Shivneri Co-operative Housing Limited, Adult, Indian Inhabitant, residing at Building No.5, Ganesh Chowk, D. N. Nagar, Andheri (West), Mumbai 400053., Maharashtra Housing and Area Development Authority, a statutory authority constituted under the Maharashtra Housing and Area Development Act, 1976, having its office at Griha Nirman Bhavan, Bandra (East), Mumbai 400051; Vice President, Maharashtra Housing and Area Development Authority, having its office at Griha Nirman Bhavan, Bandra (East), Mumbai 400051; Building Permission Cell, Greater Mumbai, Maharashtra Housing and Area Development Authority, through the Executive Engineer having its office at Griha Nirman Bhavan, Kala Nagar, Bandra (East), Mumbai 400051; The Principal Secretary, Housing Department, Government of Maharashtra, Mantralaya, Mumbai; Municipal Corporation of Greater Mumbai, having its office at Mahapalika Bhavan, Mahapalika Marg, Fort, Mumbai 400001; Assistant Registrar of Co-operative Societies (Maharashtra Housing and Area Development Authority), Bandra East, Mumbai 400051; The State of Maharashtra, through its Urban Development Department, Mantralaya, Mumbai., A co-operative housing society duly registered under the Maharashtra Co-operative Societies Act, 1960 having its registered office at Building No.1, D. N. Nagar, Andheri (West), Mumbai 400053; a partnership firm duly registered under the Indian Partnership Act, 1932, having its principal place of business at Aditya, A Wing, Podium Office No.2, Gulmohar Cross Road No.7, Samarth Ramdas Marg, Juhu Vile Parle Development Scheme, Mumbai 400049; Snehal Patel of Mumbai, Indian Inhabitant, having his address at Aditya, A Wing, Podium Office No.2, Gulmohar Cross Road No.7, Samarth Ramdas Marg, Juhu Vile Parle Development Scheme, Mumbai 400049., Vishal Pant Nagar Co-operative Housing Society Limited, having its office at Building No.127 & 128, Building No.105/3159, Opposite Post Office, Pant Nagar, Ghatkopar (East), Mumbai 400075; M/s. Kesar Housing and Development Co., a registered partnership firm having its office at Kesar Solitaire Office Nos.802‑804, 8th Floor, Plot No.5, Sector 19, Sanpada, Navi Mumbai 400705. Petitioners: The State of Maharashtra, through the Urban Development Department, Mantralaya, Mumbai; Municipal Corporation of Greater Mumbai, a body incorporated under the Mumbai Municipal Corporation Act, 1888, having its office at Mahapalika Road, Mumbai 400001; Maharashtra Housing and Area Development Authority, a body incorporated under the Maharashtra Housing and Area Development Authority Act, 1976, having its office at Griha Nirman Bhavan, Bandra (East), Mumbai 400051., Dattashram Cooperative Housing Society Limited, having its office at Plot No.62, C.S. No.60/10, Matunga Division, Sir Balchandra Road, Hindu Colony, Dadar (East), Mumbai 400014; Troika Construction Company, a registered partnership firm, through Mr. Arun Balkrishna Chitale, having its office at Broadway Shopping Centre, Dadar (East), Mumbai 400014; M/s. Kesar Corporation, a registered partnership firm having its office at Kesar Solitaire Office Nos.802‑804, 8th Floor, Plot No.5, Sector 19, Sanpada, Navi Mumbai 400705. Petitioners: The State of Maharashtra, through the Urban Development Department, Mantralaya, Mumbai; Municipal Corporation of Greater Mumbai, a body incorporated under the Mumbai Municipal Corporation Act, 1888, having its office at Mahapalika Road, Mumbai 400001; Maharashtra Housing and Area Development Authority, a body incorporated under the Maharashtra Housing and Area Development Authority Act, 1976, having its office at Griha Nirman Bhavan, Bandra (East), Mumbai 400051., Dinesh Abhechand Gandhi, Vikhram Abhechand Gandhi and Rajendra Abhechand Gandhi, all adults, Indian inhabitants, residing at Ghanshyam Baug, 3rd Floor, Matunga, Mumbai 400019; M/s. Kesar Housing and Development Co., a registered partnership firm having its office at Kesar Solitaire Office Nos.802‑804, 8th Floor, Plot No.5, Sector 19, Sanpada, Navi Mumbai 400705. Petitioners: The State of Maharashtra, through the Urban Development Department, Mantralaya, Mumbai; Municipal Corporation of Greater Mumbai, a body incorporated under the Mumbai Municipal Corporation Act, 1888, having its office at Mahapalika Road, Mumbai 400001; Maharashtra Housing and Area Development Authority, a body incorporated under the Maharashtra Housing and Area Development Authority Act, 1976, having its office at Griha Nirman Bhavan, Bandra (East), Mumbai 400051., M/s. Goodbuild (India) Private Limited, a company registered under the Companies Act, 1956 and having its office at 9‑B/302 God Gift Tower, M.R. Chowk, Hill Road, Bandra (West), Mumbai, through its directors Mr. Rashad Ahmed Mujawar and Mr. Arshad Mohammed Zaheer. Petitioners: Maharashtra Housing and Area Development Authority, a body corporate established under Section 3 of the Maharashtra Housing and Area Development Act, 1976, having its address at Griha Nirman Bhavan, Kala Nagar, Bandra (East), Mumbai 400051; the Executive Engineer, Building Permission Cell, Greater Mumbai, Maharashtra Housing and Area Development Authority, an officer of Respondent No.1, having his office at Griha Nirman Bhavan, Kala Nagar, Bandra (East), Mumbai 400051; Versova Andheri Vasundhara Co-operative Housing Society Limited, a co-operative housing society incorporated under the Maharashtra Co-operative Societies Act, 1960, having its registered address No.13748/51 (Part), Municipal K/West Ward, Versova, Andheri (West), Mumbai 400053, through its Secretary., Sahakar Nagar Udaya Bhavan Co-operative Housing Society Limited, a co-operative housing society registered under the Maharashtra Co-operative Societies Act, 1960, having its registered office at Building No.9, Sahakar Nagar, Udaya Bhuvan CHSL Shell Colony, Chembur, Mumbai 400071; Shree Krishna Homes Private Limited, a company incorporated under the Companies Act, 1956, having its corporate office at Sethna Manor, 6th floor, Plot No.369, 6th Road, Chembur, Mumbai 400071. Petitioners: The State of Maharashtra, through the Urban Development Department, Government of Maharashtra, through the office of Government Pleader, High Court, Bombay, PWD Building, Fort, Mumbai 400001; Municipal Corporation of Greater Mumbai, having its office at Mahapalika Marg, M.G. Road, Fort, Mumbai 400001; Executive Engineer, Building Proposals, M‑Ward, Municipal Corporation of Greater Mumbai, at the office of Deputy Chief Engineer (Building Permission), Eastern Suburbs office, near Raj Legacy, Paper Mill Compound, L.B.S. Marg, Vikhroli (West), Mumbai; Maharashtra Housing and Area Development Authority, having its office at Griha Nirman Bhavan, Kala Nagar, Bandra (East), Mumbai 400050., Tagore Nagar Pushpanjali Co-operative Housing Society Limited, formed under the Maharashtra Co-operative Housing Societies Act, 1960 bearing Registration No. BOM/HSG/1400/84‑85 dated 31/05/1985, having its registered office at Building No.13, Tagore Nagar, Vikhroli, Mumbai 400083; M/s. Shreedham Developer, a registered partnership firm having its office at 1201, Universal Majestic, Opposite R.B.K. International School, Chembur, Mumbai 400043. Petitioners: Mumbai Housing and Area Development Authority, a body corporate established under Section 3 of the Maharashtra Housing and Area Development Act, 1976, having its address at Griha Nirman Bhavan, Kalanagar, Bandra (East), Mumbai 400051; Vice President and Chief Executive Officer, Mumbai Housing and Area Development Authority, having his office at Griha Nirman Bhavan, Kalanagar, Bandra (East), Mumbai 400051; Building Permission Cell, Greater Mumbai, Mumbai Housing and Area Development Authority, through Executive Engineer (Building Permission Cell), Greater Mumbai / Maharashtra Housing and Area Development Authority, having its office at Griha Nirman Bhavan, Kalanagar, Bandra (East), Mumbai 400051; The State of Maharashtra through the Secretary, Urban Development Department, Mantralaya, Mumbai 400032., Vir Bhuvan Co-operative Housing Society Limited, a society registered under the Maharashtra Co-operative Societies Act, 1961 having its address at 102, 103, Smag House, 1st floor, Plot No.157‑A, Sarojini Road Extension, Vile Parle (West), Mumbai 400056; Parinee Vir Bhuvan Redevelopment Private Limited, a company incorporated under the Companies Act, 1956 and having its office at 102/103, Smag House, 1st floor, Plot No.157‑A, Sarojini Road Extension, Vile Parle (West), Mumbai 400056. Petitioners: The State of Maharashtra, through the Urban Development Department, having its office at Mantralaya, Mumbai 400032; Maharashtra Housing and Area Development Authority, having its address at Griha Nirman Bhavan, Kala Nagar, Bandra (East), Mumbai 400051; Executive Engineer (Building Permission), Building Permission Cell, Greater Mumbai, having its address at Maharashtra Housing and Area Development Authority Building, Griha Nirman Bhavan, Kala Nagar, Bandra (East), Mumbai 400051.
id_1351	2	Adult Indian inhabitant residing at Sai Prasad, 10th Road, Chembur, Mumbai 400071, through her Power of Attorney holder Mr Kiran M Shah. M/s Trinity Builders, a partnership firm duly registered under the provisions of the Indian Partnership Act 1932, having its office at 204 Akshay Plaza, 1st Road, Chembur, Mumbai 400071. Kiran M Shah, adult Indian inhabitant, partner of M/s Trinity Builders, having his office at Office No 204 Akshay Plaza, 1st Road, Chembur, Mumbai 400071. Petitioners versus State of Maharashtra, Urban Development Department, through the office of the Government Pleader, Bombay High Court, Public Works Department Building, Fort, Mumbai 400001; the Collector, Mumbai Suburban District, through the office of the Government Pleader, Bombay High Court, Public Works Department Building, Fort, Mumbai 400001; Municipal Corporation of Greater Mumbai, through its Legal Department, Mahapalika Bhavan, CST, Mumbai 400001; Sub Engineer, Building Proposals, Executive Engineer, Municipal Corporation of Greater Mumbai, Near Raj Legacy, Paper Mill Compound, L B S Marg, Vikhroli West, Mumbai 400083. Respondents., Richa Realtors Private Limited, a company registered under the Companies Act 1956, having its registered office at 101 Kshitij Building, Sena Bhavan Path, Dadar West, Mumbai 400028, and Mr Anil Baburao Thote, Director of the petitioner, having his office at 101 Kshitij Building, Sena Bhavan Path, Dadar West, Mumbai 400028, are petitioners. Petitioners versus State of Maharashtra, through the Government Pleader, Public Works Department Building, High Court, Mumbai; Municipal Corporation of Greater Mumbai, a statutory corporation incorporated under the provisions of the Mumbai Municipal Corporation Act 1888, having its registered office at Mahapalika Bhavan, Mahapalika Marg, Mumbai 400001; the Municipal Commissioner, Municipal Corporation of Greater Mumbai, having his office at Mahapalika Marg, Fort, Mumbai 400001; Building Proposal Department, Near Bhabha Hospital, Bandra West, Mumbai 400050; Building Proposal Department, West Side, R K Patkar Marg, Near Bhabha Hospital, Bandra West, Mumbai 400050; Maharashtra Housing and Area Development Authority, Grihanirman Bhavan, Kala Nagar, Bandra East, Mumbai 400051. Respondents., Richa Realtors Private Limited, a company registered under the Companies Act 1956, having its registered office at 101 Kshitij Building, Sena Bhavan Path, Dadar West, Mumbai 400028, and Mr Anil Thote, Partner of the petitioner, having his office at 101 Kshitij Building, Sena Bhavan Path, Dadar West, Mumbai 400028, are petitioners. Petitioners versus State of Maharashtra, through the Government Pleader, Public Works Department Building, High Court, Mumbai; Municipal Corporation of Greater Mumbai, a statutory corporation incorporated under the provisions of the Mumbai Municipal Corporation Act 1888, having its registered office at Mahapalika Bhavan, Mahapalika Marg, Mumbai 400001; the Municipal Commissioner, Municipal Corporation of Greater Mumbai, having his office at Mahapalika Marg, Fort, Mumbai 400001; Building Proposal Department, Executive Engineer Section 1st Floor, Rajlingsi Building, Paper Mill Compound, L B S Road, Vikhroli West, Mumbai 400078; Deputy Chief Engineer, Building Proposal Executive Engineer Section 1st Floor, Rajlingsi Building, Paper Mill Compound, L B S Road, Vikhroli West, Mumbai 400078; Maharashtra Housing and Area Development Authority, Grihanirman Bhavan, Kala Nagar, Bandra East, Mumbai 400051. Respondents., A partnership firm registered under the Indian Partnership Act 1932, having its registered office at Shop No 1, Kalina Sangam CHS Ltd, Plot No 4917, Kole Kalyan, Kalina, Manipada, Santacruz East, Mumbai 400, is a respondent. A body corporate established under Section 3 of the Maharashtra Housing and Area Development Act 1976, having its address at Grihanirman Bhavan, Kala Nagar, Bandra East, Mumbai 400051, is a respondent. An officer of Respondent No 1, having his office address at Building Permission Cell, Maharashtra Housing and Area Development Authority, Bandra East, Mumbai 400051, is a respondent. A co-operative housing society incorporated under the Maharashtra Co-operative Societies Act 1960, having its address at 36/1 Tilak Nagar, Chembur, Mumbai 400089, is a respondent. A company registered under the Companies Act 1956 and deemed to have been registered under the Companies Act 2013, having its address at 3rd Floor, Plot No 3/8, Hamilton House, J N Heredia Marg, Ballard Estate, Mumbai 400038, is a respondent., Vikhroli Saikrupa Co-operative Housing Society Limited, formed under the provisions of the Maharashtra Co-operative Housing Societies Act 1960, bearing Registration No BOM HSG 1790 1985-86 dated 31/01/1986, having its registered office at Building No 6, Tagore Nagar, Vikhroli, Mumbai 400083, is a petitioner. M/s Nirvaana Constructions Limited Liability Partnership, a partnership firm registered under the Limited Liability Partnership Act 2008, having its office at 1205 Universal Majestic, Opposite R B K International School, Chembur, Mumbai 400043, is a petitioner. Petitioners versus Mumbai Housing Area Development Authority, a body corporate established under Section 3 of the Maharashtra Housing and Area Development Act 1976, having its address at Grihanirman Bhavan, Kala Nagar, Bandra East, Mumbai 400051; the Vice President and Chief Executive Officer of Mumbai Housing Area Development Authority, having his office at Grihanirman Bhavan, Kala Nagar, Bandra East, Mumbai 400051; the Building Permission Cell, Greater Mumbai, Mumbai Housing Area Development Authority, through the Executive Engineer, having its office at Grihanirman Bhavan, Kala Nagar, Bandra East, Mumbai 400051; the State of Maharashtra, through the Secretary, Urban Development Department, Mantralaya, Mumbai 400032. Respondents., Kamala Hub Juhu Office Premises Co-operative Society Limited, a society registered under the Maharashtra Co-operative Societies Act 1960, bearing registration No (not provided), having its address at Kamla Hub, JVPD Scheme, Vile Parle West, Mumbai 400049, is a petitioner. Maharashtra Housing and Area Development Authority, a statutory authority duly constituted under the Maharashtra Housing and Area Development Act 1976, having its office at Grihanirman Bhavan, Mumbai 400051, is a respondent. The Chief Officer, Maharashtra Housing and Area Development Authority, an authority duly constituted under the Maharashtra Housing and Area Development Act 1976, having its office at Grihanirman Bhavan, Mumbai 400051, is a respondent. Building Permission Cell, Greater Mumbai, through the Executive Engineer, having its office at Grihanirman Bhavan, Mumbai 400051, is a respondent. The Municipal Corporation of Greater Mumbai, a statutory corporation having its office at Mahapalika Marg, Fort, Mumbai 400001, is a respondent. The State of Maharashtra, through the Urban Development Department, having its office at Mantralaya, Mumbai 400032, is a respondent. Kamala Param Constructions Private Limited, a company incorporated under the Companies Act 1956 and now governed under the Companies Act 2013, having its registered office at Plot No 9, Gulmohar Road No 1, JVPD Scheme, Near Juhu Circle, Andheri West, Mumbai 400049 and its corporate office at Terminal 9, Nehru Road, Vile Parle East, Mumbai 400099, is a respondent., Asshna Developers Westin, a sole proprietorship concern of Mr Amit C Punjabi, having its registered office at Sky Crest, 1st Floor, Next to ICICI Bank, Road No 03, Liberty Garden, Malad West, Mumbai 400064, is a petitioner. Petitioners versus Maharashtra Housing and Area Development Authority, a statutory authority duly constituted under the Maharashtra Housing and Area Development Act 1976, having its office at Grihanirman Bhavan, Bandra East, Mumbai 400051; the Chief Officer, Maharashtra Housing and Area Development Authority, having its office at Grihanirman Bhavan, Bandra East, Mumbai 400051; Building Permission Cell, Greater Mumbai, through the Executive Engineer (B P Cell), having its office at Grihanirman Bhavan, Bandra East, Mumbai 400051; the Municipal Corporation of Greater Mumbai, a statutory corporation having its office at Mahapalika Marg, Mumbai 400001; the State of Maharashtra, through its Urban Development Department, having its office at Mantralaya, Mumbai 400032; Ekopa Sahaniwas Co-operative Housing Society Limited, a society registered under the Maharashtra Co-operative Societies Act 1960, bearing Registration No BOM HSG 4652 of 1975, having its registered address at Building No 1, Aram Nagar, Andheri West, Mumbai 400061. Respondents., Laxmi Estate Developers Private Limited, a company incorporated under the Companies Act 2013, having its address at SH-02 C Wing, Building No 150, Kannamwar Nagar, Near Shiv Sena Shakha, Vikhroli East, Mumbai 400083, is a petitioner. Petitioners versus Maharashtra Housing and Area Development Authority, a body corporate established under Section 3 of the Maharashtra Housing and Area Development Act 1976, having its address at Grihanirman Bhavan, Kala Nagar, Bandra East, Mumbai 400051; the Executive Engineer (Building Proposal), Maharashtra Housing and Area Development Authority, an officer of respondent No 1, having his office address at Building Permission Cell, Maharashtra Housing and Area Development Authority, Bandra East, Mumbai 400051; Chembur Pitruchhaya Co-operative Housing Society Limited, a co-operative housing society incorporated under the Maharashtra Co-operative Societies Act 1960, having its address at Building No 10, Subhash Nagar, Chembur West, Mumbai 400071; the State of Maharashtra, through its Chief Secretary, Mantralaya, Mumbai 400032. Respondents., Divisha Developers 2645 Limited Liability Partnership, a limited liability partnership duly registered under the Limited Liability Partnership Act 2008, having its registered address at 2nd Floor, J K Somani Building, British Hotel Lane, Fort, Mumbai 400001 and also at J 101, Nisarg, Opposite Panchsheel Height, Mahavir Nagar, Kandivali West, Mumbai 400067, is a petitioner. Rajendra Kapurchand Shah, of Mumbai, Indian inhabitant, partner of the petitioner, having his office at 2nd Floor, J K Somani Building, British Hotel Lane, Fort, Mumbai 400001 and also at J 101, Nisarg, Opposite Panchsheel Height, Mahavir Nagar, Kandivali West, Mumbai 400067, is a petitioner. Petitioners versus State of Maharashtra, through its Urban Development Department, Mantralaya, Mumbai 400032; Municipal Corporation of Greater Mumbai, through the Municipal Commissioner, having its head office at Mahapalika Bhavan, Mahapalika Marg, Opposite Azad Maidan, Mumbai 400001; Maharashtra Housing and Area Development Authority, having its office at Grihanirman Bhavan, Kalanagar, Bandra East, Mumbai 400051; Ruturaj Vasant Co-operative Housing Society Limited, a society registered under the Maharashtra Co-operative Societies Act 1960, having its address at Building No 22, M H B Colony Nagar, Borivali West, Mumbai 400091. Respondents., Kaustubh Construction Private Limited, a company registered under the Companies Act 1956, having its registered address at 401 4th Floor, Gundecha Solitaire, Magathane, Borivali East, Mumbai 400066, is a petitioner. Charkop Ravi Kiran Co-operative Housing Society Limited, a co-operative housing society incorporated under the Maharashtra Co-operative Societies Act 1960, having its address at C T S No 1C/1/167 of Village Kandivali, Plot No 216, R D P 8, Sector 4, Charkop, Kandivali West, Mumbai 400067, is a petitioner. Petitioners versus State of Maharashtra, through its Urban Development Department, Mantralaya, Cama Road, Hutatma Rajguru Square, Nariman Point, Mumbai 400032; Maharashtra Housing and Area Development Authority, a statutory corporation established under Section 3 of the Maharashtra Housing and Area Development Act 1976; the Executive Engineer, Building Permission Cell, Greater Mumbai, an officer of Respondent No 2, both having their address at Maharashtra Housing and Area Development Authority, Grihanirman Bhavan, Kalanagar, Bandra East, Mumbai 400051. Respondents., Pantnagar Ashirwad Co-operative Housing Society Limited, formed under the provisions of the Maharashtra Co-operative Societies Act 1960, bearing Registration No BOM HSG 7791 82, having its registered office at Building No 106, Sahakar Market, Pant Nagar, Ghatkopar East, Mumbai 400075, is a petitioner. M/s Shreedham Developers, a partnership firm registered under the Indian Partnership Act 1932, having its office at 1205 Universal Majestic, Opposite R B K International School, Chembur, Mumbai 400043, is a petitioner. Petitioners versus Mumbai Housing Area Development Authority, a body corporate established under Section 3 of the Maharashtra Housing and Area Development Act 1976, having its address at Grihanirman Bhavan, Kala Nagar, Bandra East, Mumbai 400051; the Vice President and Chief Executive Officer of Mumbai Housing Area Development Authority, having his address at Grihanirman Bhavan, Kala Nagar, Bandra East, Mumbai 400051; Building Permission Cell, Greater Mumbai, Mumbai Housing Area Development Authority, through the executive officer, having his office address at Grihanirman Bhavan, Kala Nagar, Bandra East, Mumbai 400051; the State of Maharashtra, through its Urban Development Department, Mantralaya, Mumbai 400032. Respondents., Vibrant Homes Limited Liability Partnership, a limited liability partnership incorporated under the Limited Liability Partnership Act 2008, having its registered office at V55, Dr E Moses Road, Worli, Mumbai 400018, is a petitioner. Petitioners versus Municipal Corporation of Greater Mumbai, a body incorporated under the Mumbai Municipal Corporation Act 1888, having its office at Mahapalika Road, Mumbai 400001; the Executive Engineer, Building Proposal (City), F North Ward, Municipal Corporation of Greater Mumbai Office, Near Antop Hill, Wadala, Mumbai; Maharashtra Housing and Area Development Authority, a body incorporated under the Maharashtra Housing and Area Development Act 1976, having its office at Grihanirman Bhavan, Bandra East, Mumbai 400051. Respondents., MIG Bandra Realtors and Builders Private Limited, a company incorporated under the Companies Act 1956, having its registered office at D B House, General A K Vaidya Marg, Goregaon East, Mumbai 400063, is a petitioner. Faizan Pasha, of Mumbai, adult Indian inhabitant, Director of the petitioner, having his office at D B House, General A K Vaidya Marg, Goregaon East, Mumbai 400063, is a petitioner. Petitioners versus State of Maharashtra, through its Urban Development Department, Mantralaya, Mumbai 400032; Maharashtra Housing and Area Development Authority, an authority established under the Maharashtra Housing and Area Development Act 1976, having its office at Grihanirman Bhavan, Kala Nagar, Bandra East, Mumbai 400051; the Municipal Corporation of Greater Mumbai, a statutory corporation established under the Mumbai Municipal Corporation Act 1888, having its office at Annex Building, Mahapalika Marg, Mumbai 400001. Respondents., Rohan Developer Private Limited, a company incorporated under the Companies Act 1956, having its registered office at Gordhan Building No II, 2nd Floor, 12/14 Dr Parekh Street, Prathana Samaj, Mumbai 400004, is a petitioner. Indo Global Soft Solutions and Technologies Private Limited, a company incorporated under the Companies Act 1956, having its registered office at Plot No 41 Rajiv Gandhi Infotech Park, Phase 1, Near B M School, Hinjewadi, Pune Maharashtra 411052, is a petitioner. Petitioners versus State of Maharashtra, Urban Development Department, through the office of the Government Pleader, Bombay High Court, Public Works Department Building, Fort, Mumbai 400001; Municipal Corporation of Greater Mumbai, Legal Department, Mahapalika Marg, M G Road, Fort, Mumbai 400001; Executive Engineer, Building Proposals, City, F North Ward, Municipal Corporation of Greater Mumbai, Plot No 96, Bhau Daji Road, King Circle, Matunga East, Mumbai 400019; Office of Assistant Commissioner (Estate), Municipal Corporation of Greater Mumbai, Municipal Building (Extension), 4th Floor, Fort, Mumbai 400001. Respondents., Kabra and Associates, a partnership firm duly registered under the Indian Partnership Act 1932, having its registered office at 1001 10th Floor, Kamla Hub, Andheri West, Mumbai 400049, is a petitioner. Gautam Kabra, adult Indian inhabitant, having his address at 1001 10th Floor, Scheme, Andheri West, Mumbai 400049, is a petitioner. Petitioners versus Maharashtra Housing and Area Development Authority, a statutory authority constituted under the Maharashtra Housing and Area Development Act 1976, having its office at Grihanirman Bhavan, Bandra East, Mumbai 400051; the Vice President, Maharashtra Housing and Area Development Authority, having its office at Grihanirman Bhavan, Bandra East, Mumbai 400051; Building Permission Cell, Greater Mumbai, Maharashtra Housing and Area Development Authority, through the Executive Engineer, having its office at Grihanirman Bhavan, Kala Nagar, Bandra East, Mumbai 400051; the Principal Secretary, Housing Department, Government of Maharashtra, Mantralaya, Mumbai; Municipal Corporation of Greater Mumbai, having its office at Mahapalika Bhavan, Mahapalika Marg, Fort, Mumbai 400001; Assistant Registrar of Co-operative Societies (MHADA), Bandra East, Mumbai 400051; Dindoshi Darshan Co-operative Housing Society Limited, a society registered under the Maharashtra Co-operative Societies Act 1960, having its registered office at Building No 1, Shivdham Complex, Opposite Dindoshi Fire Station, Dindoshi, Malad East, Mumbai 400097; the State of Maharashtra, through its Urban Development Department, Mantralaya, Mumbai. Respondents.
id_1351	3	A Body corporate established under Section 3 of the Maharashtra Housing and Area Development Act, 1976, having its address at Grihanirman Bhavan, Kala Nagar, Bandra (East), Mumbai 400051, an officer of Respondent No.1 having his office address at Grihanirman Bhavan, Kala Nagar, Bandra (East), Mumbai 400051, a co‑operative housing society registered under the Maharashtra Cooperative Societies Act, 1960 having its address at Building No.3, Oshiwara, New Link Road, Jogeshwari (West), Mumbai, a company incorporated under the provisions of the Companies Act, 1956 and validly existing under the provisions of the Companies Act, 2013 having its registered office at 10th Floor, Dev Plaza, S.V. Road, Andheri (West), Mumbai 400058, Vinod Mohanlal Jain, age about 46 years, an adult Indian inhabitant, having his address at 2, Jai Bhagwan, 87 Walkeshwar Road, Mumbai 400006., Petitioner versus State of Maharashtra through its Urban Development Department, Government of Maharashtra through the office of Government Pleader, Bombay High Court, PWD Building, Fort, Mumbai 400032; Municipal Corporation of Greater Mumbai incorporated under the Municipal Corporation Act, 1888 having its office at Mahapalika Marg, C.S.T., Mumbai 400001; Ex Engineer Building, Proposal (City‑I), New Municipal Building No.355B, Bhagwan Valmiki Chowk, Vidyalankar Marg, opposite Hanuman Mandir, Salt Pan Road, Antop Hill, Wadala (East), Mumbai 400037; Respondent a company incorporated under the Companies Act, 2013 having its office at 702, Natraj, M.V. Road Junction, Western Express Highway, Andheri (East), Mumbai; a Body corporate established under Section 3 of the Maharashtra Housing and Area Development Act, 1976, having its address at Grihanirman Bhavan, Kala Nagar, Bandra (East), Mumbai 400051; Samudra Darshan Co‑operative Housing Society Limited, a co‑operative housing society registered under the Maharashtra Cooperative Societies Act, 1960 having its registered address at Building Nos.9, 12, 13, 14, D.N. Nagar, Andheri (West), Mumbai 400053., Petitioner versus The Municipal Corporation of Greater Mumbai, a statutory corporation constituted under the provisions of the Mumbai Municipal Corporation Act, 1888 having its address at Mahapalika Marg, Mumbai 400001; The Municipal Commissioner having his office at 1st floor, Municipal Head Office Extension Building, Mahapalika Marg, Mumbai 400001; Maharashtra Housing and Area Development Authority, a body corporate established under Section 3 of the Maharashtra Housing and Area Development Act, 1976, having its address at Grihanirman Bhavan, Kala Nagar, Bandra (East), Mumbai 400051; Samudra Darshan Gruhpravesh Limited Liability Partnership, a limited liability partnership constituted under the Limited Liability Partnership Act, 2008 having its address at B‑106, Concord, 2nd Lane, Lokhandwala Complex, Andheri (West), Mumbai 400053; The State of Maharashtra through its Urban Development Department, Mantralaya, Mumbai., Petitioner versus Samata Nagar Co‑operative Housing Societies Union Limited, a federal society registered under the Maharashtra Cooperative Societies Act, 1960 having its office at 25/486, Vishwadarshan, Samta Nagar, Kandivali, Mumbai 400101; S.D. Corporation Private Limited, a company incorporated under the Companies Act, 1956 having its registered office at 70, Nagindas Master Road, Fort, Mumbai 400023; Mr. Shrikant Chavan, C/o SP Centre, 41/44, Minoo Desai Marg, Colaba, Mumbai 400005., Petitioner versus The Municipal Corporation of Greater Mumbai having its office at Mahapalika Marg, Mumbai; The Executive Engineer (Building) Proposal, Municipal Corporation of Greater Mumbai, G Ward, Kandivali, Mumbai; Maharashtra Housing and Area Development Authority, an authority established and constituted under the Maharashtra Housing and Area Development Authority Act, 1976, having its address at Griha Nirman, Mumbai 400051; State of Maharashtra through the Government Pleader, Bombay High Court, Mumbai., Petitioner versus M/s. Shree Mahavir Estate Ameya, a partnership firm duly registered under the Indian Partnership Act, 1932, having its principal place of business at Podium, Office No.2, Aditya A Wing, Gulmohar Cross Road No.7, Juhu Vile Parle Development Scheme, Mumbai 400049; Union of India through the Secretary, Ministry of Civil Aviation, Corporate Headquarters, Rajiv Gandhi Bhavan, Safdarjung Airport, Block‑B, New Delhi 110003 and also at Aayakar Bhavan, 2nd floor, Maharshi Karve Road, New Marine Lines, Mumbai 400020; Airports Authority of India, Western Region, Headquarters, having its office at Opposite Parsiwada, Sahar Road, Vile Parle East, Mumbai 400099; General Manager (A.T.M), Western Region, Airports Authority of India, having his office at Opposite Parsiwada, Sahar Road, Vile Parle East, Mumbai; Maharashtra Housing and Area Development Authority, a body corporate established under Section 3 of the Maharashtra Housing and Area Development Act, 1976, having its address at Grihanirman Bhavan, Kala Nagar, Bandra (East), Mumbai 400051; Ameya Co‑operative Housing Society Limited, a co‑operative housing society incorporated under the Maharashtra Cooperative Societies Act, 1960 having its address at Building No.1, D.N. Nagar, Andheri (West), Mumbai 400053., Petitioner versus a company registered under the Companies Act, 1956 and deemed to have been registered under the Companies Act, 2013 having its address at 14/A, Paper Box Estate, Mahakali Caves Road, Andheri (East), Mumbai 400093; a Body corporate established under Section 3 of the Maharashtra Housing and Area Development Act, 1976, having its address at Grihanirman Bhavan, Kala Nagar, Bandra (East), Mumbai 400051; an officer of Respondent No.1 having his office address at Building Permission Cell, Greater Mumbai, MHADA, Bandra (East), Mumbai; a co‑operative housing society incorporated under the Maharashtra Cooperative Societies Act, 1960 having its address at Building No.10, Maharashtra Housing Board Colony, Mumbai 400058; Urbania Realty Limited Liability Partnership having its registered office at 201 Plot No.15, Megor Arcade, Ghatkopar (East), Mumbai 400077., Petitioner versus State of Maharashtra, Urban Development Department, through the office of the Government Pleader, Bombay High Court, PWD Building, Fort, Mumbai 400001; Municipal Corporation of Greater Mumbai, Legal Department, Mahapalika Marg, M.G. Road, Fort, Mumbai 400001; Ex Engineer, Building Proposals (City), G/North Ward, Municipal Corporation of Greater Mumbai, 11 JK Sawant Marg, Kasaravadi Dadar, Mumbai 400028., Petitioner versus Vaidehi Akash Realtors Private Limited, a company registered under the Companies Act, 1956 having its office at 101, D.N. Nagar, Saptarshi C.H.S. Ltd., Barfiwala College Lane, D.N. Nagar, Andheri (West), Mumbai 400053., Petitioner versus State of Maharashtra, through Senior Inspector of Police, Station, D.N. Nagar, Andheri (West), Mumbai 400053; Municipal Corporation for Greater Bombay, having its office at Mahapalika Bhavan, Mahapalika Marg, Fort, Bombay 400001; IV (Ward) K/West (Designated Officer), K/West, 6th Floor Paliram Path, Mumbai 400058; Maharashtra Housing and Area Development Authority, having its office at MHADA Building, Kala Nagar, Bandra (East), Mumbai 400051., Petitioner versus Drushti Realtors Private Limited; C.A. to Pantnagar Trishul CHS Limited, G‑1 Terminal‑9 besides Vile Parle Police Station/Airport, Nehru Nagar, Vile Parle (East), Mumbai 400057., Petitioner versus State of Maharashtra through its Government Pleader, P.W.D. Building, High Court, Mumbai 400032; Maharashtra Housing and Area Development Authority, Grihanirman Bhavan, Kala Nagar, Bandra (East), Mumbai 400051; The Executive Engineer/B.P. (Cell) ES Kurla Division, MHADA Mumbai Board, 2nd Floor, Room No.341, Grihanirman Bhavan, Kala Nagar, Bandra (East), Mumbai 400051; a cooperative housing society registered under the Maharashtra Cooperative Societies Act, 1960 having its address at MHADA Adarsh Nagar, Worli, Mumbai 400030; a Limited Liability Partnership incorporated under the Limited Liability Partnership Act, 2008 and having its office at 2nd Floor, Manu Mansion, 16, Shahid Bhagat Singh Marg, Fort, Mumbai 400001; Age: Adult, Occupation: Business Partner of Techno Freshworld LLP and having its office at 2nd Floor, Manu Mansion, 16, Shahid Bhagat Singh Marg, Fort, Mumbai 400001., Petitioner versus the Principal Secretary, Urban Development Department, Mantralaya, Mumbai 400032; Maharashtra Housing and Area Development Authority, a statutory authority constituted under the Maharashtra Housing and Area Development Authority Act, 1976, having its office at Griha Nirman Bhavan, Kala Nagar, Bandra (East), Mumbai 400051; Building Permission Cell, Greater Mumbai, MHADA, having office at Griha Nirman Bhavan, Kala Nagar, Bandra (East), Mumbai 400051; Respondent M/s. VS Developers, a partnership firm duly registered under the Indian Partnership Act, 1932, having its office at A/503, Sterling Court, Maheshwari Nagar, Kondivita Road, Andheri (East), Mumbai; Mr. Sanjay Narayandas Rathi, adult, Indian inhabitant, having address at A/503, Sterling Court, Maheshwari Nagar, Kondivita Road, Andheri (East), Mumbai 400093., Petitioner versus Maharashtra Housing and Area Development Authority, a statutory authority constituted under the Maharashtra Housing and Area Development Authority Act, 1976, having its office at Griha Nirman Bhavan, Bandra (East), Mumbai 400051; Vice President, Maharashtra Housing and Area Development Authority, having its office at Griha Nirman Bhavan, Bandra (East), Mumbai 400051; Building Permission Cell, Greater Mumbai, Maharashtra Housing and Area Development Authority, through the Executive Engineer, having its office at Griha Nirman Bhavan, Kala Nagar, Bandra (East), Mumbai 400051; The Principal Secretary, Housing Department, Government of Maharashtra, Mantralaya, Mumbai; Municipal Corporation of Greater Mumbai, having its office at Mahapalika Bhavan, Mahapalika Marg, Fort, Mumbai 400001; Assistant Registrar of Co‑operative Societies (MHADA), Bandra East, Mumbai 400051; Mr. Rajkumar Shankarrao Bhise; Mr. Kishore Shankarrao Bhise; Mr. Kashinath Bhadu Redkar; Mr. Prashant Shashikant Khadpe; Nos. 7 to 10, all being adults, Indian inhabitants, having their address at Units 1, 2 and 3, Building No.1/1 2 3, Kannamwar Nagar 1, (MHADA), Vikhroli (East), Mumbai 400083; State of Maharashtra through its Urban Development Department, Mantralaya, Mumbai., Counsel for the petitioners: Dr. Milind Sathe, Senior Advocate, together with Mr. Bhushan Deshmukh, Mrs. Jasmine Kachalia, Mr. Deepu Jojo and Mr. Aryan Srivastava, by Messrs. Wadia Ghandy & Co.; Dr. Milind Sathe, Senior Advocate, together with Mr. Saket Mone, Mr. Subit Charkraborti, Mr. Devansh Shah, Mr. Abhay Jariwala, by Messrs. Vidhii Partners; Mr. Saket Mone together with Mr. Subit Chakrabarti, Mr. Devansh Shah and Mr. Abhay Jariwala, by Messrs. Vidhii Partners; Mr. Rohaan Cama together with Mr. Pheroze Mehta, Mrs. Jasmine Kachalia, Mr. Deepu Jojo and Mr. Aryan Srivastava, Mr. Suneet Tyagi, Mr. Sandeep Patil, Ms. Pooja Singhvi, by Messrs. Wadia Ghandy & Co.; Mr. M. M. Vashi, Senior Advocate, by Ms. Ria Jain; Mrs. Jasmine Kachalia together with Mr. Aryan Srivastava and Mr. Deepu Jojo, by Messrs. Wadia Ghandy & Co.; Ms. Ria Jain, for the petitioners in WPL/18290/2022; Mr. Mukesh M. Vashi, Senior Advocate together with Mr. Jayneel Vashi, by Messrs. M.P. Vashi & Associates; Mr. Rahul Hingmire together with Mr. Chirag Bhavsar together with Ms. Aarti Sonawane, by Messrs. VIS Legis Law Practice; Mr. Aditya Shiralkar together with Mr. Vijay Poojari, by Messrs. Shiralkar & Co.; Mr. Sanjiv Sawant together with Mr. Heramb Kadam and Mr. Pankaj Kode; Mr. Pravin Samdani, Senior Advocate together with Mr. Amogh Singh, Mr. Nivit Srivastava and Mr. Viraj Maniar together with Ms. Sneha Patil, Mr. Saurabh Kshirsagar and Ms. Nidhi Asiwal, by Maniar Srivastava Associates; Mr. Santosh Pathak together with Ms. Archana Karmokar, Mr. Nimish Lotilkar and Mr. Kailash Pathak, by Law Origin; Mr. Arun Panickar, for the petitioners in WP/2767/2022, WP/1360/2021, WP/3018/2021 and WPL/8279/2022 and Respondent No.4 in WPL/704/2022, WP/20290/2021 and Respondent No.3; Mr. Divesh Chamboowala, by Mr. Pradip Kadam, for the petitioners in WPL/16598/2022 and WPL/22696/2022; Mr. Dipen Furia, by Shah and Furia Associates; Ms. Tulsi Shah together with Ms. Ayesha Khatri, by Mr. Akash Shah; Mr. Sanjay Kadam together with Mr. Sanjeel Kadam, Ms. Sayalee Rajpurkar, Nitisha Lad, by Kadam & Company; Ms. Huda Diamondwala, by Diamondwala and Co.; Mr. Saket Mone together with Mr. Subit Chakrabarti, Mr. Devansh Shah, Mr. Abhay Jariwala, by Vidhii Partners; Mr. Mayur Khandeparkar together with Mr. Anand Pai, Mr. Ativ Patel, Ms. Viloma Shah, Mr. Darshit Dave, Mr. Harshad Vyas, by A V P Partners; Ms. Rujuta Patil, by Negandhi Shah & Himayatullah; Mr. Makarand Kale, by Mr. Govinda Gupta; Mr. Girish Godbole together with Mr. Bhushan Deshmukh and Ms. Monisha Mane Bhangale and Ms. Nikita Menon, by Parinam Law Associates; Mr. Tejesh Dande together with Mr. Bharat Gadhavi, Mr. Vishal Navale, Mr. Aniket Aghade, Mr. Chinmay Deshpande, Ms. Trushna Shah and Mr. Vikrant Khare and Mr. Krupanshu Nandu, by Tejesh Dande & Associates; Mr. Bhushan Deshmukh and Ms. Mamta Harwani, Ms. Miloni Gala, by Mr. Dhiren Shah; Mr. Dhiren H. Shah together with Ms. Miloni Gala, Ms. Nikita Ghungarde, by Mr. Dhiren H. Shah; Ms. Miloni Gala together with Ms. Mamta Harwani, by Mr. Dhiren H. Shah; Mr. Ashwin Sawlani together with Mr. Viraj Jadhav, by Ms. Reena Salunke; Mr. Ashwin Sawlani together with Mr. Viraj Jadhav, by Mr. Chinmay Acharya; Mr. Chirag H. Mody together with Mr. Sridhar K. Chari; Mr. Hamid Ahmad together with Ms. Asha Nair, by M.Z. and Associates; Mr. Nilesh Pandey together with Mr. Shekhar Pal, Ms. Priyanka Dubey, by Equa Juris; Mr. K.D. Jha, for the petitioner in WP/2988/2022; Mr. Aspi Chinoy, Senior Advocate together with Mr. Joel Carlos, by Ms. Oorja Dhond and Mr. Sunil K. Sonawane, for the respondents, Bombay Municipal Corporation; Mr. Ashutosh Kumbhakoni, Advocate General together with Mr. P.G. Lad and Mr. Akshay Shinde, Ms. Sayli Apte, Ms. Shreya Shah for the respondents – MHADA; Mr. Ashutosh Kumbhakoni, Advocate General together with Mr. Akshay Shinde for Respondent No.3 in WP/2038/2016 and WPL/8731/2022, WPL/17501/2022, WP/8142/2022, WP/8722/2022 and WP/8731/2022; Mr. Akshay Shinde for Respondent Nos.1 and 2; Mr. N.V. Walawalkar, Senior Advocate together with Ms. Oorja Dhond for the respondent, M.C.G.M.; Mr. Joaquim Reis, Senior Advocate together with Bernard Reis, Mr. Joel Carlos, Ms. Oorja Dhond and Mr. Abhijeet Joshi, by Mr. S. K. Sonawane, for the respondent in WPL/17580/2022 – M.C.G.M.; Mr. Ashutosh Kumbhakoni, Advocate General together with Mr. Akshay Shinde, Ms. Sneha Bhange, Ms. P. H. Kantharia, Government Pleader, together with Mr. Abhay L. Patki, Additional Government Pleader and Mr. Milind More, Additional Government Pleader, Mr. Laxmikant Satelkar, AGP, Ms. Jyoti Chavan, AGP, State, Ms. Uma Palsuledesai, AGP, State, Mr. Hemant Haryan, AGP, State, Mr. Himanshu Takke, AGP, Mr. Sukanta Karmakar, AGP, Mr. M.A. Saiyed, AGP, State and Mr. Dushyant Kumar, AGP, Mr. Manish Upadhye, AGP, State for the respondents; Mr. Y. R. Mishra for the respondents Union of India; Mr. T.D. Deshmukh together with Mr. H.D. Chavan, in WP/1360/2021, 17501/2022, WPL/18252/2022 and WP/3018/2021 for MHADA; Mr. Kamlesh Ghumre together with Ms. Sonali Jadhav Krishna Eppar, for Respondent No.2 in WP/1816/2016 MHADA; Mr. Jagdish G. Aradwad (Reddy) for Respondent Nos.2 and 3 – SRA in WP/1937/2016., Order: Learned counsel for the respondents waived service. The order is made returnable forthwith. By consent of the parties, this batch of petitions was heard together and is being disposed of by a common order. The parties agreed that Writ Petition No.1334 of 2019, Writ Petition No.8126 of 2022, Writ Petition (L) No.704 of 2022 and Writ Petition (L) No.9673 of 2022 would be considered as the lead matters, as identical questions of law have arisen in all these petitions. Learned counsel for the parties in these writ petitions addressed the Court on behalf of their respective clients. In the remaining matters, the petitioners adopted the submissions made by the learned counsel for the petitioners in the lead matters and the respondents adopted the submissions advanced by the learned counsel for the respondents in the lead matters., Facts in Writ Petition No.1334 of 2019: By this writ petition filed under Article 226 of the Constitution of India, the petitioners pray for a declaration that they are exempted from levy, imposition, demand and recovery of development charges by the Municipal Corporation, Greater Mumbai under Section 124F of the Maharashtra Regional Town Planning Act, 1966 (the MRTP Act) in respect of the development or redevelopment of the property being developed by the petitioners and that any such levy, imposition, demand and recovery is illegal, contrary to law, without jurisdiction and without authority of law. The petitioners also pray for a writ of certiorari for quashing and setting aside the levy, imposition, demand and recovery of development charges by the Municipal Corporation pertaining to the writ property including the impugned development charges of Rs.4,22,94,300 demanded in the impugned demand notices issued by the Corporation. The petitioners further pray for a writ of mandamus directing the Municipal Corporation to issue fresh demand notices in respect of the development or redevelopment of the writ property without levy, imposition, demand and recovery of development charges under Section 124A of the MRTP Act and seek refund of Rs.4,22,94,300 paid by the petitioners as development charges under protest till the date of realization., The petitioners are developing land measuring 8,200.87 square metres bearing CTS No.441 (part), 442 (part), 452 (part), 453 (part), 455 (part) and 456 (part) of Parel Sewree Division, D.G. Mahajani Road and Rafi Ahmed Kidwai Marg, F/S Ward, Mumbai 400015 (hereinafter referred to as the writ land). It is the case of the petitioners that the respondent is the owner of the said writ land. Prior to 1940, the respondent developed the portion of the land constructing ten chawls and tenements (hereinafter referred to as the said structures). The members of the said chawls formed the petitioner No.1 society., The petitioners state that the writ property was in a dilapidated condition and required urgent repairs and reconstruction. In 2008, the petitioner No.1 society granted redevelopment rights of the said property to the petitioner No.2, Coventry Properties Private Limited, on the terms and conditions set out in the redevelopment agreement. The petitioner No.2 proposed to develop the property under Regulation 33(7) of the Development Control Regulation, 1991., On 8 December 2016, the respondent issued an inventory list as Annexure‑II of the tenants and chawls/members of the petitioner No.1 society appearing on the rent receipts, which, according to the petitioners and the respondent, are eligible for the benefits under redevelopment of the property. The petitioners had made an application for issuance of such inventory list to the respondent corporation. On 1 March 2018, the respondent corporation issued a Letter of Intent sanctioning development or redevelopment of the writ property under Regulation 33(7) of the Development Control Regulation, 1991. According to the petitioners, they were required to hand over 2,390.84 square metres in the form of flats to the respondent corporation under the Letter of Intent and to pay Rs.134,65,24,704 as a condition for granting the Letter of Intent to the Municipal Corporation., The respondent agreed to lease the writ land to the petitioner No.1 for a period of 30 years with an option to renew at the discretion of the Municipal Corporation. The Letter of Intent recorded that the land and the structures vested with and were owned by the respondent corporation. It provided that the respondent corporation would issue a No Objection Certificate for commencement of construction and, in the event of breach, the respondent would have the power to cancel the Letter of Intent and all permissions granted with respect to the project., The petitioners state that the property card for the writ land reflects the respondent as owner. The petitioner No.2 is constructing a composite building for rehabilitation component with three wings, a free‑sale component with three wings and an area for the respondent with one wing (Building No.1 on Plot No. A). The petitioner No.2 is also constructing Building No.2 comprising a free‑sale component on Plot No. B. On 19 June 2018, the respondent corporation issued an IOD to undertake development of Building No.1 on Plot No. A. On 13 September 2018 and 12 November 2018, the respondent issued amended approvals for development of Plot No. B. On 20 June 2018, the respondent issued another IOD for development of Building No.2 on Plot No. B. On 23 January 2019, the respondent issued several demand letters levying development charges of Rs.7,94,09,350. The petitioners filed the writ petition on 27 February 2019 for various reliefs. On 5 April 2019, this Court granted an ad‑interim relief on the condition that the petitioners deposit 50 % of the development charges with the Prothonotary and Senior Master of this Court within two weeks of the order and furnish a bank guarantee for the remaining 50 %., According to joint measurements carried out by the petitioner No.2 and the District Superintendent of Land Records, the actual area of the land is 8,354 square metres. The petitioner No.2 applied to the respondent for an amended Letter of Intent. On 17 February 2020, the respondent issued a revised Letter of Intent reconfirming that the land is owned by the respondent and directing the petitioner to hand over 2,441.76 square metres in the form of flats to the respondent. The respondent would receive Rs.139,02,12,693 as capitalised value as a condition for grant of the revised Letter of Intent. The revised Letter of Intent provides that only upon compliance of the conditions stated, the respondent will issue a No Objection Certificate for commencement of construction and, in the event of breach, the respondent shall have the power to cancel the revised Letter of Intent and all permissions., On 9 April 2020, the petitioner No.2 applied for amendment of plans. On 25 April 2020, the respondent approved the amended plans. On 18 June 2020, the respondent issued a fresh demand notice levying development charges of Rs.3,98,66,300. The petitioners thereafter filed interim application No.2069 of 2021 in this writ petition. On 7 August 2020, during the pendency of the interim application, the petitioners paid development charges of Rs.3,98,66,300 under protest. On 11 August 2020, the interim application was disposed of. On 18 December 2020, the respondent raised a demand notice levying development charges of Rs.24,28,000. The petitioners paid the said amount on 21 December 2020 under protest., In September 2021, the petitioners filed interim application No.2138 of 2021 seeking amendment of the writ petition to bring subsequent events on record, including impugning the fresh demand notices and seeking a prayer for refund of monies paid under protest. On 30 June 2022, this Court allowed the interim application and permitted the amendment. The amended writ petition was admitted., Submissions of Dr. Sathe, learned senior counsel for the petitioners in Writ Petition 1334 of 2019: Dr. Sathe invited the Court’s attention to various documents annexed to the writ petition and the affidavit‑in‑reply filed by the respondents. He submitted that levy of development charge for the subject property is dehors the mandate of Section 124A read with Section 124F of the MRTP Act and thus without any authority of law. He submitted that Section 124A of the MRTP Act, being the charging section, provides that development charges shall be levied by the Planning Authority on institution of use or change of use or development of any land or building for which permission is required under the MRTP Act in terms of Sections 43, 44 and 45 thereof., He submitted that Section 124F of the MRTP Act clearly provides that for applicability of the exemption provision, there should be institution of use or change of use or development of any land or building which is (i) vested in or (ii) under the control of or (iii) in the possession of the Central Government or State Government or Local Authority. He placed reliance on the definition of local authority under Section 2(15) of the MRTP Act and submitted that it is admitted by the respondents that the land on which development is undertaken belongs to the Municipal Corporation, which is specifically mentioned in the definition of local authority. The land is being developed by the petitioner No.2 as the developer under Regulation 33(7) of the Development Control Regulations for Greater Mumbai, 1991., He submitted that the petitioners are developing lands belonging to the Municipal Corporation and therefore the development undertaken by the petitioners is exempted from payment of development charges under Section 124F of the MRTP Act. The amounts already paid by the petitioners under protest towards development charges should be directed to be refunded to the petitioners. He submitted that all conditions for granting exemption for payment of development charges prescribed under Section 124F are satisfied in the facts of this case., He submitted that the land being developed by the petitioners is vested in the Municipal Corporation. Redevelopment of the land and the structures is being undertaken by the petitioners under Letters of Intent issued by the Municipal Corporation as planning authority and therefore the redevelopment squarely falls within the parameters of the exempted entities under Section 124F of the MRTP Act. He submitted that the word “or” appearing in Section 124F between the following words is clearly disjunctive and not conjunctive: (a) “or” between development of land and building; (b) “or” between vested, under control and possession; (c) “or” between Central Government, State Government and Local Authority., He relied upon the definition of development as defined under Section 2(7) of the MRTP Act and submitted that the land is owned by the Municipal Corporation and therefore exemption from payment of development charges under Section 124F would squarely apply. He placed reliance on various clauses of the Letters of Intent as well as the revised Letter of Intent. He submitted that the petitioners are rehabilitating the existing tenants.
id_1351	4	He also relied upon the definition of Development Authority under Section 2(8) and Local Authority under Section 2(15) of the said Act. He also relied upon the definition of the Authority constituted under the Maharashtra Housing and Area Development Act, 1976 under subsection 15(c)(ii) of Section 2 of the Maharashtra Regional Town Planning Act and submitted that under the provisions of the Maharashtra Housing and Area Development Authority, Municipal Corporation is designated as planning authority by the State Government. He also relied upon the definitions of occupier under Section 2(17), owner under Section 2(18) and planning authority under Section 2(19) of the Maharashtra Regional Town Planning Act., Learned senior counsel placed reliance on Sections 43 to 45 of the Maharashtra Regional Town Planning Act. He tendered the Statement of Objects and Reasons for inserting Section 124A and 124F of the Maharashtra Regional Town Planning Act. It is submitted by the learned senior counsel that development charge is a tax and cannot be levied, assessed and recovered without authority of law under Section 124A of the Maharashtra Regional Town Planning Act. He submitted that the development charge is in the nature of compulsory exaction of money and therefore a tax. He relied upon Article 265 of the Constitution of India and submitted that no tax shall be levied or collected except by authority of law. He submitted that the said provision under Section 124F(1) of the Maharashtra Regional Town Planning Act is clear and unambiguous and must be given effect to by its literal meaning. In construing penal statute and taxation statute the Bombay High Court has to apply strict rule of interpretation. No extraneous condition, factors ought to be and/or can be read into the express language of Section 124F(1) of the Maharashtra Regional Town Planning Act., It is submitted that as long as there is no ambiguity in the statutory language, resort to any interpretative process to unfold the legislative intent becomes impermissible. The need for interpretation arises when the words used in the statute are, on their terms, ambivalent and do not manifest the intent of the legislature. In interpretation of a fiscal statute, no words ought to be added and only the language used ought to be considered so as to ascertain the proper meaning and intent of the legislature., Learned senior counsel submitted that it is axiomatic that taxation statute has to be interpreted strictly because the State cannot at its whims and fancies burden the citizen without authority of law. When the competent legislature mandates taxing certain persons or certain objects in certain circumstances, it cannot be expanded or interpreted to include those which were not intended by the legislature., It is submitted that in the matter of imposition of tax, the acquiescence, undertaking or waiver cannot be relied upon by the State if tax otherwise is not legally payable. He submitted that even when the assessee has furnished an undertaking to pay the tax, in the absence of legal authority, tax cannot be justified. In the matters of taxation, there is no equity about the person being taxed. There is no presumption as to tax, nothing is to be read in and nothing is to be implied., It is submitted that Sections 124A to 124L introduced in the Maharashtra Regional Town Planning Act by Maharashtra Act 16 of 1992 were introduced to provide a legal authority for levy of development fee or development charge. The Statement of Objects and Reasons specifically do not contain any provision for levy and collection of development charge. It was thus decided to suitably amend the Maharashtra Regional Town Planning Act to provide for levy, assessment and recovery of development charge on institution of use or change of use of any land or building or development of any land or building for which a permission is required under the said Act. He submitted that in the absence of express provision in the statute, the delegated authority cannot impose the tax as fees., Learned senior counsel invited our attention to the Second Schedule under Section 124B of the Maharashtra Regional Town Planning Act and submitted that rates of development charges are prescribed under clause (a) to (c) of the said Schedule. He submitted that the scheme prepared by the Corporation by way of a circular for levying parking charges was challenged before the Bombay High Court. He submitted that this Court in the case of Municipal Corporation of Greater Mumbai versus Noshir Shapurji Dhabhar, 1991 1 BCR 53 held that when such power to levy fees is not authorized by the legislation, municipal authority cannot claim such taxing power as incidental and consequential to its power to promote public safety and convenience. He submitted that as a result of the said judgment, Section 326-A was inserted in the Mumbai Municipal Corporation Act, 1988 to provide the authority to levy parking charges., Learned senior counsel submitted that in another matter, in the case of Buildarch, Mumbai versus Municipal Corporation of Greater Mumbai, 2010 6 BCR 218, this Court has considered the challenge to the levy and imposition of premium by the Municipal Corporation of Greater Mumbai for the areas covered by staircase rooms, lift rooms, lift wells and passages under Regulation 35(2)(c) of the Development Control Regulations. This Court in the said judgment has held that in the absence of express provision in the Act, the Corporation did not have any power or authority to levy or collect any premium or amounts by whatever name under the Development Control Regulations for grant of special permissions by the Commissioner., It is submitted that in view of the said judgment in the case of Buildarch, Mumbai versus Municipal Corporation of Greater Mumbai, 2010 6 BCR 218, Section 22(m) was amended with effect from 11 January 1967 by Maharashtra Act 29 of 2010 to provide the power of imposition of fees, charges and premium at such rate as may be fixed by the State Government or planning authority from time to time for grant of any additional floor space index or for special permission or for the use of discretionary powers under the said Development Control Regulations., It is submitted that it is open for the State to amend the law when the levy or tax is held to be without authority of law. By the amendment, State can introduce the power to levy tax. He submitted that in view of clear provisions of Section 124F providing for exemption, the imposition, levy and recovery of tax in this case is without authority of law. The respondents cannot recover any amount towards development charges without amending Section 124F., Learned senior counsel invited our attention to the stand taken by the respondents in the affidavit in reply. It is submitted that the language of an exemption clause in any fiscal statute has to be strictly interpreted. It is only in the case of ambiguity that the interpretation which favours the department is to be adopted. He submitted that whether the petitioners develop the subject property or Municipal Corporation of Greater Mumbai develops the subject property or any third party develops the subject property, the exemption under Section 124F is to the land belonging to and vesting in local authority and therefore, who is developing it makes no difference to the plain language of Section 124F., The respondents are seeking to insert the words the lands belonging to Central Government, State Government or any other local authority and shall be exempted from development charge in cases where either the Central Government or State Government or local authority itself is undertaking the activity of institution or change of use or development of the land. In the provisions of Section 124F, the earlier sentence is absent by process of imaginary interpretation of the exemption clause. He submitted that it is enough for a person seeking exemption of development charge that the property belongs to a local authority and it vests in the local authority. The question whether the local authority is actually in possession of or exercises control in respect of such property is not required to be separately met. He submitted that in any event, in this case, the subject property is owned by and is vested with the local authority. The land vests with Municipal Corporation of Greater Mumbai by all connotations and meaning of vesting. It is submitted that if the arguments of the respondents Corporation are accepted, it would amount to rewriting the exemption clause under Section 124F., It is submitted that the petitioners have not accepted the correctness of the demand made by the Corporation for payment of development charge but have paid the amount under protest as recorded in their letter dated 7 August 2020 and 21 December 2020. Though the payments have been made under protest, the petitioners are entitled to challenge the illegal and arbitrary levy of development charges. He submitted that the levy of development charges in this case is in derogation to the express provisions of Section 124F and thus deserves to be set aside., It is submitted that if development would have been carried out by the State Government or Central Government or planning authority, they were not required to apply for permission under Section 44 of the Maharashtra Regional Town Planning Act and in that event, there was no question of paying any development charges. It is submitted that merely because the State Government has not undertaken infrastructure projects, the tax without authority of law does not become payable. The State Government in its wisdom may have taken up infrastructure projects on the basis of its outlay of income from all other sources and the tax that infrastructure projects are being undertaken cannot be an aid for interpreting the plain language of the statutory provision., It is submitted that the only way to read two sub‑sections of Section 124F is that Section 124F(i) is an absolute exemption to a particular category i.e. land belonging to State Government, Central Government or local authority. The second category of exemption under Section 124F(ii) is to be separately provided for by the State Government by a notification. Section 124F(ii) has no connection with Section 124F(i)., In so far as the issue of alternative remedy raised in the affidavit in reply is concerned, it is submitted by the learned senior counsel that the objection now raised is too late. Writ petition issues have been admitted way back in the year 2016 and therefore, assuming that if an alternative remedy is available, the petitioners ought not to be derogated to the alternative remedy. He submitted that considering the questions raised in the present batch of petitions, the alternative remedy is not an efficacious remedy in this case. It is submitted that the impugned action on the part of the respondents in this case is ultra vires, illegal and contrary to the plain language of the statute and thus the Bombay High Court has an ample power to entertain this writ petition., Learned senior counsel for the petitioners also placed reliance on the provisions of the Maharashtra Housing and Area Development (Disposal of Land) Rules, 1981, the Maharashtra Housing and Area Development (Disposal of Land) Regulations, 1982, Regulation No. 21 under the Maharashtra Housing and Area Development (Estate Managements, Sale, Transfer and Exchange of Tenements) Regulations, 1981 and also relied upon the definition of local authority under Section 2(26) of the Maharashtra General Clauses Act, 1904 and the definition of local authority under Section 2(31) of the General Clauses Act, 1897 in support of his submissions., Learned senior counsel for the petitioners placed reliance on the following judgments in support of the aforesaid submissions: Hyderabad Asbestos Cement Product versus Union of India, 2000 (1) SCC 426 (paragraph 8); Achal Industries versus State of Karnataka, 2019 SCC Online SC 428 (paragraph 11); Orissa Warehousing Corporation versus CIT, (1999) 4 SCC 197 (paragraphs 38 and 40); Vodafone International Holding versus Union of India, (2012) 6 SCC 613 (paragraphs 400 to 403); Commissioner of Customs versus Dilip Kumar & Co., (2019) 9 SCC 1 (paragraphs 24, 53 to 55 and 64 to 65); D.M. Haridwar versus Harish Malhotra, (2015) 11 SCC 513 (paragraphs 10 and 14); Gursahai Saigal versus CIT, AIR 1963 SC 1062 (paragraph 8); Ahmedabad Urban Development Authority versus Sharadkumar Jayantikumar Pasawala, (1992) 3 SCC 385 (paragraph 7); Municipal Corporation of Greater Mumbai versus Noshir Shapurji Dhabhar, 1991 (1) BCR 53 (paragraph 26); Buildarch, Mumbai versus Municipal Corporation of Greater Mumbai, 2010 (6) BCR 218 (paragraph (xi)F & V Merchants Union versus Improvement Trust Delhi, AIR 1957 SC 344 (paragraph 19); Whirlpool Corporation versus Registrar of Trademarks, 1998 (8) SCC 1 (paragraph 14); Radhakrishnan Industries versus State of Himachal Pradesh, 2021 (6) SCC 771 (paragraph 27). Submissions of Mr. Chinoy, learned senior counsel for Respondent No.2 – Corporation in WP 1334 of 2019., Mr. Aspi Chinoy, learned senior counsel for respondent No.2 – Corporation submitted that the petitioner No.1 – Society is a registered co‑operative housing society of 194 members, who are tenants or allottee s of respondent No.2 – Corporation in respect of 10 chawls (collectively known as Shivaji Nagar) standing on a plot of land measuring 8200 square metres, which is owned by respondent No.2 – Corporation. In the year 2008, petitioner No.1 gave redevelopment rights in respect of these buildings or property to petitioner No.2, who carried on business as builders and developers., It is submitted that on 01 March 2018, respondent No.2 – Corporation issued a Letter of Intent and sanctioned redevelopment under the provisions of Regulation 33(7) of the Development Control Regulations. Respondent No.2 – Corporation collected a capitalized value of Rs 134.65 crore as a condition for grant of Letter of Intent. During the period between June 2018 and November 2018, respondent No.2 – Corporation issued IODs. By a demand notice dated 23 January 2019, respondent No.2 – Corporation demanded a payment of development charges aggregating to Rs 7.94 crore from the petitioners., Pursuant to a revised Letter of Intent and increase in the total area, respondent No.2 – Corporation sent another demand notice dated 18 June 2020 for recovery of development charges, amounting to a sum of Rs 3.98 crore from the petitioners. On 07 August 2020, the petitioners paid the development charges under protest. Respondent No.2 – Corporation, thereafter, further raised a demand notice for development charges of Rs 24.28 lakh, which was paid by the petitioners under protest on 21 December 2020., It is submitted by the learned senior counsel that Section 124F of the Maharashtra Regional Town Planning Act, 1966 does not refer to, or use the word owned by the local authorities. On its plain terms, Section 124F does not indicate a legislative intent to exempt from liability to pay development charges on development being carried on by third parties, on lands which are owned by the Government or local authorities. The language or plain terms of Section 124F does not give an exemption to a private or third party, who is carrying on development or redevelopment in his own right and for his own benefit, on the ground that the land on which such development is taking place is owned by the local authorities., It is submitted by the learned senior counsel that Section 124F by its terms only gives an exemption to development of lands vested in or under the control or possession of the Central or State Governments or of any local authority. Learned senior counsel submitted that the term vested cannot be equated with the word ownership. Section 124F, which provides for exemption, has to be construed strictly. He relied upon the judgment of the Supreme Court in the case of Fruit and Vegetable Merchants Union Subzi Mandi versus Delhi Improvement Trust, AIR 1957 SC 344 and more particularly, paragraphs 11, 14 and 19 thereof, and submitted that the term vesting has variety of meaning, which has to be gathered from the context in which it has been used. It may mean full ownership, or only possession for a particular purpose, or conferring the authority to deal with the property as an agent of another person or authority. He submitted that the word vest has not got a fixed connotation, meaning in all cases, that the property is owned by the person or the authority in whom it vests. It may vest in title, or it may vest in possession or it may vest in a limited sense, as indicated in the context in which it may have been used in a particular piece of legislation., It is submitted that Section 124F and in particular, the word vested used therein is unclear and ambiguous and has been incorrectly contended by the petitioners. Section 124F and in particular, the word vested used therein, necessarily has to be construed in the context of the rest of Section 124F and in the context of the purpose or object sought to be achieved by Section 124F., It is submitted that, in the context in which it has been used in Section 124F i.e. along with the words \under the control or possession\, the word vested connotes vested in enjoyment or use. So construed, Section 124F gives an exemption from levy of development charges, where the land which is being developed is in the present enjoyment or use of the Government or local authority, or under the control or possession of the Government or the local authority; as in all such cases, the development even if carried out by a third party, would necessarily have to be at the instance of and for the benefit of the Government or local authority., It is submitted that to construe Section 124F and the word vested as denoting ownership would result in Section 124F becoming arbitrary and unreasonable; inasmuch as it would result in a private party or third party, who is carrying on development in his own right and for his own benefit, would get an exemption from payment of development charges too, merely because the lessor or owner or reversion right holder is the Government or a local authority. Significantly, the petitioners have not been able to provide any basis or justification or public purpose that would be sub‑served if the exemption in Section 124F was construed as covering a private third party undertaking development of land in his own right and for his own benefit, merely because the lessor or reversionary right or owner of the land was the Government or a local authority. The petitioners case has been that they are not required to furnish any such basis or justification, in view of the plain and unambiguous terms of Section 124F., It is submitted that as Section 124F is an exemption provision, as has been held by the Constitution Bench of the Supreme Court in the case of Commissioner of Customs versus Dilip Kumar & Co., (2018) 9 SCC 1 it is a settled law that whether a person falls within an exemption clause (in contradistinction to a charging section or provision) is required to be strictly construed. A person invoking an exemption provision to relieve him of tax liability must establish clearly that he is covered by the said provision. In case of any doubt or ambiguity, benefit thereof must go to the State. If there is ambiguity in an exemption clause, the benefit of such ambiguity cannot be extended to the subject or assessee. It is submitted that, at numerous places in the Constitution Bench judgment in the case of Dilip Kumar & Co., both exemption notifications and exemption provisions or sections in a statute are treated as being at par., It is submitted by the learned senior counsel that respondent No.2 – Corporation has not added any words to Section 124F of the Maharashtra Regional Town Planning Act as sought to be canvassed by the petitioners to construe that only if the Central or State Governments or local authorities itself carries out development, they are entitled to seek exemption from payment of development charges under Section 124F. He submitted that the interpretation canvassed by respondent No.2 – Corporation merely intends construing the word vested in enjoyment or use. It is submitted by learned senior counsel that the term control or possession does not make any reference to title nor relates to ownership. The said provision does not contemplate the exemption to the development done by others., It is submitted by the learned senior counsel that since the language of Section 124F is ambiguous and is required to be interpreted in favour of the revenue to mean possession only. He submitted that the law on interpretation of taxing statute and exemption notification is that the ambiguity in charging section be interpreted in favour of the assessee, while ambiguity in exemption notification be interpreted in favour of the revenue. It is submitted that the three phrases in Section 124F would indicate that the authorities i.e. the Central or State Governments or local authorities must be in control and possession of lands and, therefore, vesting of the land or the building is not of ownership and, therefore, title to the lands for which exemption is sought is irrelevant and vesting must take colour from control and possession. It is submitted that for the purposes of exemption under Section 124F, the local authority must in present have all the facets of vesting, use, enjoyment, occupation, possession and control of land or building in addition to ownership. He submitted that the term control means actual dominion in present. If vesting was to mean ownership, Section 124F would have instead of the three phrases used the word ownership or belonging to and, therefore, ownership by itself is excluded and the three phrases are required to be read in context and conjunctively., It is submitted that the petitioners must give explanation about rationale for exemption and also explain for whose benefit development is being undertaken and why exemption is warranted. It is submitted that the word vested occurring in Section 124F is a term of ambiguous import. The word vesting by its very nature is ambiguous and susceptible to several interpretations. As a result, the language of Section 124F, which is a provision of exemption in a statute is unclear and ambiguous. The interpretation which favours the department must be accepted and the interpretation which favours the assessee must be rejected., Dr. Sathe, learned senior counsel in his rejoinder arguments submitted that in the present case, the land admittedly vests with respondent No.2 – Corporation, who exercises control in respect of the development or institution of use or change of use of the land and, therefore, is covered by exemption under Section 124F. He submitted that the same argument will also apply to lands owned by Maharashtra Housing and Area Development Authority and leased to co‑operative societies, where MHADA exercises full control over the lands or buildings., It is submitted that the word vested need not be satisfied in each and every case claiming exemption under Section 124F. It is sufficient for the person claiming exemption to prove either vested in or in control of or in possession of the respondent corporation. He submitted that assuming the word vested in is the term of ambiguous import, the exemption would nevertheless be available to lands which satisfy either one of the three criteria mentioned in Section 124F since the three phrases are used with or making them disjunctive., Learned senior counsel for the petitioners submitted that the word vest occurs at several places in the Maharashtra Regional Town Planning Act, such as Section 31(5), Section 128(3), Section 115(1), Section 68(A), Section 83(1), (3), Section 105(2), Section 113A, Section 118(1), (2), Section 119, Section 126(1)(c), Section 128(3), Section 160(2)(a) and Section 161. The word vesting in the Act, at all places, is used in the context of ownership. Therefore, the mere fact that the words belonging to or owned by are not used in Section 124F makes no difference. Learned senior counsel submitted that in any case, the words used disjunctively i.e. vested in, under control of and in possession of denote a much wider meaning than the lands owned by or belonging to., It is submitted that the respondents seek to add a few more caveats for applicability of Section 124F and, therefore, according to the respondents, Section 124F actually should read as follows: 124F No Development Charge shall be levied on institution of use or on change of use or development of any land or building vested in or under the control or possession of the Central or State Governments or of any Local Authority. (i) in cases where the Central Government, State Government or Local Authority is itself undertaking the activity of institution or change of use or development of its land. (ii) in cases where the development is carried out at the instance of or for the benefit of the Central Government, State Government or Local Authority, (iii) in case where Central Government, State Government or Local Authority in present has use, enjoyment, occupation, possession, and control of the land or building. (iv) in case where Central Government, State Government or Local Authority has actual dominion in present over land and building. (v) if the development or institution of use or change of use of land or building should be deemed to be for the benefit of Central Government, State Government or Local Authority even though incidental benefit is enjoyed by the developer., It is submitted by learned senior counsel that the language of Section 124F is absolutely clear and not ambiguous. Since there is no ambiguity in the said provision, the issue of interpretation of such a statutory provision or even a statutory notification granting exemption in a manner sought to be interpreted by the respondents would not arise. It is submitted that Sections 124A to 124F are part of the statute, which is a provision for levy, assessment and recovery of the impost. In the event of any ambiguity, it has to be interpreted in favour of the assessee. He submitted that the judgment in the case of Dilip Kumar & Co. (supra), the Supreme Court dealt with the exemption notifications issued by the Executive in exercise of the statutory power and was not dealing with the statutory provision., Learned senior counsel relied upon the judgment of the Supreme Court in the case of State of Maharashtra versus Shree Vile Parle Kelwani Mandal, 2022 2 SCC 725, and submitted that if there is any ambiguity in any of these three components, no tax can be levied till the ambiguity or defect was removed by the legislature. In case of exemption notification or clause, the same is to be allowed based wholly by the language of the notification and exemption cannot be gathered by necessary implication or on a construction different from the words used by reference to the objects and purpose of granting exemption. The interpretation of Section 124F by the respondent corporation does complete violence to the plain, clear, and unambiguous language., It is submitted that the development charges shall be levied by the planning authority or development authority on institution of use, change of use, of any land or building for development of any land or building for which permission is required under the Maharashtra Regional Town Planning Act. The person instituting the use or change of use or commencing development is the assessee. The permission for institution of use or change of use or development of land or building is required under Sections 43 and 44 of the Maharashtra Regional Town Planning Act unless such activity is undertaken by the Central Government, State Government or local authority., It is submitted that if the interpretation of the respondent corporation of Section 124F is accepted, then both Sections 124A and 124F would become meaningless insofar as institution of use, change of use or development of any land or building vesting in or under control of or in possession of the three authorities are concerned. The fact that Section 124F grants exemption in respect of lands and buildings vesting in or under the control or possession of the three authorities for which permission is required in unmistakable terms indicates that a person other than these three sets of authorities is undertaking these activities, when exemption under Section 124F is attracted. He submits that if the Bombay High Court accepts the interpretation of Section 124F as canvassed by the respondent corporation, such interpretation would render Section 124F completely nugatory, which cannot be the intention of the legislature., Learned senior counsel placed reliance on the following judgments in his rejoinder arguments: Commissioner of Income Tax, Udaipur, Rajasthan versus McDowell & Company Limited (2009) 10 SCC 755; Jindal Stainless Limited and others versus State of Haryana and others; Jalkal Vibhag Nagar Nigam and others versus Pradeshiya Industrial and Investment Corporation and others, 2021 SCC Online SC 960; Tata Iron and Steel Company Limited and others versus State of Bihar and others; B. Premanand and others v. Mohan Koikal and others (2011) 4 SCC 266; Shahed Kamal and others v. Pagarani Universal Infrastructure Private Limited and others decided on 17 March 2022 in Appeal (L) No. 8104 of 2020; Union of India v. Commercial Tax Officer, West Bengal and others., It is submitted by learned senior counsel that the case of the petitioners would fall under Section 124F(1) of the Maharashtra Regional Town Planning Act. All the judgments referred to in the case of Dilip Kumar & Co. were the exemptions under Section 124F(2). He submitted that unless shown that plain interpretation leads to ambiguity, purposive interpretation is not permissible. He submitted that when Section 124A was inserted in the Maharashtra Regional Town Planning Act, Sections 44 and 45 of the Act already existed. Application under Section 44 of the Act is not required to be made by Central Government or State Government or local authorities. The rest of the persons seeking development of the land, are required to apply under the said provision., Learned senior counsel placed reliance on the definition of control prescribed in Law Lexicon by Ramanathan Iyer. He also relied upon the dictionary meaning of control prescribed in Lex Dictionary., By this writ petition filed under Article 226 of the Constitution of India, the petitioners have prayed for a writ of certiorari for quashing and setting aside the demand notices for development charges, development cess and labour welfare cess.
id_1351	5	The petitioners have prayed for setting aside the demand notices for development charges at this initial stage and prayed for reliefs in respect of labour welfare cess or development cess at the later stage., On 27th August 1946, the grant was made with respect to the property of the land admeasuring 1,045 square yards equivalent to 897.30 square metres or thereabouts being new plot number 362/2 and old plot numbers 364 and 363, part of Suburban Scheme No. III, Chembur as described in paragraph 1.1 of the petition. The State of Maharashtra is the owner of the said land., In the year 1967, the flat purchasers formed a society in the name of Basant Vihar Co-operative Housing Society Limited which is duly registered. On 22nd August 1969, the legal heirs of Mr. Basantrai and the petitioner society entered into a registered Deed of Conveyance thereby conveying the said property in the name of the petitioner society., On 2nd January 2020, in the Special General Body meeting, the petitioners decided to go for self‑redevelopment and sought proposals from various development consultants/contractors. The petitioners accordingly passed a resolution on 21st January 2020 and decided to appoint Messrs. Mahavir Enterprises on 6th February 2020 as the contractor. On 31st March 2022, petitioner No. 1 executed and registered a development agreement with petitioner No. 2 for the redevelopment of the said land., On 25th April 2022, the respondents issued a tax invoice challan thereby demanding development charges and other amounts from the petitioners. The petitioners have thus filed this petition for various reliefs., Submissions of Mr. Sanket Mone for the petitioners in Writ Petition Locus Standi 17580 of 2022: Mr. Mone, learned counsel for the petitioners, adopts the submissions made by Dr. Sathe, learned senior counsel for the petitioners in Writ Petition 1334 of 2019., Submissions of Mr. Reis, learned senior counsel for the Municipal Corporation in Writ Petition (L) No. 17580 of 2022: Mr. Reis submitted that Chapter VI‑A of the Maharashtra Regional and Town Planning Act, inserted in the year 1992, deals with levy, assessment and recovery of Development Charges. The Development Charge is leviable as a fee imposed to enable the Authority to provide public amenities within its area and for improvement of the area. Contribution towards Development Charges is relatable to amenities provided by the Authority, such as roads, parks, water supply, drainage, etc. He relied upon Section 2(2) of the Maharashtra Regional and Town Planning Act., Learned senior counsel for the Municipal Corporation states that the constitutional validity of Chapter VI‑A has been upheld in the judgment of Solapur Promoters & Builders Association (supra). The Supreme Court of India upheld that the classification under Section 124B of the Act is based on intelligible differentia, having nexus to the object sought to be achieved., Learned senior counsel invited our attention to the prayers in the writ petition and submitted that the challenge of the petitioners is only for the refusal to grant exemption under Section 124F on the ground that the property is owned by the Collector and, therefore, vested in the State. There is no challenge to the constitutional validity of Chapter VI‑A or the charging Section 124A. He submitted that even otherwise, no such challenge could have been made in view of the principles laid down by this Court in Solapur Promoters & Builders Association (supra)., It is submitted by learned senior counsel that right from 1992, development is undertaken privately by developers on land belonging to the Authorities and they have been paying Development Charges and they all understood that exemption is not applicable to the development undertaken by them., Learned senior counsel for the respondent‑Corporation relied upon Section 124J of the Maharashtra Regional and Town Planning Act, which defines Development Fund. He relied upon the unreported judgment in the case of Real Gem Buildtech versus State of Maharashtra, decided on 15 September 2017 in Writ Petition No. 2820 of 2016 and, in particular, paragraphs 9, 13, 18 and 19. He also placed reliance on the judgment of the Honourable Supreme Court in the case of Municipal Corporation of Hyderabad versus P. N. Murthy, AIR 1987 SC 802 and, in particular, paragraphs 1, 5 and 7. Learned senior counsel placed reliance on the judgment of the Supreme Court in the case of Municipal Commissioner of Dum Dum Municipality versus Indian Tourism Development Corporation (1995) 5 SCC 251 and submitted that the expression vest‑in has several shades of meaning. He submitted that the levy of Development Charges demanded by the Planning Authority are the charges for public purposes. The petitioners have not shown in the writ petition how they are entitled to seek exemption from payment of Development Charges., It is submitted that for obtaining permission to construct, an application must be made to the Planning Authority under Chapter VI‑A, including an application under Section 124E in respect of Development Charges. Such application is thereafter considered by the Authority. The consideration includes Development Charges to be paid. If any exemption is sought, the reasons for which exemption is to be granted have to be disclosed by the persons seeking exemption., It is submitted that once the application for Development Charges is decided by the Planning Authority, any aggrieved person can file an appeal under Section 124G after following the procedure under Section 124H, which includes pre‑deposit of the amount claimed in the notice of assessment from the person who wants to develop. It is submitted that in this case, no appeal has been filed by the petitioners to avoid the pre‑deposit of amount. He submits that this writ petition shall not be entertained also on the ground that an efficacious remedy is available for filing an appeal under the Maharashtra Regional and Town Planning Act., It is submitted by learned senior counsel that the Development Charges are not in the nature of taxes but are a fee. He submitted that none of the judgments thus relied upon by the learned senior counsel is applicable. He submitted that the judgments cited by learned senior counsel for the petitioners are clearly distinguishable. No application is made by the petitioners under Section 124F and the basis thereof., It is submitted by learned senior counsel that levy of Development Charges under Section 124A is on institution of use, change of use or development of any land or building and under Section 124A(2), the Development Charge shall be leviable on any person who institutes the use, change of use or seeks development of any land or building., It is submitted that Section 124F has to be read ejusdem generis with the remaining part of Section 124F, vesting, control, possession as well as in view of the fact that the exemption is only for development being undertaken by the Central or State Government or Local Authority and not by any private party. If the argument of the petitioners is accepted, it would fail the test of intelligible differentia having a nexus to the object sought to be achieved., It is submitted that under Section 124A, any person who wants to develop his land has to make an application and pay the Development Charges. The petitioners, therefore, cannot classify a person developing private properties or properties of the Authorities. If the arguments of the petitioners are accepted, this would not stand the test of intelligible differentia., It is submitted that the petitioners have undertaken the development independently of any Local Authority and on his own accord on the property of the Authority. They are not the contractors of the Authority and, therefore, it cannot be held that the development is on behalf of or for the exempted category. Exemption under Section 124F has to be read with Section 124A and Section 44 of the Maharashtra Regional and Town Planning Act. Exemption under Section 124F is claimed only if the development is undertaken by the Authority. When the Authorities have divested their rights to develop the property privately, merely because the Authority has title to the property, it cannot be said that the property vests in the Local Authority and, moreover, the property is not under the control or possession of the Local Authority., It is submitted by learned senior counsel that for getting exemption under Section 124F, the property ought to be owned by, vested in, and shall be in possession and control of the Local Authority. Since the development is by a private party and not by or on behalf of the Authority, the exemption is not applicable. It cannot be held that property vests in the Public Authority only because they have title to the property when control or possession is not with the Local Authority., Learned senior counsel for the respondent‑Corporation submitted that in the case of Real Gem Buildtech (supra), the challenge was to double taxation since the Planning Authority charged Development Charges under Section 124A and additional Floor Space Index under Regulations 33(24) and 35(4) of the Development Control Regulation. This Court, after considering various provisions relied upon by the parties, including Section 124A, held that the Development Charges are payable., Learned senior counsel then relied upon the judgment in P. N. Murthy (supra) and submitted that the question which fell for consideration before the Honourable Supreme Court was whether the Municipal Act exempted the payment of assessment if the property is vested in the Authority. The building was owned by the Municipality and occupied by the tenants on the basis of a Hire Purchase Agreement, which would make them owners after the period for payment of the entire amount came to an end. The question was whether the building owned by the Corporation vests in the Corporation. The Supreme Court held that the property does not vest merely because it is owned by the Corporation., Learned senior counsel placed reliance on the judgment of the Honourable Supreme Court in Dum Dum Municipality (supra) and submitted that the question fell for consideration of the Supreme Court was whether the property owned by the Central Government and given to the International Airport Authority for running airports, because of ownership the property vested in the Central Government and, therefore, exempted from payment of municipal taxes. The Supreme Court held that because the Central Government is merely an owner, the property does not vest in the Central Government., By this petition filed under Article 226 of the Constitution of India, the petitioners seek a declaration that the demand and recovery of the development charge is without authority of law and ultra vires the Constitution of India., The petitioners also seek a writ of certiorari for quashing and setting aside the impugned demand note and the corresponding impugned tax invoice annexed as Exhibits G and H to the petition. The petitioners also seek a writ of mandamus for order and directions against the Municipal Corporation to refund the amount of the first installment of development cess/additional development cess together with interest thereon and for other reliefs., The Municipal Corporation is the owner/lessor of Plot No. 92, Agripada (West), Estate as well as the building standing by the name Bene Israel Building thereof. It was constructed during World War II and used for housing the orphans and the destitute from the Bene Israel Jewish Community. The said plot was leased in the year 1937 for 99 years and further renewed up to 11th August 2048., The petitioners mooted a redevelopment proposal under Regulation 33(7) of the Development Control and Promotion Regulations 2034. On 14th January 2022, the Municipal Corporation issued an Intimation of Development after receipt of No Objection Certificate from the MBE & R Board and Estate Department of the Municipal Corporation of Greater Mumbai, the lessor. In furtherance of the Intimation of Development, the Municipal Corporation of Greater Mumbai raised various demands including the impugned notes and demand invoices., Submissions of Mr. Sanjay Kadam, learned counsel for the petitioner in Writ Petition No. 2193 of 2022: Mr. Kadam, learned counsel for the petitioners, adopted the submissions made by Dr. Sathe, learned senior counsel for the petitioners in Writ Petition No. 1334 of 2019 and made additional submissions., It is submitted by the learned counsel that the development charge cannot be levied in respect of the redevelopment of Municipal Corporation of Greater Mumbai owned land by the Corporation. As per the scheme of the Bombay Improvement Trust Act, these leasehold lands were entrusted to the Bombay Improvement Trust for the purpose of improvement by providing proper roads, sanitation etc., and after making such improvements, these leasehold lands were granted on lease to various lessees. The said leasehold lands are already developed by the said trust and/or the respective lessees. It is submitted that the development charge and/or development cess cannot be imposed in respect of redevelopment of the said leasehold lands., It is submitted that Section 124A of the Maharashtra Regional and Town Planning Act, by way of an amendment in the year 1992, classifies the categories in respect of which the Development Charges can be levied viz. institution of use of land, change in use or development of land and building for which permission is required under the Act. He relied upon the definition of development under Section 2(7) of the Act, then prevailing in the year 1992 and submitted that the said definition did not include the words demolition of the structures and erection of new building. He submits that it was a clear intention of the Legislature not to bring demolition of the structures and erection of new building within the ambit of Section 124A of the Act., It is submitted by the learned counsel that the Development Control Regulation 1991 which came into effect on 20th February 1991 permitted various rehabilitation and redevelopment schemes by way of demolition of existing structures and erection of new buildings thereon. The definition of development however renamed the same., It is submitted that the petitioners are implementing a redevelopment scheme under Special Regulation i.e. Development Control Regulation 33(7) read with Appendix III of the Development Control and Promotion Regulations 2034. He relied upon clause 15 of the Development Control and Promotion Regulations 33(7) and submitted that the said provision clearly contains the provision regarding imposition of additional development cess. It is submitted that the levy, demand and recovery of the development charges under Section 124A of the Maharashtra Regional and Town Planning Act in respect of the redevelopment of the Municipal Corporation leasehold plot is arbitrary and ultra vires the Constitution of India., Submissions of Mr. Walawalkar, learned senior counsel for the respondent‑Corporation in Writ Petition No. 2193 of 2022: Mr. Walawalkar, learned senior counsel for the respondent‑Corporation, submitted that in this case, the respondent‑Corporation is the owner of the plot, which was granted on lease by the Corporation to the predecessors of petitioner No. 1. The development rights are given by petitioner No. 1 in favour of petitioner No. 2. He submitted that the onsite infrastructure charges are also challenged by the petitioners in this case, which can be argued separately by the parties. Even if the Central or State Government or Planning Authority is required to apply for development permission they are exempted from payment of Development Charges under Section 124F., Learned senior counsel placed reliance on the marginal note of Section 44 of the Maharashtra Regional and Town Planning Act viz. “Application for permission for development”. He submitted that it refers to development of land or building for which permission under the Act is necessary. Section 43 also specifically provides that after the date on which the declaration of intention to prepare a Development Plan for any area is published in the Official Gazette, no person shall institute or change the use of any land or carry out any development without the permission in writing of the Planning Authority. He submitted that if the development of any land or building is intended to be undertaken and permission for such development is required under the Act, then such person has to apply for permission for such development, and the Planning Authority has no choice but to levy Development Charge because of the mandatory language used namely “shall levy”., It is submitted that Section 44 does not, even in an indirect manner, provide that if the land is owned by the Central or the State Government or by the Local Authority, no permission will be required under the Act. The said section provides a procedure to be followed by any person, not being Central or State Government or Local Authority, to apply for such permission to develop in such form and containing such particulars and accompanied by such documents as may be prescribed., It is submitted that the Development Control Regulation 1991 and Development Control and Promotion Regulations 2034 make detailed provisions for such applications. The words “rules made in this behalf” will include the said Regulations. There are other statutory provisions that govern the procedure to be followed when Central or State Government, or Local Authority intends to develop any land., Learned senior counsel relied upon the objects and reasons in enacting Chapter VI‑A of the Maharashtra Regional and Town Planning Act and submitted that the purpose of enacting Chapter VI‑A was for the benefit of the Central Government, State Government or Planning Authority in public interest and not for the benefit of any developer or any other persons redeveloping the property for their own profit., Learned senior counsel placed reliance on Section 22(m) of the Maharashtra Regional and Town Planning Act read with Sections 43 and 44. He submitted that Section 44 is not the only section relating to permission. Section 44 is the section relating to application for permission for development as the marginal note of that section shows. It is Section 43, which makes such development permissible only on obtaining permission in writing of the Planning Authority, without mentioning Central or State Government or Local Authority for excluding them from the purview of Section 43., It is submitted by learned senior counsel that Section 44 of the Maharashtra Regional and Town Planning Act mandates on the party, not being Central or State Government or a local authority, who intends to carry out any development on any land, to make an application in writing to the Planning Authority for permission. He submitted that if the Central or State Government or Local Authority intends to develop the property, it shall not be required to make an application to the Planning Authority as stated under Section 44 of the Act., It is submitted that it is not any Local Authority which intends to make any development on the land even when it is the owner of the land. It is the petitioner‑Society which intends to develop the land by demolishing the old building and by constructing a new one in its place by availing of the benefits conferred on such development by the Development Control Regulation in the nature of additional Floor Space Index by way of incentive, which will be sold in the market., It is submitted that any such development proposed to be carried out by a developer or by a private party will add to additional population in the area, causing pressure on the amenities already in existence, necessitating provision by the Local Authority to meet the needs of increased population in the area. The petitioners are going to be the beneficiary, sharing advantages of incentive Floor Space Index, and additional amenities, and, therefore, are bound to make payment of Development Charges., The petitioners will have to prove that it is the Local Authority which intends to develop the land. If the development is to be made by the Local Authority itself, that Authority is not required to make such application under Section 44. There is no provision under the Act stating that no permission would be required from the Planning Authority for such development by the Local Authority. Merely because the Local Authority is the owner of the land is not at all relevant for interpreting Section 44. What is material and relevant for the purpose of Section 44 is not who is the owner of the land intended to be developed, but at whose instance the development of the land is undertaken., Learned senior counsel invited our attention to Section 44 of the Maharashtra Regional and Town Planning Act and submitted that the said section opens with the words “except otherwise provided by the rules made in this behalf”, which indicates that the provision is to make it obligatory for every person not being a Local Authority, intending to make development, to apply for such permission for development of any land or building. If the Local Authority was to intend such development, such application as laid down in Section 44 was not necessary., Learned senior counsel placed reliance on Regulation 4 of Development Control Regulation 1991 including the marginal note and submitted that no person shall erect or re‑erect a building or alter any building or carry out any development or redevelopment on any plot of land or cause the same to be done without first obtaining separate development permission and commencement certificate from the Commissioner. He relied upon Regulation 9 of Development Control and Promotion Regulations 2034 and submitted that the said Regulation lays down the procedure for obtaining development permission and commencement certificate. He submitted that Regulation 4(2) specifically excludes constructions for operational purposes including maintenance of operational structures by the organizations, authorities or departments specifically mentioned therein and which are given exemption by special permission of the Commissioner in each case, except those relating to Floor Space Index and Fire Precautions., Learned senior counsel placed reliance on Regulation 4(3) of Development Control and Promotion Regulations 2034 and submitted that even the said provision provides for exclusion of certain constructions by exempting them from the purview of those regulations, except those relating to Floor Space Index and Fire Precautions., Learned senior counsel also relied upon Regulations 5, 9 and 10 of the Development Control and Promotion Regulations 2034 and submitted that certain constructions, which are operational are excluded from the purview of said regulations. However, under sub‑rule (2), such exemption is by special permission of the Commissioner in each case, except those relating to Floor Space Index and Fire Precautions. All other constructions by any person shall require permission under Sections 43 and 44 of the Maharashtra Regional and Town Planning Act read with Regulations 4 and 5 of Development Control Regulation 1991., Learned senior counsel placed reliance on the proviso to Regulations 4 and 5 of Development Control Regulation 1991 and submitted that it is clear that residential building shall not be entitled for exemption at all even if they are by Authorities specified under Regulation 4 of the Regulation. Permission under Sections 43 and 44 shall be necessary for construction of residential buildings by every person, even by MHADA / Municipal Corporation of Greater Mumbai, a local authority., Learned senior counsel placed reliance on Section 58 of the Maharashtra Regional and Town Planning Act and provisions of Maharashtra Development Plan Rules, 1970 and submitted that when any Government intends to carry out development, the officer in charge for such development of any land to be undertaken for the purpose of any of its departments, shall inform in writing to the Planning Authority the intention of the Government to do so, giving full particulars thereof, and accompanied by such documents and plans as may be prescribed at least ten days before undertaking such development., Learned senior counsel submitted that under Rule 14 of the Maharashtra Development Plan Rules 1970, which relates to development to be undertaken on behalf of Government, prescribes such documents and plans referred to in Section 58 which should accompany the intimation of intention of Government to carry out development of any land for its purpose, even if it is not called an application as mentioned in Section 44., It is submitted that even in the case of development to be made or undertaken on any land by the Municipal Corporation itself, it has its Building Proposal (Special Cell) Department, where the plans with other relevant particulars are to be submitted to the Municipal Commissioner and the development is to be made after the plans are duly sanctioned. The purpose of such control over every development within the jurisdiction of the Municipal Corporation is to carry out planned development. He submitted that it is not the case of the petitioners that such permission is not necessary at all for development on land owned by Government, MHADA or the Corporation., It is submitted by learned senior counsel that if the arguments of the petitioners that no permission will be necessary under Section 44 of the Maharashtra Regional and Town Planning Act in respect of development of land belonging to Government or Local Authority at all, it will have shocking results, disastrous consequences and will create chaotic conditions, as the requirements of several provisions of law imposing strict conditions for planned development will be rendered nugatory, especially those relating to Floor Space Index and Fire Precautions., It is submitted that even if MHADA, a Local Authority, is allowed to function as the Planning Authority for its projects, there does not appear to be any amendment in the Maharashtra Regional and Town Planning Act or the Development Control Regulations to exclude MHADA from Sections 22(m), 43 or 44 or from the rigours of Sections 100 and 101., Learned senior counsel placed reliance on Sections 100 and 101 of the MHADA Act and submitted that a procedure for giving notice and obtaining permission for building to be repaired or reconstructed by MHADA is prescribed under Section 101 of the MHADA Act. If a notice is required to be given or any application is to be made and the approval, sanction, consent, or permission of the Municipal Commissioner is required to be obtained, the necessary permission shall be deemed to be obtained by MHADA. If MHADA gives a reasonable notice of the proposed work to the Municipal Commissioner or other Authority concerned before the work is commenced, the Municipal Commissioner can consider such proposal., It makes obligatory for the State Government to consider every objection or suggestion made by the Municipal Commissioner under sub‑section (3) of Section 101. The Government is required to pass orders on such application after carrying out an investigation and the work shall be carried out in accordance with such orders. He submitted that in spite of the non‑obstante clause in the opening of Section 100, the Municipal Commissioner has a very vital role to play. There is necessity of submitting application for permission of the Municipal Commissioner even if MHADA intends to carry out such development., So far as the interpretation of Section 124F of the Maharashtra Regional and Town Planning Act as sought to be canvassed by the petitioners is concerned, it is submitted by learned senior counsel for the respondent‑Corporation that if the legislature had an intention to confer the benefit of exemption on the land owned by any Local Authority, nothing was easier for the legislature than to use the term “owned by” in that section. The meaning of the said words will have to be ascertained from the context in which they are used. The other words used in the said section are “under control” or “in possession of” Local Authority., It is submitted that MHADA has no control at all over the land leased out to the petitioners, nor on the building built thereon. None of the terms of the lease give any power to the lessor to give any direction or order which could have any statutory force except a right to terminate the agreement or a right of re‑entry on breach of any term of the lease, like any other ordinary landlords. MHADA and its lessees or the Municipal Corporation of Greater Mumbai and its lessees are ordinary contracting parties like any other individual., It is submitted that even under the terms of the lease between MHADA and the petitioners, MHADA cannot interfere with the possession of the petitioners and the lessee will be entitled to enjoy the leased plot and building so long as the petitioners pay the agreed lease rent and abide by the terms of the lease without breach. The lessee peacefully holds and enjoys the leased land during the term without any unlawful interruption by the Authority or any persons claiming through or under the Authority., It is submitted that the land and the building as of today are not vested in MHADA or the Municipal Corporation, nor under control of such Authority or in possession of MHADA or the Municipal Corporation. The intended development cannot be said to be exempted from levy of Development Charges as none of the three pre‑conditions for exemption is satisfied, and it is not MHADA or the Central or State Government or the Corporation which intends to carry out the development., It is submitted by learned senior counsel that in these cases, the development is intended and being carried out by a private party and not by MHADA or the Corporation as a Local Authority. The land is leased by MHADA to allottees and the allottees have made constructions on the leased plot, which construction is owned by the allottees. In this case, the Corporation had agreed to grant lease of the concerned plot on constructing a building under a building agreement. They constructed a building on that plot and the Corporation granted lease to the petitioners., It is the lessees who intend to carry out such construction and, in fact, have applied for such permission in their names. Their applications are submitted along with plans and documents as required by the Development Control Regulations and Building Byelaws and are considered by the Commissioner and granted permission on finding the same in order.
id_1351	6	Learned senior counsel submitted that demolition of the old building and reconstruction of a new building is building operations and a development within the meaning of Sections 2(5) and 2(7) of the Maharashtra Regional and Town Planning Act (MRTP Act) for which permission and an application are required., It is submitted that the land being owned by the Maharashtra Housing and Area Development Authority (MHADA) or the Municipal Corporation will cease to be relevant for liability to pay Development Charges under Section 124A of the MRTP Act by the person intending to carry out development, as it requires permission mentioned in Section 124A, especially Sections 43 and 122. The building to be demolished and the new building are not vested in MHADA nor in the Corporation; they are in possession and control of the allottees, who also receive lease rents., Regarding the facts in the writ petition filed by Bene Israel Homes for Destitutes & Orphans (Writ Petition No. 2193 of 2022), learned senior counsel stated that the land was owned by the Corporation and given to the predecessors of petitioner No.1 under a Building Agreement. The lessee constructed a building thereunder and the predecessors were given the land and building on lease., Learned senior counsel submitted that under the Lease Deed, the Commissioner covenanted that the lessee paying rent and observing all covenants may hold and enjoy the premises during the term without interruption by the Corporation or any person claiming under it. The petitioners must apply for and obtain sanction for their redevelopment plans; the development is intended by the petitioners, not by the Corporation. The provisions of Development Control Regulations (DCRs) have statutory force and bind everyone residing in the territorial jurisdiction of the Planning Authority., In Writ Petition No. 1937 of 2016, the petitioner impugned the demand/calculation sheet issued by the Slum Rehabilitation Authority (SRA) calling for payment of Rs 32,37,32,020 towards development charges and other reliefs., Respondent No.1, the State of Maharashtra, is the owner of the plot bearing CS No. 725 (pt.), 1/725 (pt.) and 3/725 (pt.) of Malabar Hill Division, D‑Ward (the writ property), which consists of land together with hutments/structures. The three societies—New Jaiphalwadi SRA CHS Ltd., Janata Hill SRA CHS Ltd., and Nav Maharashtra Nagar SRA CHS Ltd.—entered into Development Agreements with the petitioner., The petitioner sought to undertake redevelopment at the said property, proposing twelve rehabilitation buildings for erstwhile hutment dwellers and four towers for new third‑party flat purchasers. Two sale towers, namely The Imperial, have been constructed and a third sale tower is under construction. The petitioner obtained Fire No Objection Certificate and No Objection Certificate from the Airport Authority of India for Sale Tower No. 3, and Respondent No.4 issued an approval intimation on 31 January 2011 on the terms and conditions set therein., The petitioner was served with the impugned calculation sheet dated 30 November 2015 demanding Rs 32,37,32,020 in development charges (Annexure A). The petition was filed on 2 May 2016 praying for various reliefs., The petitioner contended that Respondent No.1 (the State of Maharashtra) is the owner of the writ property and therefore the State Government should be exempt from payment of development charges under Section 124F of the MRTP Act. The petitioner carried out redevelopment on the plot owned by Respondent No.1 and claims entitlement to exemption., Dr. Sathe, learned senior counsel for the petitioner, reiterated the submissions made in Writ Petition No. 1334 of 2019., Respondent No.1, the Corporation, adopted the submissions of Mr. Chinoy (senior counsel in WP 1334 of 2019), Mr. Reis (senior counsel in WPL 17580 of 2022) and Mr. Walawalkar (senior counsel in WP 2193 of 2022)., By this writ petition filed under Article 226 of the Constitution of India, the petitioners prayed for a writ of certiorari to quash and set aside the impugned notice dated 21 March 2022 concerning the levy/recovery of development charges amounting to Rs 1,92,05,600 and for various other reliefs., Respondent No.2, MHADA, is the owner of the writ land. MHADA had already constructed a building on the land. On 26 December 1990, a lease deed was executed between Respondent No.2 and Respondent No.7, leasing the property to Respondent No.7 for 99 years. Petitioner No.1 was appointed as developer on 16 December 2018. The Deputy Registrar of Cooperative Societies granted a No Objection Certificate for redevelopment and for the appointment of Petitioner No.1 as developer., On 13 September 2019, a Development Agreement was registered between Petitioner No.1 and Respondent No.7 to redevelop the property. A First Supplemental to the Agreement for Redevelopment was executed on 14 October 2019., On 19 March 2020, 27 July 2021 and 28 December 2021, the petitioners obtained offer letters from Respondent No.2. Between 20 July 2021 and 31 December 2021, the petitioners paid a substantial amount to Respondent No.2 with respect to the redevelopment., On 12 October 2021, Respondent No.2 issued a No Objection Certificate to the petitioners. On 29 October 2021 and 10 December 2021, the petitioners received an Intimation of Approval from Respondent No.2 and also obtained a commencement certificate up to plinth level on 16 December 2021., On 2 February 2022, the petitioners registered the subject property with MahaRERA. On 21 March 2022, Respondent No.4 issued the impugned notice levying development charges. Consequently, on 24 March 2022, the petitioners filed this writ petition for various reliefs., Mr. Godbole, learned counsel for the petitioners, submitted that the writ plot belongs to MHADA and is leased to Respondent No.7 society. The land continues to belong to MHADA and is under its control. The lease deed dated 26 December 1990 states that MHADA has all rights and obligations in relation to the subject land and that only the building consisting of 40 tenements was conveyed to Respondent No.7 by a sale deed; the lease pertains to the land underneath., Learned counsel placed reliance on the lease deed and submitted that Respondent No.7 society has no right, title or interest in the land, citing clause 5 of the sale deed. Thus, MHADA remains the owner of the writ land underneath the building., Learned counsel invited attention to Section 124F of the MRTP Act, stating that the word “or” is disjunctive and both categories—lands vested in and lands under the control and possession of a local authority—are exempt. Since the land vests in MHADA, the requirement of being under control and possession is deemed satisfied., Learned counsel relied on the definition of “owner” under Section 2(18) and “occupier” under Section 2(17) of the MRTP Act, noting that the Maharashtra Rent Control Act, 2000 does not apply to premises belonging to the authority, thereby confirming that exemption under Section 124F extends to premises vested in, under control of, or possessed by the prescribed authorities., It is submitted that there is a clear distinction between Sections 124F(1), 124F(2) and 124F(3). The MHADA Act does not prohibit additional area from being sold in the open market. The respondent’s submission that Section 124F is not applicable where a society is undergoing redevelopment lacks substance., Learned counsel for the petitioner relied on Section 2(13) of the MHADA Act, submitting that redevelopment is included in “development” as defined under that section, and that the local authority defined in Section 124F is a separate statutory concept., Learned counsel cited Supreme Court judgments: State of Maharashtra v. Shri Vile Parle Kelvani Mandal & Ors. (Civil Appeal No. 7319 of 2021); Essar Steel India Ltd. & Anr. v. State of Gujarat & Anr. (Civil Appeal No. 4842 of 2017); Giridhar G. Yadalam v. Commissioner of Wealth Tax & Anr. (Civil Appeal No. 728 of 2011)., The learned counsel argued that the development charges demanded are in the nature of taxes and therefore cannot be collected without authority of law under Article 265 of the Constitution of India, relying on Supreme Court judgments in Ahmedabad Urban Development Authority v. Sharad Kumar Jayantikumar Pasawalla (1992) 3 SCC 285 and Amit Maru & Anr. v. State of Maharashtra & Anr. (2010) SCC OnLine Bom 774., Mr. Kumbhakoni, Advocate General for MHADA and the State of Maharashtra, submitted that the development charges levied by MHADA are fees, not taxes, and that the petitioners’ reliance on tax jurisprudence is inapplicable. Since the charges are fees, strict interpretation is diluted., The Advocate General noted that since 1992, development charges have been paid by petitioners and referred to paragraphs 7 and 8 of the objects and reasons for inserting Sections 124A to 124F in the MRTP Act, contending that Article 265 has no application., It is submitted that petitioners seeking exemption from taxes must prove such exemption; exemption provisions must be construed strictly, considering the objects and purposes of the legislation. Where ambiguity exists in Section 124F, the court may apply purposive interpretation., The Advocate General argued that in a taxing provision, strict interpretation favours revenue, whereas in an exemption provision under Section 124F, benefit goes to revenue. He stated that Section 124A cannot be applied to the proviso of Section 43; no permission is required from the Central Government, State Government or Local Authority for development under Section 44; Section 58 applies when development is undertaken on behalf of the Government., If Section 43 applies to development by any party other than the Central Government, State Government or Local Authority, development charges will be payable under Section 124A. Section 124A(2) is person‑centric, not property‑centric; the person applying must be examined for exemption, not the owner. Under Section 124E, the person intending to carry out development must apply. Chapter VI levies charges on the developer; if the Government appoints an agency, charges may not be levied. Exemption is not granted to a private party developing land., It is submitted that the terms “vest”, “control” or “possession” are not disjunctive and must be read conjunctively, considering legislative intent and purposive interpretation, especially for taxing provisions. If plain interpretation yields an absurd result, purposive interpretation should be adopted., The Letter of Intent (LoI) and revised LoI issued to the petitioners by the authorities clearly provide for development charges under Section 124A. The petitioners have accepted the Planning Authority’s condition that development charges must be paid. The Advocate General relied on judgments: Solapur Promoters & Builders Association Society & Anr. v. State of Maharashtra & Ors. (2005) 4 Mh. L.J. 445; State of Maharashtra v. Shri Vile Parle Kelvani Mandal & Ors. (2022) 2; Yum! Restaurants (Marketing) Private Limited v. Commissioner of Income Tax, Delhi (2021) 7 SCC 678; Anuj Jain, Interim Resolution Professional for Jaypee Infratech Ltd. v. Axis Bank Ltd. & Ors. (2020) 8 SCC 401; Prof. Yashpal & Anr. v. State of Chhattisgarh & Ors. (2005) 5 SCC 154., The petitioners prayed for a writ of mandamus against MHADA to restrain demand for development charges amounting to Rs 12,71,09,700 and sought a direction for issuance of a commencement certificate without payment of the charges., Respondent No.1, MHADA, granted lease of land bearing cluster plot/house numbers 641 to 720, totaling 80 plots, admeasuring 2 793.12 sq m, including a tit‑bit plot area of 942.10 sq m, total 3 735.22 sq m, located at C.T.S. No. 1 (part), Adarsh Nagar, Jogeshwari (West), Mumbai 400., Respondent No.1 constructed eight chawls (Nos. 65 to 72), each with ten tenements, and allotted them to economically weaker persons who formed a Co‑operative Housing Society (Petitioner No.1). On 1 June 1987, MHADA granted the plot on lease to Petitioner No.1 for thirty years, which later expired. The tenements became dilapidated, prompting the society to redevelop the land and appoint Petitioner No.2 as developer., The petitioners gave a portion of the land to the Mumbai Metropolitan Region Development Authority (MMRDA) for Metro Line 2A. Petitioner No.2 executed a second development agreement dated 27 November 2020 with Petitioner No.1. Under the consent terms, MMRDA agreed to pay infrastructure charges to Respondent No.1 as per Regulation 33(5) of the Development Control Regulations, amounting to approximately Rs 46 crore. Respondent No.1 then issued a No Objection Certificate for redevelopment under Regulation 33(5) of the DCPR 2034, vide letter dated 23 June 2021. On 6 June 2021, Respondent No.3 (Building Permission Cell of MHADA) demanded various amounts, including development charges of Rs 12,71,09,700, from the petitioners., Respondent No.3 issued a revised Intimation of Approval (IOA) on 23 July 2021 imposing Condition B‑2, requiring the petitioners to pay all charges demanded by Respondents 1 to 3. The petitioners, by notice dated 10 March 2022, called upon Respondents 1 to 3 to withdraw the demand notices. No reply was received, leading to the present writ petition., Mr. M. M. Vashi, senior counsel for the petitioners, adopted Dr. Milind Sathe’s submissions in WP 1334 of 2019 and added that, with effect from 23 July 2021, MHADA became the Planning Authority and retained total control of the land. He highlighted that Respondent No.3’s affidavit (dated 27 May 2022) admits that Respondent No.1 is the owner of the land., It is also admitted that the tenements were allotted to the petitioner‑Society under Part‑III of the Maharashtra Housing and Area Development (Estate Management, Sale, Transfer and Exchange of Tenements) Regulations, 1981. Respondent No.1 granted a lease to the society on 27 June 2011; the land beneath the chawls is leased to the society and the eight chawls were conveyed to it, making the society the owner of the eight chawls., Learned senior counsel submitted that MHADA did not apply for redevelopment. The stand that exemption can be granted only if the land is developed by MHADA itself contradicts the plain reading of Section 124F. Section 124A must be read with Section 124F., The senior counsel relied on a Government Circular dated 16 March 2021, stating that the State of Maharashtra admits the land is owned by MHADA and that MHADA will issue a No Objection Certificate only after receiving a redevelopment proposal from the co‑operative society or developer. MHADA has no control over the redevelopment process but is a party to the tripartite agreement and retains control over the entire land., Since land belonging to MHADA is exempt from development charges under Section 124F, the land vested in and under control of MHADA is fully exempt. No demand for development charges can be raised against the petitioners. The lease deed makes clear that MHADA remains the owner and the petitioners have only leasehold rights., Learned counsel for Respondent No.1 adopted the submissions of Advocate General Kumbhakoni in WP 9673 of 2022., Facts in Writ Petition (L) No. 704 of 2022: The petitioners challenged a demand notice for development charges dated 30 December 2021. Respondent No.1 is MHADA; Respondents 3 and 4 are the co‑operative housing societies. Respondent No.1 owns Building No. 14 (first building) on Survey No. 106A, C.T.S. No. 195 (part), D.N. Nagar, Andheri, Mumbai Suburban District, measuring about 1 235.73 sq m, and Building No. 6/1 to 6/10 (second building) on the same plot measuring 330.92 sq m., On 14 February 1997, the allottees of the first building formed Respondent No.3 Society. On 26 November 1997, Respondent No.1 sold and conveyed the first building to Respondent No.3 and granted a 99‑year lease of the first plot commencing 1 April 1980. In January 1999, Respondent No.3 applied to the Municipal Corporation for additional construction of ten tenements on the first plot; the corporation granted an occupation certificate on 29 August 2003, bringing the society’s membership to 70., On 4 June 2003, the allottees of the second building formed Respondent No.4 Society. On 19 July 2010, Respondent No.1 sold and conveyed the second building to Respondent No.4 and granted a 30‑year lease of the second plot commencing 27 April 2007., On 23 May 2018, the Government of Maharashtra notified MHADA as the Planning Authority for the area. On 22 November 2020, Respondent No.4 appointed the petitioner as developer for redevelopment of the second building; on 6 December 2020, Respondent No.3 appointed the petitioner as developer for the first building., On 24 December 2020, Respondent No.4 entered into a development agreement with the petitioners for the second building and plot; on 7 July 2021, Respondent No.3 entered into a development agreement for the first building and plot. On 18 June 2021, the petitioners requested a No Objection Certificate for additional built‑up area. On 18 August 2021, Respondent No.1 issued its offer letter for redevelopment; the petitioners paid the requisite amount for the NOC and Intimation of Approval. No development charges were levied., On 18 November 2021, Respondent No.1 demanded Rs 4,27,900 as scrutiny fees for concession, which the petitioners paid. Respondent No.3 requested issuance of an NOC after payment of the fees. On 6 December 2021, Respondent No.1 accorded approval to the concession. The petitioners submitted redevelopment plans and on 30 December 2021, Respondent No.2 demanded development charges of Rs 4,06,31,850 and Rs 2,36,700 for a welfare centre. The petitioners filed this petition on 7 January 2022; the court admitted the writ petition on 25 January 2022 and granted interim relief staying recovery of development charges., Mr. Pravin Samdani, senior counsel for the petitioners, relied on the definition of “land” under Section 2(14), “local authority” under Section 2(15), “owner” under Section 2(18), “rule” under Section 2(29) and on Sections 44, 124A and 124F of the MRTP Act, submitting that the definition of local authority includes MHADA., He submitted that under Section 44, every person intending to carry out development on any land, except the Central Government, State Government or Local Authority, must make an application to the Planning Authority. The Central Government, State Government or Local Authority is exempt from making such an application. Under Section 124A, the Planning or Development Authority is obligated to levy development charges on any institution of use or change of use of land or building for which an application is required. Consequently, development charges cannot be levied against the Central or State Government or Local Authority. Section 124A levies charges on any person who institutes or changes the use of land or undertakes development., He argued that the MRTP Act is a comprehensive scheme and its provisions must be read together, particularly Sections 44(1), 124A and 124F. Section 124F provides exemption not to the person undertaking change but to the land or building that is vested in, under control of, or possessed by the Central or State Government or Local Authority. If the legislature intended otherwise, it would have expressly provided such exemption., He submitted that the petitioner is a lessee of MHADA, which is both the local authority and the owner of the property, and that MHADA has been charging premium to the petitioners.
id_1351	7	The petitioners have paid a premium of Rupees 3,61,30,000 and have been paying annual rent. Learned senior counsel relied upon clause 2(i) of the Indenture of Lease dated 19 July 2010 entered into between the Maharashtra Housing and Area Development Authority and Respondent No.4‑Society. He submitted that under the lease deed there was a prohibition on the respondents from assigning, sub‑letting, under‑letting or otherwise transferring any part of the land, its interest or the benefit of the lease to any person, or changing the user of the land, without the prior written permission of the Maharashtra Housing and Area Development Authority., Learned senior counsel placed reliance on Section 2(m) of the lease deed and submitted that Respondent No.4‑Society is prohibited from using a Floor Space Index greater than that provided in the clause without prior permission of the Maharashtra Housing and Area Development Authority. He further submitted that the lease deed imposes control by the Maharashtra Housing and Area Development Authority over the land, requiring prior permission for use of Floor Space Index, enhanced lease rent, redevelopment and reconstruction. The Maharashtra Housing and Area Development Authority allowed development by a letter of offer dated 18 August 2021 and levied approximately Rupees 14.26 crore for permission to use the Floor Space Index., Learned senior counsel relied on the expression “control” as defined in Black’s Law Dictionary, meaning direct or indirect power or authority to manage. He also cited the Law Lexicon, where “control” is defined as power to check or restrain, superintendence, management, regulation, governance, or to keep under restraint., Learned senior counsel relied on the following judgments of the Supreme Court of India: (i) Nagar Palika Nigam v. Krishi Upaj Mandi Samiti & Ors. (2008); (ii) Sri Nasiruddin v. State Transport Appellate Tribunal (1975); (iii) Hyderabad Asbestos Cement Products & Anr. v. Union of India & Ors. (2000) 1 SCC 426; and (iv) Sri Jeyaram Educational Trust & Ors. v. A.G. Syed Mohideen & Ors. (2010) 2 SCC 513., It was submitted by learned senior counsel that the authorities cannot be allowed to add words to Section 124F or to distort the plain language of the provision. He argued that the exemption under Section 124F is not the exemption granted under sub‑section (2) or sub‑section (3) of the provision, which is conferred by issuing a notification., Submissions of Mr. Deshmukh, learned counsel for Respondent No.1 – the Maharashtra Housing and Area Development Authority – in Writ Petition (Civil) No. 704 of 2022 were noted., Learned counsel for Respondent No.1 adopted the submissions of Mr. Kumbhakoni, Advocate General, in Writ Petition (Civil) No. 9673 of 2022., By this petition filed under Article 226 of the Constitution of India, the petitioners pray for a declaration that the provisions of Development Control Regulation 33(5)(5) are illegal, void and unconstitutional. They also pray for a refund of the amount of Rupees 73,08,178 collected by the respondents from the petitioners. Further, they seek a declaration that the respondents are not entitled to levy or demand any development charges from the petitioners in view of the exemption provided under Section 124F of the Maharashtra Regional and Town Planning Act., The respondent No.3 – the Maharashtra Housing and Area Development Authority – is the owner of the writ land bearing numbers 3 to 6 at the J.V.P.D. Scheme, measuring 1,398 square metres and identified as CTS Nos. 195/139, 195/140, 195/170 and 195/169. The Ideal Co‑operative Housing Society was granted a lease on 10 July 1973 for the said writ land for a term of 99 years, for the construction of tenements for the use and occupation of its members. The petitioners state that the society subsequently purchased an additional area measuring 178.56 square metres from the Maharashtra Housing and Area Development Authority., The society handed over an area measuring 114.06 square metres to the Municipal Corporation for the widening of Gulmohor Road. The construction of the building was completed around 1976 and is now in a dilapidated condition. The society passed a resolution at its Special General Meeting on 7 December 2014 and selected Petitioner No.1 as the developer to redevelop the property. The Maharashtra Housing and Area Development Authority issued a No Objection Certificate to the society on 11 December 2014 for this selection. Consequently, the society executed a development agreement with Petitioner No.1 on 31 October 2015, which is duly registered., On 7 November 2015, Respondent No.3 – the Maharashtra Housing and Area Development Authority – issued an offer letter for redeveloping the property up to a Floor Space Index of three, subject to payment of Off‑site Infrastructure Charges. The petitioners paid a portion of the amount demanded by the Maharashtra Housing and Area Development Authority for these charges. On 11 May 2016, the Maharashtra Housing and Area Development Authority issued a No Objection Certificate for the redevelopment. On 22 June 2016, Respondent No.2 raised a demand for various charges, including development charges of Rupees 3,60,62,000, as a condition precedent for granting further permissions, sanctions, and approvals for the development project., Petitioner No.1 is carrying out development under Regulation 33(5) of the Development Control Rules, 1991. On 4 August 2016, the petitioners filed this petition, inter alia, praying for various reliefs. Learned counsel for the petitioners drew the Court’s attention to several exhibits and adopted the submissions made by Dr. Sathe, learned senior counsel for the petitioners, in Writ Petition No. 1334 of 2019., The Maharashtra Housing and Area Development Authority opposed this petition on various grounds by filing an affidavit in reply and making several oral arguments. The Advocate General also made various submissions in this matter, including those of Mr. Kumbhakoni, Advocate General for Respondent No.1 – the State., Mr. Kumbhakoni, Advocate General for Respondent No.1 – the State – reiterated the submissions he made in Writ Petition (Civil) No. 9673 of [year not specified]., We have heard the learned counsel for the parties at length and have given careful consideration to the rival submissions. The following questions fell for the consideration of the Bombay High Court in this batch of petitions:\n\ni) Whether Section 124F of the Maharashtra Regional and Town Planning Act has any ambiguity, and if so, whether this Court is required to make a purposive interpretation of the provision to render it workable and avoid any absurd result;\n\nii) Whether any benefit under Section 124F can be claimed by a third party carrying out redevelopment on a plot owned by the Central Government, State Government, or any local authority;\n\niii) Whether the expression “vested in or under control or possession of the Central Government or State Government or the Local Authority” is disjunctive or should be read as “and”;\n\niv) Whether exemption under Section 124F can be availed only by the Central Government, State Government, or the Local Authority itself undertaking redevelopment or change of use of land for its own purposes;\n\nv) Whether the development charges prescribed under Section 124A of the Maharashtra Regional and Town Planning Act are in the nature of fees or tax, and if they are tax, whether collection thereof by the respondents under Article 265 of the Constitution of India is with or without authority of law;\n\nvi) Whether the Central Government, State Government, or the Local Authority is under any obligation to apply for permission under Sections 43 or 44 of the Maharashtra Regional and Town Planning Act read with the Development Control Regulation, 1991 and Maharashtra Development Plan Rules if redevelopment is being carried out by a third party on the land owned by them;\n\nvii) Whether levy of the development charges under Section 124A(2) of the Maharashtra Regional and Town Planning Act is person‑centric or property‑centric;\n\nviii) Whether the levy of the development charges prescribed under Section 124A of the Maharashtra Regional and Town Planning Act is in the public interest and for the purpose of obtaining the development fund under Section 124J, and how that fund is to be utilized., Some of the relevant provisions relied upon by the learned counsel for the parties are as follows:\n\n(7) “Development”, with its grammatical variations, means the carrying out of building, engineering, mining or other operations in, over or under land, or the making of any material change in any building or land, or in the use of any building or land, including any material or structural change in any heritage building or its precinct, demolition of any existing building, structure or erection, reclamation, redevelopment, layout and subdivision of any land; and “to develop” shall be construed accordingly.\n\n(15) “Local authority” means (a) the Bombay Municipal Corporation constituted under the Bombay Municipal Corporation Act, the Nagpur Municipal Corporation constituted under the City of Nagpur Corporation Act, 1948, or any municipal corporation constituted under the Bombay Provincial Municipal Corporations Act, 1949.\n\n(19) “Planning Authority” means a local authority and includes (a) a Special Planning Authority constituted, appointed or deemed to have been appointed under Section 40, and (b) in respect of a slum rehabilitation area declared under Section 3C of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971, the Slum Rehabilitation Authority appointed under Section 3A of that Act., Section 22 of the Maharashtra Regional and Town Planning Act, “Contents of Development Plan (m)”, provides for permission to be granted for controlling and regulating the use and development of land within the jurisdiction of a local authority, including the imposition of fees, charges and premiums at rates fixed by the State Government or the Planning Authority. Such permission may be required for the grant of an additional Floor Space Index, for special permissions, or for the exercise of discretionary powers under the relevant Development Control Regulations. The provision also allows for conditions and restrictions regarding open space around buildings, the percentage of building area for a plot, location, number, size, height, number of storeys and character of buildings, population density, uses and purposes of buildings or land, subdivision of plots, discontinuance of objectionable users of land, parking and loading spaces, and the size of projections, advertisement signs and boardings, as may be necessary to achieve the objects of the Act., Section 124A(1) provides that, subject to the provisions of the Maharashtra Regional and Town Planning Act, the Planning Authority or the Development Authority (collectively, “the Authority”) shall levy, within its jurisdiction, a development charge on the institution of use or change of use of any land or building, or on the development of any land or building, for which permission is required under the Act, at the rates specified therein. Where land appurtenant to a building is used for a purpose independent of the building, the development charge may be levied separately for the building and the land., Section 124F(1) states that no development charge shall be levied on the institution of use, change of use, or development of any land or building vested in, or under the control or possession of, the Central Government, State Government, or any local authority., Section 124G(1) provides that any person aggrieved by an order passed by the Authority under Section 124E may prefer an appeal to the State Government or to an officer appointed by the State Government, not below the rank of Deputy Secretary, and the appeal must be made in the manner and with the fees prescribed., Section 43 provides that after the date on which a declaration of intention to prepare a development plan for any area is published in the Official Gazette, or after a notification designating any undeveloped area as a notified area or a site for a new town is published, no person shall institute or change the use of any land or carry out any development of land without the written permission of the Planning Authority. However, permission is not required for (i) works for maintenance, improvement or alteration that affect only the interior of a building or do not materially affect the external appearance, except in the case of a heritage building or precinct; (ii) works complying with any order or direction made by any authority under any law; (iii) works carried out by any authority exercising its powers under any law; (iv) works by the Central or State Government or any local authority required for maintenance or improvement of highways, roads or public streets, or for inspection, repair or renewal of drains, sewers, mains, pipes, cables, telephone or other apparatus; (v) excavation in the ordinary course of agricultural operation; (vi) construction of a road intended to give access to land solely for agricultural purposes; (vii) normal temporary use of land for other purposes; (viii) occasional use of land for a purpose other than its normal use; and (ix) use incidental to human habitation of any building or land attached to such building., Section 44(1) states that, except as otherwise provided by rules, any person who is not the Central Government, State Government or a local authority and intends to carry out any development on land must make a written application to the Planning Authority for permission, in the prescribed form and containing the required particulars and documents. However, no permission is required for the demolition of an existing structure, erection or building, or part thereof, in compliance with a statutory notice from a Planning Authority, the Housing and Area Development Board, the Bombay Repairs and Reconstruction Board, or the Bombay Slum Improvement Board established under the Maharashtra Housing and Area Development Act, 1976., Section 45(1) provides that upon receipt of an application under Section 44, the Planning Authority may, subject to the provisions of the Act, by written order: (i) grant permission unconditionally; (ii) grant permission subject to general or special conditions it may impose with prior approval of the State Government; or (iii) refuse permission., Rule 4 of the Development Control Regulation, 1991, provides that no person shall erect or re‑erect a building, alter any building, or carry out any development or redevelopment on any plot or land, or cause the same to be done, without first obtaining separate development permission and a commencement certificate from the Commissioner., The procedure for obtaining development permission and a commencement certificate requires that every person intending to carry out a development or redevelopment, erect or re‑erect a building, or alter any building or part thereof, give a written notice of intention to the Commissioner in the form prescribed in Appendix X, accompanied by plans and statements in the number of copies required by the regulations., Additional Floor Space Index may be allowed in certain categories. For development or redevelopment of housing by the Maharashtra Housing and Area Development Authority, the Floor Space Index for a newly constructed tenements scheme of low‑cost housing, where at least 60 percent of the tenements are for Economically Weaker Sections (EWS) and Low Income Group (LIG), shall be allowed to be increased by 20 percent over the normally permissible Floor Space Index. For the purpose of calculating the Floor Space Index, the entire area of the layout shall be considered, and under‑utilised Floor Space Index of the EWS and LIG scheme areas may be utilised for Higher Income Group (HIG), Middle Income Group (MIG) and other amenities in the scheme. Sub‑division of plots will be permissible on the basis of compulsory open spaces as prescribed in the regulations.
id_1351	8	Reconstruction and redevelopment of cessed buildings in the Island City by Co‑operative Housing Societies or of old buildings belonging to the Brihanmumbai Municipal Corporation: For reconstruction or redevelopment to be undertaken by Co‑operative Housing Societies of existing tenants or by Co‑operative Housing Societies of landlords and/or occupiers of a cessed building of ‘A’ category in Island City, which attracts the provisions of the Maharashtra Housing and Area Development Authority Act, 1976, and for reconstruction or redevelopment of the buildings of the Corporation constructed prior to 1910, the floor space index shall be 2.5 on the gross plot area or the FSI required for rehabilitation of existing tenants plus incentive FSI as specified in Appendix III, whichever is higher. Provided, however, that with the prior approval of the Government, the Maharashtra Housing and Area Development Authority or the Corporation shall be eligible to obtain additional incentive FSI over the otherwise permissible FSI as specified in Annexure III of these Regulations. The same FSI shall be available in cases of composite redevelopment schemes for plots having both ‘A’ and ‘B’ category cessed buildings, and also where buildings declared unsafe by the Brihanmumbai Housing and Development Board prior to the monsoon of 1997 are reconstructed, irrespective of the category of the cessed building. For reconstruction or redevelopment undertaken by proposed Co‑operative Housing Societies of landlords and/or occupiers of a cessed building of ‘B’ category, where composite development is undertaken by different owners of five or more plots, the FSI required for rehabilitation of existing tenants plus incentive FSI as specified in Appendix III will be available., Development permission and commencement certificate: (1) Necessity of obtaining permission – No person shall erect, re‑erect, alter or carry out any development or redevelopment on any plot of land without first obtaining development permission and a commencement certificate from the Commissioner. (2) Items of operational construction excluded – Construction for operational purposes, including maintenance of operational structures and emergency or essential staff quarters, by certain organisations, authorities or departments may be exempted from the purview of these Regulations, except for provisions relating to floor space index and fire precautions. The exempted entities include Railways, National Highways, National Waterways, major ports, aerodromes and airports, posts and telegraphs, telephones, television, wireless, broadcasting authorities, regional electricity grids, defence authorities, any other essential public services notified by the State Government, the Metropolitan Railway Authority or Project Implementing Agency designated for Metro Rail and Monorail/Light Rail Transit projects, and facilities and services of the Municipal Corporation of Greater Mumbai such as roads, water supply, sewerage, storm water disposal and other essential public services as decided by the Municipal Commissioner. All such constructions must still conform to the prescribed requirements for essential services, water‑supply connections, drains, etc., to the satisfaction of the Commissioner., Operational constructions excluded: The following constructions for operational purposes of the organisations listed above are exempted from the Regulations except for floor space index and fire precautions: (i) Repairs and renovation of existing installations of buildings used solely for operational purposes that do not involve addition to or increase of built‑up areas. (ii) In the case of the Railways/Metro Rail and Monorail/Light Rail Transit Authority: repairs and renovation of existing railway tracks, culverts, over‑bridges, under‑passes, tunnels and side drains; platforms, goods sheds, offices, parcel offices, sub‑stations, foot‑over bridges, turn‑tables, lifting towers, gantries, signal boxes or control cabins; running sheds, carriage and wagon depots, carriage washing places, water tanks, pipelines, pumping stations, running rooms, train examiner offices, yard depots, permanent way and signal inspectors’ stores, and all overhead electric equipment for traction; operational control centres, training rooms, stabling yards, maintenance workshops, auxiliary rail vehicle buildings, under‑floor wheel lathe and blow‑down plant, cooling towers, generator areas, auxiliary substations, traction substations, transformer areas, water‑treatment plants, wastewater‑treatment plants, depots, control centres, sump areas, parking check posts, loading and unloading areas, fouling points, diesel‑generator set rooms, Metro and Monorail stations (underground and elevated), ducts, tunnels, ventilation shafts, entry/exit blocks, passages, underground passages to station boxes, lifts, staircases, escalators and air‑handling units. (iii) Store sheds ancillary to operational requirements only. For construction of new railway lines or tracks, approval of the State Government shall be necessary; for new buildings, goods stores, sheds, platforms, parcel offices or workshops, or for major remodelling, approval of the Commissioner shall be necessary. Further, constructions such as residential, commercial, office or industrial buildings (other than gate lodges and essential staff quarters), roads, drains, hospitals, clubs, institutes and schools in colonies of the listed organisations shall not be deemed operational for the purpose of exemption., Exclusion from requirement of permissions: No permission shall be required to carry out tenantable repair works to existing buildings that were constructed with the approval of the competent authority or that have existed since before 17‑04‑1964 for residential structures and 01‑04‑1962 for non‑residential structures, as described under section 342 of the Maharashtra Municipal Corporations Act, 1888. No permission shall be required for the provision of safety grills to windows or ventilators, nor for repairs to the existing consumer, distribution or receiving sub‑station of the Brihanmumbai Electric Supply and Transport. However, any addition or alteration shall require the Commissioner’s approval. No permission shall be required for installation of solar panels whose base is at a height of 1.8 m from the terrace, provided structural stability is certified by a licensed structural engineer. No permission shall be required for internal lightweight partitions or cabins up to a height of 2.2 m in commercial buildings, subject to structural stability certification by a licensed structural engineer. Further internal lightweight partitions or cabins up to floor height will be permissible if they satisfy criteria for light and ventilation and other regulatory requirements, certified by an architect, licensed surveyor or town planner, fire‑safety requirements certified by a fire‑safety consultant, and structural stability certified by a licensed structural engineer., Procedure for obtaining Development Permission and Commencement Certificate: (1) Notice of intention – Every person who intends to carry out development or redevelopment, erect or re‑erect a building or alter any building or part of a building shall give notice in writing to the Commissioner of his intention in the form prescribed in Appendix II, accompanied by plans and statements in the number of copies required by sub‑regulations (2) and (3). The plans may be ordinary prints; one set shall be retained in the Commissioner’s office for record after the issue of permission or refusal. The Commissioner may set a policy whereby all submissions, approvals and communications regarding development permission shall be online. (2) Copies of plans and statements – The notice shall be accompanied by as many copies of plans as the Commissioner may prescribe after considering clearances required from other agencies. The size of drawing sheets shall be any of those specified in Table 1. (5) Processing of the development permission application – The Commissioner may sanction or refuse to sanction the plans and specifications, or may sanction them with modifications or directions as he deems necessary, and shall communicate his decision to the applicant in the formats specified in Annexure 11 and 12., Admitted facts from Writ Petition No. 1334 of 2019: The respondent, Brihanmumbai Municipal Corporation, is the owner of the writ property. The Corporation had already developed a portion of the writ land by constructing ten chawls of ground plus one upper floor, tenements therein occupied by 194 tenants of the Corporation. The Corporation is also a planning authority under the provisions of the Maharashtra Regional and Town Planning Act and collects development charges under Chapter VI A of that Act. The petitioner society granted redevelopment rights in respect of the writ property to petitioner 2, which proposed to undertake redevelopment under Regulation 33(7) of the Development Control Regulations, 1991. Petitioner 2 is constructing a composite Building Rehabilitation Component (three wings) and a free‑sale component on Plot B of the land. The Corporation issued an Intimation of Disapproval (IOD) granting its sanction for redevelopment, stipulating that development charges must be paid prior to the issuance of a commencement certificate. Various sanctions were granted to the petitioners for redevelopment under a modified Regulation 33(7) of the Municipal property as a planning authority. In the Letter of Intent (LOI) issued by the Corporation, it was stated that the Corporation owned both plots, that redevelopment charges had been collected by petitioner 1, and that subdivision of both plots would be determined by the City Surveyor before obtaining NOC for construction of the saleable building. The LOI also required the petitioner to submit a Property Card in the name of the Brihanmumbai Municipal Corporation after approval of separate city survey numbers. The LOI specified the total area permitted for development, the construction area required for rehabilitation of existing residents, and the promotional area. It required the petitioner to pay various charges to the planning authority. The LOI further provided that the developer would submit the division or consolidation of the plots before approval of building layouts, that the land would be leased to petitioner 1 for an initial period of thirty years from the date of the commencement certificate, and that the lease could be renewed for a further thirty years at the discretion of the Corporation, with an annual rent of a minimum Rs 1,000 at the rate of Rs 1 per square metre. Clause 7 of the LOI required tenants who were not members of the Cooperative Housing Society to become members before receiving Appendix‑2, and made it the society’s responsibility to arrange accommodation for municipal tenants in a transition camp at its own cost during construction. The LOI stated that raising funds for the reconstruction or redevelopment scheme would be the society’s responsibility; the Corporation would not provide any loan or assistance. Although the residential flats for present tenants were to have a minimum carpet area of 300 sq ft, there was no limit on the area of flats in the saleable component. The society would pull down the old buildings at its own cost and arrange transit camps for affected tenants. Clause 29(E) required the society, after completion of the rehabilitation building, to allot each member a flat on an ownership basis as per Appendix‑2 prepared by the Assistant Commissioner (Property) / Assistant Commissioner (F/South) Division. Clause 29(F)(13) made it binding to submit an indemnity bond giving the Corporation rights to any surcharge, claim, damages or other rights. The same clause required the petitioner society to transfer 25 % of the construction area of the total land reserved for public purpose, in the form of flats, to the Corporation. Clause 29(F)(22) provided that, as per Sections 44/69 of the Maharashtra Regional and Town Planning Act, 1966, and Section 124A of that Act, any other fees would be payable by the developer/applicant seeking permission. None of these conditions in the LOI have been challenged by the petitioners, and the charges payable under the LOI have been paid from time to time. The name of the Corporation was also included in the Property Card as owner. In the revised LOI dated 17 February 2020, the Corporation granted the permissible FSI under Regulation 33(7) for the redevelopment, and again agreed that the plot would be leased to the society for an initial thirty‑year term, renewable for a further thirty years at the Corporation’s discretion. The revised LOI reiterated that development charges and any other charges under Section 124A of the Maharashtra Regional and Town Planning Act, 1966, would be applicable to any developer seeking permission. The petitioners have paid all such charges and now pray for a refund. They have been granted the benefit of a larger FSI for redevelopment under Regulation 33(7) and are permitted to construct three wings for the free‑sale component in Building 1 on Plot A and Building 2 on Plot B. The petitioners applied for permission from the Corporation for redevelopment under Regulation 33(7) of the DCR, 1991; the Corporation itself did not make any application for redevelopment of the writ land., Legal analysis: The question is whether the Corporation, being the owner of the land, was required to make an application for permission for development under Section 44 of the Maharashtra Regional and Town Planning Act read with the provisions of the Development Control Regulations, 1991, the Development Control and Promotion Regulations, 2034, or the Maharashtra Development Plan Rules, 1970. Section 2(9A) of the MRTP Act defines \development right\ and Section 2(15) defines \local authority\; the Corporation is the local authority constituted under the Maharashtra Municipal Corporations Act within the meaning of Section 2(15). Section 43 of the MRTP Act restricts development of land after the declaration of intention to prepare a Development Plan, unless written permission is obtained from the planning authority. Section 22(m) of the MRTP Act empowers the State Government or the Planning Authority to fix fees, charges and premiums for various permissions and for granting additional floor space index. Regulation 4(1) of the DCR provides that no person shall erect, re‑erect, alter or carry out any development or redevelopment without first obtaining development permission and a commencement certificate from the Commissioner. Regulation 4(2) lists exemptions for operational constructions, except for floor space index and fire precautions. Every application for permission under Section 44 must be made in Form‑I of the Maharashtra Development Plan Rules, 1970. Regulation 9 of Part II of the DCR, 1991 sets out general planning requirements, land uses and manner of development, and Regulation 5 prescribes the procedure for development permission and commencement certificate. The second proviso to Regulation 4 clarifies that residential, commercial, office and industrial buildings, roads, drains, hospitals, clubs, institutes and schools in colonies of the exempted organisations are not deemed operational for exemption purposes. Section 58 of the MRTP Act requires a government department intending to develop land to give written notice to the Planning Authority, which may raise objections. Rule 14 of the Maharashtra Development Plan Rules, 1970 prescribes the documents and plans required for such government‑initiated development. Section 58(4) of the DCR, 1991 states that Sections 44, 45 and 47 shall not apply, and Section 46 shall apply mutatis mutandis, to developments carried out under that section. The Statement of Objects and Reasons for inserting Sections 124A to 124L into the MRTP Act indicates that the State Government intended to levy, assess and recover development charges to fund planned urban development. Section 124F(2) provides exemption from development charges when the Central Government, State Government or Local Authority itself undertakes the activity or when development is for its own benefit. The courts have held that the term \vested in\ does not equate to ownership and that the levy under Section 124A is person‑centric, not property‑centric. Consequently, when a private developer undertakes redevelopment on land owned by the Government or a local authority, the developer must obtain the requisite permissions and pay the applicable development charges, unless a specific exemption under Section 124F applies, which it does not in the present facts.
id_1351	9	Section 22(m) of the Maharashtra Regional and Town Planning Act provides as to what a Development plan shall generally indicate. Regulation 4 of the Development Control Regulations, 1991 excludes construction for operational purposes, including maintenance of operational structures, by the organisations, authorities or departments specifically mentioned therein, whether temporary or permanent, may be exempted by the special permission of the Commissioner in each case from the purview of these Regulations, except those relating to floor space index and fire precautions. Even the said provision clearly provides that all such constructions shall, however, conform to the satisfaction of the Commissioner. A perusal of Regulation 3 of the Development Control Regulations, 1991 also clearly indicates that the provision provides for exclusion of certain construction by exemption from the purview of these Regulations, except those relating to floor space index and fire precautions. The proviso to those Regulations clearly provides that various constructions including residential buildings specifically mentioned therein shall not be deemed to be operational for the purpose of exemption under the said Regulation., Regulation 5 of the Development Control Regulations, 1991 clearly provides that every person who intends to carry out a development or redevelopment, erect or re‑erect a building or alter any building or part of a building shall give a notice in writing to the Commissioner of his intention in the form in Appendix X, and such notice shall be accompanied by plans and statements with the sufficient number of copies as required by sub‑Regulations (2) and (3) thereunder., It is thus clear that no person shall erect or re‑erect a building without first obtaining development permission and a commencement certificate from the Commissioner. In our view, the permission for carrying out construction of residential buildings is excluded from the purview of the said Regulation, which are called operational constructions, and therefore an application for development or permission from the Commissioner or the authority is required. Sub‑rule (2) of Regulation 4 provides that such exemption is by special permission of the Commissioner in each case, except those relating to floor space index and fire precautions. Consequently, residential buildings shall not be entitled to exemption even if they are constructed by the authorities specified in Regulation 4 of the Development Control Regulations, 1991. Thus, permission under Sections 43 and 44 of the Maharashtra Regional and Town Planning Act shall be necessary for construction of residential buildings by every person, including the Maharashtra Housing and Area Development Authority, the Municipal Corporation or any other local authority governed by the Development Control Regulations or the provisions of the Maharashtra Regional and Town Planning Act., Section 58 of the Maharashtra Regional and Town Planning Act makes a provision relating to development to be undertaken on behalf of the Government. When the Government intends to carry out development of any land for the purpose of any of its departments, offices or authorities, the officer in charge thereof must inform in writing the Planning Authority of the Government’s intention, give full particulars, and accompany the notice with such documents and plans as may be prescribed, at least thirty days before undertaking such development., The Planning Authority is empowered to raise an objection to the proposed development on the ground that the development is not in conformity with the provisions of any development plan under preparation, any building bye‑laws in force, or any other material consideration. The Planning Authority has the power to approve the proposals made by the Government, with or without modifications, or to direct the officer to make such modifications as it considers necessary., Rule 14 of the Maharashtra Development Plan Rules, 1970 provides for development to be undertaken on behalf of the Government and specifies how an application for such development is to be made, including the documents and plans to be accompanied with the intimation of the Government’s intention to develop any land for its purpose., We are inclined to accept the submission of Mister Walawalkar, learned senior counsel for the Municipal Corporation, that even in the case of development to be made or undertaken on any land by the Municipal Corporation itself, it has a Building Proposal (Special Cell) department where the plans and other relevant particulars are to be submitted to the Municipal Corporation, and the development is to proceed after the plans are duly sanctioned. The purpose of such control over every development within the jurisdiction of the Municipal Corporation is to carry out planned development., A perusal of Sections 100 and 101 of the Maharashtra Housing and Area Development Authority Act also clearly indicates that the provisions emphasize the role of the Municipal Corporation as a Planning Authority and the Commissioner in matters of construction or reconstruction proposals undertaken by the Maharashtra Housing and Area Development Authority under Chapter VIII of that Act. The procedure prescribed requires giving notice and obtaining permission for a building to be repaired or reconstructed by the Authority. The Maharashtra Housing and Area Development Authority is required to obtain necessary permission from the Planning Authority in the prescribed manner. Such notice must be accompanied by plans and other relevant documents and information. The Municipal Commissioner is empowered to raise an objection or suggestion which he may deem fit with reference to the proposed work to be undertaken by the Authority., Insofar as the words 'vested in or under the control or possession of the Central or State Government or of any local authority' in Section 124F are concerned, the High Court of India will have to ascertain their meaning from the context in which they are used. The State Government, Central Government or Planning Authority has no control at all over the land leased out by them to the petitioners‑societies or any other body, nor over the building constructed thereon. Learned senior counsel for the petitioners could not point out how the State Government, Central Government or the Planning Authority, which owned any of these lands, would have control over the buildings allowed to be constructed by these owners, developers or societies, as the case may be., The physical possession of these properties is also with the lessees, tenants or occupants who are allowed to occupy the buildings owned by the State Government, Central Government, the local authority or any Planning Authority. The ownership of the buildings constructed by the developers or societies would vest in the occupants or the societies, and not in the owners of the lands., It is the case of the petitioners that the lands which were either vested in or under the control or possession of the State Government or any local authority, and which are allowed to be redeveloped, do not require an application for seeking permission under Sections 43 and 44 of the Maharashtra Regional and Town Planning Act read with the Rules. Section 124F has to be read with Sections 124A, 43, 44 and with the provisions of the Development Control Regulations and the Maharashtra Development Plan Rules. Even if the lands are on lease by the Central Government, State Government or any public body in favour of tenants, societies or individuals, and permission is granted in favour of the developer, societies or individuals, such authorities or the Government do not become owners of the structures constructed thereon. Such developers, societies or individuals apply for permission for redevelopment under various beneficial schemes provided under the provisions of the Development Control Regulations, 1991 or the Development Control and Planning Regulations, 2034 for gain., In our view, learned counsel for the respondent authorities are right in their submission that the existing buildings owned by the State Government, Central Government or local authorities, which are permitted to be demolished and redeveloped, result in new buildings that would not vest in such authorities nor be under their control. The buildings owned by the allottees are in the possession and control of the allottees., We shall now decide the issue as to whether any part of Section 124 of the Maharashtra Regional and Town Planning Act is ambiguous and whether the benefit thereof shall be given to the petitioners or must be construed in favour of the revenue. Learned counsel appearing for the parties have relied upon several judgments on this aspect, which shall be dealt with by us in the later part of this judgment., The Supreme Court, in the case of M/S Hyderabad Asbestos Cement Products & Anr., on the interpretation of provisos (i) and (ii) to Rule 56‑A of the Central Excise Rules, 1944, held that they have to be read conjointly. The requirement of both provisos must be satisfied to avail the benefit. Clauses (a) and (b) of proviso (ii) are separated by the use of ‘or’, and the availability of one of the two alternatives would suffice. The Court held that the language of the rule is plain and simple and does not admit any doubt in terms of interpretation., The Supreme Court considered the limited fact that the cement and asbestos fibre used by the appellants in the manufacture of their finished excisable goods are liable to duty under different tariff items and that the benefit of pro‑forma credit extended by Rule 56A could not be availed of by the appellants, and was rightly denied by the Department authorities. With these facts, the Supreme Court held that the provision does not admit any doubt in terms of interpretation. In our view, the judgment is clearly distinguishable on the facts., The petitioners argue that the words ‘vested in or under the control or possession of the Central and State Government or of any local authority’ should be read disjunctively; in that event, even if the Central or State Government or any local authority is a licencee, tenant or in unauthorized occupation, and if such land is required to be developed by the owner, landlord or appropriate authority, it should be exempted from the payment of development charges. In our view, the interpretation sought by the petitioners, that those words be read disjunctively, is ex‑facie contrary to the legislative intent and the objects and reasons for enacting Chapter VI‑A of the Maharashtra Regional and Town Planning Act., The Supreme Court, in M/s Achal Industries vs. State of Karnataka, referred to the judgment in Commissioner of Customs (Import) Mumbai vs. Dilip Kumar and Company and Others, and interpreted the expression ‘total turnover’ for the purpose of identification and classification of dealers for prescribing various rates or slabs of tax levied on the dealer. When read with provisos (i) and (ii) to Section 6‑B(1), this makes the legislature’s intention clear and unambiguous that, except for the deductions provided under proviso (i) to Section 6‑B(1), nothing else can be deducted from the total turnover as defined under Section 2(u‑2) for the purpose of levying turnover tax under Section 6‑B of the Act., The judgment relied upon by the learned senior counsel for the petitioners does not advance their case and is distinguishable on the facts. The provisions considered by the Supreme Court in that judgment were totally different. The Supreme Court in that case had dismissed a civil appeal filed by the assessee., The Supreme Court, in the case of Orissa Warehousing Corporation, referred to the judgment in Keshavji Ravji & Co. Etc. vs. Commissioner of Income Tax, 1990 SCC (2) 231, in which it was held that as long as there is no ambiguity in the statutory language, resorting to any interpretative process to unfold the legislative intent becomes impermissible. The need for interpretation arises when the words used in the statute are, on their own terms, ambivalent and do not manifest the legislature’s intention. There is no dispute about the principles laid down by the Supreme Court in that judgment. In our view, that judgment would not advance the petitioners’ case, given the ambiguity under Section 124(F) of the Maharashtra Regional and Town Planning Act. The Court must ascertain the legislative intent of the Government that enacted and inserted Chapter VI‑A in the provisions of the Act. The arguments advanced by the learned senior counsel for the petitioners are ex‑facie contrary to the legislative intent of the State Government while enacting those provisions., The Supreme Court, in District Magistrate, Haridwar and Another, held that as long as there is no statutory sanction for the imposition of a tax, no liability for paying a fee can be imposed relying on alleged consent or acquiescence to such imposition. The development charges are payable in this case under Section 124A of the Maharashtra Regional and Town Planning Act by the parties seeking permission under Sections 43 and 44 read with the Development Control Regulations. The judgment of the Supreme Court in District Magistrate, Haridwar and Another does not apply even remotely to the facts of this case., The Supreme Court, in Ahmedabad Urban Development Authority, held that in a fiscal matter it is not appropriate to hold that, even in the absence of an express provision, a delegated authority can impose a tax or a fee. Such power of imposition of tax or fee by a delegated authority must be very specific, and there is no scope for implied authority to impose such a tax or fee. In this case, the petitioners do not claim that the demand for development charges made by the respondents is made by exercising delegated authority to recover a tax or fee. Therefore, the judgment in Ahmedabad Urban Development Authority does not advance the petitioners’ case., The High Court of India, in Buildarch, Mumbai and Another, considered whether Regulation 32(2)(C) of the Development Control Regulations can empower the Commissioner to charge a premium for granting special permission to exclude areas from computation of floor space index, among other issues. The facts and provisions considered in that judgment are totally different and are therefore distinguishable on facts., The Supreme Court judgment in Fruit and Vegetable Merchants Union, Subzi Mandi, Delhi, relied upon by Dr Sathe, learned senior counsel for the petitioners in Writ Petition No. 1334 of 2019, was distinguished by Mr Chinoy, learned senior counsel for the Municipal Corporation. He drew attention to paragraph (11) of that judgment, submitting that after construing the expression ‘vesting’, the Supreme Court held that the vesting of such property is only for the purpose of executing an improvement scheme undertaken by the authority, and not to confer a complete title. The term ‘vesting’ has a variety of meanings that must be gathered from the context in which it is used; it may mean full ownership, only possession for a particular purpose, or empowering the authority to deal with the property as an agent of another person or authority., The learned senior counsel for the Corporation also drew our attention to paragraph (14) of that judgment, submitting that after interpreting the provisions, the Supreme Court held that the provisions were made for the purpose of accounting between the different branches of the Trust activities. Particular reliance was placed upon the words ‘and such property shall thereupon vest in the Chief Commissioner.’ The Supreme Court held that the word ‘vest’ has several meanings depending on the context in which it is used. The counsel also relied upon observations made by Lord Cranworth in Richardson v. Robertson (1862) 6 L.T. 75, which were cited by the Supreme Court in that judgment., The learned senior counsel submitted that the word ‘vest’ is at least of ambiguous import. Prima facie, ‘vesting’ in possession is the more natural meaning. The expressions ‘investiture’, ‘clothing’ and other explanations of the word’s origin point prima facie rather to enjoyment than to the obtaining of a right. Long usage of ‘vesting’ ordinarily means having obtained an absolute and indefeasible right, as distinguished from not having obtained it. It is held that it cannot be disputed that the word ‘vesting’ may mean, and often does mean, its primary etymological signification, namely, vesting in possession., The learned senior counsel submitted that the word ‘vest’ is of variable import, as shown by provisions of Indian statutes. The legislature has made it clear that the vesting of property is not for any limited purpose or duration. Thus, the word ‘vest’ does not have a fixed connotation in all cases where property is owned by a person or authority. It may vest in title, in possession, or in a limited sense, as indicated by the context in which it is used in a particular piece of legislation., We are inclined to accept the submission made by Mr Chinoy, learned senior counsel for the Corporation, that the words ‘vested in or under control or possession of the Central or State Government or of any local authority’ cannot be read disjunctively. The expression ‘or’ must be read as ‘and’. The Supreme Court judgment in Fruit and Vegetable Merchants Union, Subzi Mandi, Delhi, relied upon by Dr Sathe, learned senior counsel for the petitioners, would assist the case of the Municipal Corporation and not the petitioners., The High Court of India thus will have to interpret the words ‘vested in or under control or possession of the Central or State Government or any of the local authorities’ who are exempted from the payment of development charges, after considering the legislative intent and the objects and purpose of enactment of such provisions., The judgments of the Supreme Court in Whirlpool Corporation and Radhakrishnan Industries, relied upon by learned senior counsel for the petitioners in support of the submission that powers 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, are not in dispute. The Supreme Court in those judgments held that an alternate remedy by itself does not divest the High Court of its powers under Article 226 in an appropriate case, although ordinarily a writ petition should not be entertained when an efficacious alternate remedy is provided by law. There is no dispute about the proposition of law laid down by the Supreme Court in those two judgments., The Supreme Court, in Shahed Kamal, relied upon by Dr Sathe, learned senior counsel for the petitioners in support of his submission that the word ‘or’ in Section 124F of the Maharashtra Regional and Town Planning Act is disjunctive, considered a provision not in pari materia with Section 124F, and therefore would not be a precedent in the facts of this case., The Supreme Court judgment in Commercial Tax Officer, West Bengal, relied upon by Dr Sathe, learned counsel for the petitioners, is also distinguishable on the facts. The Supreme Court in that judgment construed Section 5 of the Bengal Finance (Sales Tax) Act, 1941, a provision totally different from the present matter. Therefore, that judgment does not apply to the petitioners’ case., The Supreme Court, in B. Premanand & Ors., held that the primary principle of statutory interpretation is the literal rule. Other rules, such as the mischief rule or purposive interpretation, may be resorted to only when the plain words of a statute are ambiguous, lead to no intelligible result, or if read literally would nullify the statute’s object. Where the words are absolutely clear and unambiguous, recourse cannot be had to any interpretative principle other than the literal rule. In that judgment, the Supreme Court referred to its earlier decision in Prakash Nath Khanna v. Commissioner of Income Tax, holding that the language employed in a statute is the determinative factor of legislative intent. The legislature is presumed not to have made a mistake; assuming a defect or omission of the words, the Court cannot correct or make up the deficiency. There is no dispute about the proposition of law laid down by the Supreme Court in that judgment., The question that arises for consideration of the High Court of India is whether, if there is ambiguity in Section 124F of the Maharashtra Regional and Town Planning Act and the plain words lead to no intelligible result or, if read liberally, would nullify the statute’s object, the mischief rule or purposive interpretation is permissible. The Supreme Court judgment in B. Premanand & Ors. would assist the respondents’ case and not the petitioners’., The Supreme Court, in Vodafone International Holdings, held that the power to impose tax is essentially a legislative function expressed under Article 265 of the Constitution of India, which states that no tax shall be levied except by authority of law. A subject cannot be taxed without clear words for that purpose, and every Act must be read according to the natural construction of its words. The proper course in construing revenue Acts is to give a fair and reasonable construction to their language without leaning to one side, while keeping in mind that no tax can be imposed without words clearly showing an intention to lay the burden, and that equitable construction of the words is not permissible. There is no dispute about the proposition laid down by the Supreme Court in that judgment., In this case, the petitioners could not demonstrate how the levy of Development Charges under Section 124A of the Maharashtra Regional and Town Planning Act is without authority of law. The petitioners argue that the exemption granted to the State Government, Central Government or any Planning Authority under Section 124F would also apply to applications made by them for carrying out redevelopment of land, i.e., on institution of use, change of use, or development of any land or building vested in or under the control or possession of the Central or State Government or any local authority. The Supreme Court judgment in Vodafone International Holdings therefore does not assist the petitioners’ case., The Supreme Court, in Gursahai Saigal, held that provisions in a taxing statute dealing with machinery for assessment must be construed by the ordinary rules of construction, i.e., in accordance with the clear intention of the legislature to make a charge effective. There is no dispute about the proposition of law laid down by the Supreme Court in that judgment. Those principles apply when there is no ambiguity in the provision, which is then construed by ordinary rules of construction., The High Court of India, in Noshir Shapurji Dhabhar, dealt with Sections 313 and 490 of the Mumbai Municipal Corporation Act and held that charging fees for parking is not covered by Section 313 read with Section 490. The object of Section 313 is to prohibit encroachment and obstruction by placing or depositing upon any street any stall, chair, bench, box, ladder, etc., without permission of the Municipal Commissioner. The provisions construed in that judgment are totally different., The question that fell for consideration of the High Court of India is whether the petitioners, who were carrying out redevelopment on lands owned by the Municipal Corporation, the State Government, the Central Government or the Maharashtra Housing and Area Development Authority, are entitled to claim exemption from payment of Development Charges on the ground that the Central Government, State Government or any Planning Authority are entitled to such exemption. The judgment in Noshir Shapurji Dhabhar does not apply to the petitioners’ case., The Supreme Court, in Jalkal Vibhag Nagar Nigam, considered whether there is any distinction between taxes and fees on lands and buildings under Entry No. 49 of List II. It held that the distinction—that a tax is a compulsory extraction while a fee is a voluntary payment for services rendered—does not hold. The element of a service may not be totally absent in a provision that imposes a tax. Similarly, in the case of a fee, the exaction may not be truly voluntary., The Supreme Court, in Tata Iron and Steel Co., took a similar view. In that judgment, the Court referred to a nine‑judge Constitution Bench decision in Jindal Stainless Ltd. v. State of Haryana (2017) 12 SCC 1, which held that the expression ‘fee’ is also comprehended within the expression ‘tax’ for the purposes of Article 265, and that even for the collection of a fee, authority of law is mandatorily required under the Constitution. The petitioners argue that since the State Government, Central Government or Planning Authorities are exempted from payment of Development Charges under Section 124F of the Maharashtra Regional and Town Planning Act, they, who are carrying out redevelopment on those lands under authority granted by the Central Government, State Government or Planning Authority, are also entitled to the benefit of such exemption., The Division Bench of this Court, in Solapur Promoters & Builders Association, construed the challenge to the constitutional validity of Chapter VI‑A on the ground that the legislature had enacted a provision for the levy of a tax—a tax on development—which was outside the competence of the State Legislature. The Court construed Sections 124A and 124J of the Maharashtra Regional and Town Planning Act in that judgment., The Court, in that judgment, held that the Development Charge levied under Chapter VI‑A is a fee imposed to enable the Authority to provide public amenities within its area and for the maintenance and improvement of the area under its jurisdiction. An institution of use, a change of use, or the development of lands and buildings within the territorial limits of a Planning Authority or Development Authority places demands on civic amenities that the authority is required by law to provide. The contribution towards the Development Charge is therefore related to amenities such as roads, parks, hospitals, water supply, electricity, sewerage and drainage, among other public services prescribed under Section 2(2) of the Maharashtra Regional and Town Planning Act. Accordingly, the Court held that the Development Charge is not a tax but a fee., In our view, the judgment of this Court in Solapur Promoters & Builders Association would assist the case of the respondent Corporation and the Maharashtra Housing and Area Development Authority. The purpose and object of inserting Chapter VI‑A in the Maharashtra Regional and Town Planning Act was to recover Development Charges required to be spent for carrying out development activity that a Planning Authority or Development Authority provides within its jurisdiction, thereby generating a need for resources to fund and maintain the amenities., In our view, when the Central Government, State Government or Planning Authority proposes to carry out development on land owned by them for their own purpose, there is an exemption from payment of Development Charges. Such exemption under Section 124F of the Maharashtra Regional and Town Planning Act cannot be claimed by a third party who proposes to carry out redevelopment on land in possession of, under control of, or vested in the State Government, Central Government or Planning Authority. If the land owned by these authorities is developed by the authorities themselves for their own benefit, the exemption permissible under Section 124F can be claimed by the authorities themselves, not by others proposing redevelopment on such lands for their own benefit., The Supreme Court, in Jaypee Infratech Limited, relied upon by learned counsel for the respondents, held that an interpretation that defeats the scheme, intent and object of the statutory provision must be eschewed, and, if necessary, the principles of purposive interpretation should be applied rather than a literal construction.
id_1351	10	The Supreme Court of India held that looking to the scheme and intent of the provisions in question and applying the principles aforesaid, the Court had no hesitation in accepting the submissions made on behalf of the appellants that the contents of the provision under consideration call for purposive interpretation so as to ensure that the provision operates in sync with the intention of the legislature and achieves the avowed objectives., The Supreme Court of India held that the expression 'or', appearing as disjunctive between the expressions 'corporate debtor' and 'transferee', ought to be read as 'and'; so as to be conjunctive of the two expressions i.e., corporate debtor and transferee. The principles laid down by the Supreme Court of India in the case of Jaypee Infratech Limited (supra) apply to this case. We are respectfully bound by the principles laid down by the Supreme Court of India in the said judgment., In our view, on applying the principles laid down by the Supreme Court of India to the facts of this case, and after considering the Statements of Objects and Reasons and the legislative intent to insert Chapter VI-A in the Maharashtra Regional and Town Planning Act, the object for granting such exemption to the State Government or the Central Government or any Planning Authority, who own the land and propose to carry out the development or redevelopment, as the case may be, for its own purpose, cannot be construed to mean that the developers, who are third parties and propose to carry out the redevelopment with commercial bargain, can also be allowed to claim exemption., The benefits of exemption are made exclusively for the State Government or the Central Government or the Planning Authorities, who seek to carry out development themselves or through a contractor for their own purposes and not for their tenants, who would get permanent alternate accommodation on ownership basis. This Court, thus, is of the opinion that in view of there being an ambiguity in Section 124F of the Maharashtra Regional and Town Planning Act, Section 124F calls for purposive interpretation so as to ensure that the provision operates in sync with the intention of the legislature and achieves the avowed objectives and to avoid any absurd result., In our view, there is no legislative intent while enacting the said Chapter VI-A that a developer or any third party, who seeks to carry out redevelopment on the plot of land owned by any public body or the Government for their personal gain, should also be allowed to claim exemption merely because the land belongs to the Government or the public authority., The Supreme Court of India in the case of Yum! Restaurants (Marketing) Private Limited (supra), while construing a section of the Income Tax Act, held that for grant of exemption from the taxing power of the State, the language must admit no other reasonable construction. Such an intention must be expressed in clear and unmistakable terms, or must appear by necessary implication from the language used. Exemptions are never presumed; the burden is on a claimant to establish clearly his right to exemption, and an alleged grant of exemption would be strictly construed and cannot be made out by inference or implication, but must be beyond reasonable doubt. If an exemption is found to exist, it must not be enlarged by construction., In our view, the onus is on the petitioners, who claim exemption of payment of Development Charges for carrying out redevelopment on the land of the State Government or Central Government or Planning Authorities like Maharashtra Housing and Area Development Authority or Brihanmumbai Municipal Corporation in this case, to prove that they are entitled to claim exemption of payment of Development Charges. Such exemption cannot be granted on the basis of an inference sought to be drawn from the provision granting exemption. The provision granting exemption has to be construed strictly and not by reading between the lines. If the claim of the petitioners for exemption from payment of Development Charges is accepted, it would clearly defeat the purpose, object and legislative intent of the State Government, empowering the Planning Authority to collect Development Charges from the persons seeking permission to develop the lands. The principles laid down by the Supreme Court of India in the case of Yum! Restaurants (Marketing) Private Limited (supra) are clearly applicable to the facts of this case. We are respectfully bound by this judgment., The Supreme Court of India in the case of Vile Parle Kelvani Mandal (supra) has held that in every taxing statute the charging, the computation and exemption provisions at the threshold stage should be interpreted strictly. In case of ambiguity in a charging provision, the benefit necessarily must go in favour of the assessee. This means that the subject of tax, the person liable to pay tax and the rate at which the tax is to be levied have to be interpreted and construed strictly. If there is any ambiguity in any of these three components, no tax can be levied till the ambiguity or defect is removed by the legislature. However, in case of an exemption notification or clause, the exemption is to be allowed based wholly on the language of the notification, and exemption cannot be gathered by necessary implication, or on a construction different from the words used by reference to the object and purpose of granting exemption., It is held that it is for the assessee to show by construction of the exemption clause or notification that it comes within the purview of exemption. The assessee or citizen cannot rely on ambiguity or doubt to claim benefit of exemption. The rationale is not to widen the ambit at the stage of applicability. However, once the hurdle is crossed, the notification is constructed liberally. The Supreme Court of India held that the statutory conditions for grant of exemption can neither be tinkered with nor diluted. The exemption notification must be interpreted by its own wordings, and where the wordings of the notification with regard to the construction are clear, the notification has to be given effect to., It is held that if, on the wording of the notification, benefit is not available, then the Court would not grant benefit by stretching the words of the notification or by adding words to the notification. Purposive interpretation can be given only when there is some ambiguity in the language of the statutory provision or it leads to absurd results. The principles laid down by the Supreme Court of India in the case of Vile Parle Kelvani Mandal (supra) would apply to the facts of this case. If we accept the claim of the petitioner‑Developers and the Society for exemption of the Development Charges, which exemption is only applicable to the State Government or the Central Government or any Planning Authority that develops its own land, it will lead to absurd results, which cannot be permitted in law., The Supreme Court of India in the case of Municipal Commissioner of Dum Dum Municipality (supra) has construed the expressions 'vest' and 'vesting' and has held that these expressions have different shades of meaning as pointed out by the Supreme Court of India in Fruit and Vegetable Merchants Union (supra). The Supreme Court of India in the case of Prof. Yashpal (supra) has held that the word 'or' is normally disjunctive and the word 'and' is normally conjunctive, but at times they are read vice‑versa to give effect to the manifest intentions of the legislature, as disclosed from the context. If literal reading of the word produces an unintelligible or absurd result, it may be read as 'and' instead of 'or'., In our view, the learned Advocate General for the State and Maharashtra Housing and Area Development Authority, Mister Chinoy, Mister Walavalkar and Mister Reis, learned senior counsel for the Municipal Corporation, are right in their submission that the word 'or' between the words 'vested in', 'under control of' and 'in possession of' the Central Government or the State Government or the Local Authority has to be read as 'and' to achieve the legislative intent, purpose and object of enacting Chapter VI-A of the Maharashtra Regional and Town Planning Act., The Supreme Court of India in the case of Municipal Corporation of Hyderabad (supra) has held that the buildings and lands vesting unto the Corporation not only in title, but also in possession were exempted from the obligation imposed by the legislature to levy the property taxes. The buildings and lands which were merely owned by the Corporation but were in actual possession or under the actual use and occupation of persons or bodies other than the Corporation itself are not exempted. It is held that, in order to attract Section 202(1)(c) of the Act under consideration, it must be established that the property satisfies a dual test: the property must not only be owned by the Corporation, but it must also be in occupation of the Corporation itself. In this sense the word 'vesting' has been used. The Supreme Court of India reiterated the principles laid down by it in the case of Fruit and Vegetable Merchants Union (supra). The principles laid down by the Supreme Court of India in the case of Municipal Corporation of Hyderabad apply to the facts of this case. We are respectfully bound by the said principles. For availing of exemption under Section 124F of the Maharashtra Regional and Town Planning Act, all three ingredients i.e., vested in, under the control and possession, must be satisfied., A Division Bench of the Supreme Court of India in the case of Real Gem Buildtech Private Limited (supra) considered the petition seeking a declaration that the imposition of Development Charges under Section 124A of the Maharashtra Regional and Town Planning Act in respect of additional floor space index availed under Regulation 33(24) and fungible floor space index under Regulation 35(4) of the Development Control Regulations on the said property was illegal and ultra vires of the Act and the Constitution of India. This Court, after considering the Statement of Objects and Reasons of the amendment by which Section 124A was brought into the statute book, held that the legislature found that plans and schemes undertaken by the Planning Authorities are capital intensive and that it has not been possible for these Authorities to achieve the desired results, mainly because of lack of funds for effective implementation of such development plans or town planning schemes., It is held that it had become imperative to mobilise additional resources for being placed at the disposal of Planning or Special Planning or the Development Authority constituted under the Maharashtra Regional and Town Planning Act for effective implementation of the provisions of the Act and to provide proper amenities and facilities for the healthy growth of these cities and towns. It is held that levy under Section 124A is mandatorily to be levied by the Planning Authority on any development carried out in the area of its jurisdiction for which permission is required under the Act. The principles laid down by this Court in the judgment in the case of Real Gem Buildtech Private Limited (supra) apply to the facts of this case. We are respectfully bound by the said judgment. We do not propose to take a different view in the matter., The Supreme Court of India in the case of Hira Singh & Anr. v. Union of India & Anr., reported in (2020) 20 Supreme Court Cases 272, has held that the burden of proof to establish entitlement of exemption from payment of tax lies upon the person claiming exemption. The Supreme Court, after adverting to the judgment in the case of Dilip Kumar & Co. (supra) and several other judgments, has held that to wind up the legislative intent, it is permissible for the Courts to take into account the ostensible purpose and object and the real legislative intent. Otherwise, a bare mechanical interpretation of the words and application of the legislative intent devoid of concept of purpose and object will render the legislature inane., It is held that in given circumstances, it is permissible for the Courts to have functional approaches and look into the legislative intention and sometimes it may be even necessary to go behind the words and enactment and take other factors into consideration to give effect to the legislative intention and to the purpose and spirit of the enactment so that no absurdity or practical inconvenience may result and the legislative exercise and its scope and object may not become futile. The principles laid down by the Supreme Court of India in the said judgment apply to the facts of this case. We are respectfully bound by the said judgment., The Supreme Court of India in the case of Kotak Mahindra Bank Limited v. Kew Precision Parts Private Limited & Ors., reported in 2022 Supreme Court Cases Online Supreme Court 978, while construing the provisions of the Insolvency and Bankruptcy Code, 2016, has held that the legislature in its wisdom chose not to make the provisions of the Limitation Act verbatim applicable to proceedings in the National Company Law Tribunal/National Company Law Appellate Tribunal, but consciously used the words 'as far as may be'. The words 'as far as may be' are not meant to be otiose. Those words are to be understood in the sense in which they best harmonise with the subject matter of the legislation and the object which the legislature has in view. The Courts would not give an interpretation to those words which would frustrate the purposes of making the Limitation Act applicable to proceedings in the National Company Law Tribunal/National Company Law Appellate Tribunal as far as may be., The Supreme Court of India held that the use of the words 'as far as may be', occurring in Section 238A of the Insolvency and Bankruptcy Code, tones down the rigour of the words 'shall' in the said section, which is normally considered as mandatory. The expression 'as far as may be' is indicative of the fact that all or any of the provisions of the Limitation Act may not apply to the proceedings before the Adjudicating Authority (National Company Law Tribunal) or the Appellate Authority (National Company Law Appellate Tribunal), if they are patently inconsistent with some provisions of the Insolvency and Bankruptcy Code. At the same time, the words 'as far as may be' cannot be construed as a total exclusion of the requirements of the basic principles of Section 14 of the Limitation Act, but permit a wider, more liberal, contextual and purposive interpretation by necessary modification, which is in harmony with the principles of the said Section. The principles laid down by the Supreme Court of India in the said case would apply to the facts of this case., We are inclined to accept the submission made by learned counsel for the respondents that purposive interpretation is warranted for the provisions of Section 124F of the Maharashtra Regional and Town Planning Act. The benefit of ambiguity in all taxing provisions has to be given to the assessee in case of a charging provision, whereas in case of exemption, the benefit of ambiguity goes to the revenue. A perusal of the provisions of Chapter VI-A indicates that under the said provision, a fee is imposed to provide public amenities within its area and for the maintenance and improvement of the area under its jurisdiction and the same is in aid of the regulatory powers. The Development Charge allows the Authority to generate a need for resources to fund and maintain the amenities. In our view, Section 124F has to be read ejusdem generis with the remaining part of Section 124F, vesting, control, possession as well as, in view of the fact that the exemption is only granted for the development undertaken by the Central or the State Government or Local Authorities and not by private parties. Otherwise, it would fail the test of intelligible differentia having a nexus to the object sought to be achieved., We have perused the Development Agreement brought on record in some of the matters, which made it clear that the development of land is undertaken by the petitioners independently of any Local Authority and on their own accord on the property of the Authority. The petitioners are not appointed by the respondents as contractors and developers. The petitioners, therefore, cannot be allowed to contend that the development or redevelopment is on behalf of or for the exempted category. In our view, since the development is by a private party and not by or on behalf of the Authority, the exemption for Development Charges is not applicable. It cannot be held that the property vests in the public authority only because they have title to it, when control and possession are not with the Authority., So far as the judgment of the Supreme Court of India in the case of Shamrao Vithal Co-operative Bank Limited (supra) relied upon by Mister Samdani, learned senior counsel for the petitioner in Writ Petition (L) No. 704 of 2022 is concerned, the Supreme Court of India has held that the word 'control' is synonymous with superintendence, management, to restrain, to check, to regulate and to govern. The control is exercised by a superior authority in exercise of supervisory power. In our view, the reliance placed by learned senior counsel on the said judgment is misplaced. The Supreme Court of India has considered the issue whether under Administrative Law, exercise of control is different from adjudication of dispute, which is a judicial or quasi‑judicial function., Similarly, the Supreme Court of India in the case of Regional Provident Fund Commissioner (supra), relied upon by Mister Samdani, learned senior counsel, has held that the State Government has the power of superintendence, authority to direct, restrict or regulate the working of the educational institutions. In that context, the Supreme Court of India interpreted the word 'control'. It is not the case of the petitioners that the redevelopment undertaken by the petitioners is under control of the State Government or the Central Government or the Municipal Corporation or Maharashtra Housing and Area Development Authority. The said judgment also would not advance the case of the petitioners., The Supreme Court of India in the case of Corporation of City of Nagpur, Civil Lanes (supra) has held that the term 'control' has a very wide connotation and amplitude and includes a large variety of powers, which are incidental or consequential to achieve the powers vested in the authority concerned. The Supreme Court of India considered the powers of the Municipal Commissioner to suspend an employee pending the departmental inquiry. The facts before the Supreme Court of India in the said case were totally different and that judgment is distinguishable on facts., The Supreme Court of India in the case of Collector of Central Excise, Bombay I (supra) has held that when two views of a notification are possible, it should be construed in favour of the subject as a notification is part of a fiscal enactment. In this case, it is not the case of the petitioners that there is any ambiguity in Section 124A, which is a charging section for recovery of Development Charges. The judgment of the Supreme Court of India in the case of Collector of Central Excise, Bombay would not apply to the case of the petitioners., The Supreme Court of India in the case of Wood Papers Limited (supra), relied upon by Mister Samdani, learned senior counsel for the petitioners, has held that once an exception or exemption becomes applicable, no rule or principle requires it to be construed strictly. Truly, liberal and strict construction of an exemption provision is to be invoked at different stages of interpreting it. It is also held in the judgment that when the question is whether a subject falls in the notification or in the exemption clause, then, being an exception, it is to be construed strictly and against the subject, but once ambiguity or doubt about applicability is lifted and the subject fails in the notification, then full play should be given to it and it calls for a wider and liberal construction., The Supreme Court of India in the case of Gujarat Industrial Development Corporation (supra), relied upon by Mister Samdani, learned senior counsel for the petitioners, has held that when the object is such that an interpretation which would preserve it should be accepted, even if the provision is capable of more than one interpretation. That principle of interpretation is very much applicable to fiscal statutes also. In our view, this judgment would assist the case of the respondents and not the case of the petitioners. The legislative intent, object and purpose of the enactment of Section 124F for granting exemption from payment of Development Charges to the Authorities has to be resolved and cannot be tinkered with by extending such exemption to a third party., In our view, there is no substance in the submission of Dr. Sathe, learned senior counsel for the petitioners that levy of Development Charges on the subject property defeats the mandate of Section 124A or the same is without authority of law. Merely because the Letter of Intent has been granted by the Municipal Corporation as Planning Authority in favour of the petitioners for redevelopment, it would not fall within the parameters of exempted entitlement under Section 124F of the Mumbai Municipal Corporation Act. In a given case, the Planning Authority may be an owner of the land in question and sometimes, the Planning Authority under the provisions of the Maharashtra Regional and Town Planning Act, being under two heads., Dr. Sathe, learned senior counsel appearing for the petitioners in Writ Petition No. 1334 of 2019 does not dispute that even in the Letter of Intent issued by the Municipal Corporation, it was clearly provided that the Development Charges, if any, would be payable by the petitioners. The petitioners had been paying the Development Charges in the past., In our view, there is no substance in the submission of the learned senior counsel for the petitioners that the Municipal Corporation has added any words into Section 124F of the Maharashtra Regional and Town Planning Act. Respondent No.2 – Corporation only intends construing the words 'vested in' as enjoyment or use. The term 'control' or 'possession' does not make any reference to title nor relation to ownership. The provision does not contemplate development done by others., Insofar as the additional submissions of Mister Vashi, learned senior counsel for the petitioners in Writ Petition No. 8126 of 2022 are concerned, it is not in dispute that Maharashtra Housing and Area Development Authority has become Planning Authority with effect from 23/07/2021 in respect of the land which is the subject matter of the said writ petition. Respondent No.1 – MHADA had granted land on lease to the petitioner‑Society. Various chawls/structures were thereafter constructed. Admittedly, in that case, MHADA did not make any application for redevelopment. In that matter also, MHADA has acted in dual capacity i.e., one as owner and another as Planning Authority. Learned senior counsel for the petitioners could not demonstrate that all the three conditions prescribed under Section 124F of the Maharashtra Regional and Town Planning Act were satisfied by the petitioners for availing the exemption., Insofar as the additional submissions of Mister Samdani, learned senior counsel for the petitioners are concerned, based on Clause 2 of the Indenture of Lease dated 19/07/2010 entered into between MHADA and Respondent No.4 – Society, that there is control of MHADA over the property, is totally untenable. In our view, even if the said land of MHADA is redeveloped by the petitioners or Respondent No.4 – Society, there is no transfer of land or any part thereof in favour of the petitioners or Respondent No.4 – Society. MHADA has not raised any objection to the redevelopment being carried out by the petitioners., In our view, there is no substance in the submission of Mister Samdani, learned senior counsel for the petitioners that under the said Lease Deed, there is a control of MHADA on the said land, in view of the fact that prior permission of MHADA is required for use of Floor Space Index and for various other purposes. Merely because MHADA has allowed the development and has levied Rs. 14.26 crores approximately for permission to use Floor Space Index would not advance the case of the petitioners that exemption from payment of Development Charges available to MHADA can also be automatically available to the petitioners. The dictionary meaning of 'control' defined in various dictionaries relied upon by learned senior counsel is misplaced. The petitioners are claiming exemption through the respondents., Insofar as the additional submissions made by Mister Godbole, learned counsel for the petitioners in Writ Petition No. 9673 of 2022 is concerned, we have already dealt with the issue whether the word 'or' in Section 124F of the Maharashtra Regional and Town Planning Act is disjunctive or not. The definitions of the words 'owner' and 'occupier' under the provisions of the Maharashtra Rent Control Act, by learned counsel for the petitioners, are misplaced., We have already dealt with in the earlier paragraphs the powers of the State Government to grant partial exemption from payment of Development Charges for the development being carried out by the specific Authorities for specific purpose. The said provision would also clearly indicate that the provision does not provide that even if the development or redevelopment is sought to be carried out by a third party on the land owned by the Governments or Local Authority, exemption from payment of Development Charges granted to the Governments or Local Authority would be availed of by the third parties or they would be entitled to such exemption., There is no substance in the submission of Mister Godbole, learned counsel for the petitioners that the respondents have failed to consider the relevant provisions of the Maharashtra Regional and Town Planning Act whilst issuing the impugned demand notice dated 21/03/2022. Learned counsel for the petitioners could not convince this Court as to how the imposed Development Charges are without authority of law or dehors the statute., Insofar as the additional submission of Mister Kadam in Writ Petition No. 2193 of 2022 is concerned, it is an admitted position that the Municipal Corporation is the owner/lessor in respect of the writ land, which was granted on lease in the year 1937 for 99 years and which is to be renewed on 11/08/2048. The petitioners in the case at hand had submitted a proposal under Regulation 33(7) of the Development Control and Planning Regulations 2034., So far as the submission of learned counsel that Development Charges cannot be imposed in respect of redevelopment of leasehold land is concerned, in our view, this submission is totally untenable. There is no such distinction made in Section 124A of the Maharashtra Regional and Town Planning Act that a leasehold plot cannot be developed or that no Development Charges would be required to be paid for carrying out development or redevelopment by a third party on a leasehold plot. The lease in this case was admittedly for 99 years in the year 1937 and has to be renewed again on 11/08/2048., In our view, there is no substance in the submissions made by Mister Kadam, learned counsel for the petitioners that the definition of the word 'development' under Section 2(7) of the Maharashtra Regional and Town Planning Act, then prevailing in the year 1992, did not include the words 'demolition of the structures' and 'erection of new building' and thus it was the clear intention of the legislature not to bring demolition of the structure and erection of new building within the ambit of Section 124A of the Maharashtra Regional and Town Planning Act. If the building is required to be redeveloped, it cannot be done unless the existing structures are demolished. The argument advanced by learned counsel for the petitioners is contrary to Section 124A of the Maharashtra Regional and Town Planning Act. The definition of the expression 'development' includes redevelopment., Though some of the petitioners have challenged the levy under other heads, we have not dealt with the challenge to the levies under other heads, except Development Charges. The petitioners would be at liberty to make additional submissions in respect of other levies, if challenged in any of these petitions, separately by filing appropriate applications., In our view, there is no merit in any of these petitions. We accordingly pass the following order: (a) Writ petitions are dismissed. (b) Rule is discharged. (c) In view of dismissal of the above writ petitions, interim applications pending, if any, are also dismissed. (d) Ad‑interim relief granted by this Court to continue for a period of four weeks from today. (e) No order as to costs. (f) Parties to act on the authenticated copy of this order.
id_1353	0	Phool Singh, Appellant, versus the State of Madhya Pradesh, Respondent. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 05.09.2019 passed by the High Court of Madhya Pradesh at Indore in Criminal Appeal No. 875/2000, by which the High Court dismissed the appeal preferred by the appellant-accused and confirmed the judgment and order of conviction and sentence dated 31.07.2000 passed by the learned Sessions Judge, Dewas (hereinafter referred to as the learned trial Court) in Session Trial No. 05/2000 convicting the accused for the offence punishable under Section 376 of the Indian Penal Code and sentencing him to undergo seven years rigorous imprisonment with fine of Rs. 500/- with default stipulation, the original accused has preferred the present appeal., As per the prosecution, on the night of 9 August 1999, when the husband of the victim/prosecutrix went to another village, she was alone and sleeping in her room. The accused jumped the wall and entered the room of the prosecutrix. Seeing the accused, the prosecutrix woke up and, in the light of the bulb, identified the accused. The accused then pressed the mouth of the prosecutrix and committed rape and thereafter fled by jumping the wall. According to the prosecutrix, she narrated the incident to her sister‑in‑law (Jethani) and mother‑in‑law, but they did not believe her and, on the contrary, beat her. She also told other family members of her matrimonial house, but no action was taken. She sent the information to her parental house; thereafter her uncle and others came to her matrimonial house, and the prosecutrix told them about the incident. They took her to her parental house. An FIR was lodged on 12.08.1999. She was sent for medical examination. After completion of the investigation, a charge‑sheet was filed against the accused for the offence punishable under Section 376 of the Indian Penal Code. The case was committed to the learned Sessions Court. The accused pleaded not guilty and was tried for the aforesaid offence., In order to prove the charge against the accused, the prosecution examined six witnesses including the doctor who examined the prosecutrix on 12.08.1999, the prosecutrix (Prosecution Witness 3) and the investigating officer (Prosecution Witness 6). One of the witnesses, Rajaram (Prosecution Witness 2), did not support the prosecution story and was declared hostile. The accused pleaded alibi, stating that he had gone to Indore on the day of the incident and was not in the village. He examined the defence witness as Defense Witness 1. The learned trial Court did not believe the plea of alibi and the defence witness, giving cogent reasons. After appreciating the evidence on record, by judgment and order dated 31.07.2000, the learned trial Court convicted the accused for the offence under Section 376 of the Indian Penal Code and sentenced the appellant as mentioned above., Feeling aggrieved and dissatisfied with the judgment and order of conviction and sentence passed by the learned trial Court, the appellant‑accused preferred an appeal before the High Court of Madhya Pradesh at Indore. By the impugned judgment and order, the High Court dismissed the appeal. Hence, the present appeal is at the instance of the accused., Shri Aditya Gaggar, learned Advocate appearing on behalf of the accused, has vehemently submitted that the medical evidence does not support the case of the prosecutrix. He states that the doctor, in her deposition, specifically found no external or internal injuries in the prosecutrix. He further submits that the prosecution case rests solely on the deposition of the prosecutrix, as no other independent witnesses have been examined or supported the case of the prosecutrix. He also submits that there was a delay in lodging the FIR; the incident took place on 9.08.1999 and the FIR was lodged on 12.08.1999, that is, after a period of three days. Consequently, the prosecution story does not find any corroboration from medical evidence and, in the absence of any signs of injuries, it cannot be ruled out that the physical intercourse, even if assumed to have happened, was entirely consensual. He further submits that both the learned trial Court and the High Court have materially erred in not believing Defense Witness 1, who categorically stated that on the date/night of the alleged incident the accused was not in the village and was at Indore along with Defense Witness 1. Making the above submissions, he prays that the present appeal be allowed. In the alternative, he prays that the sentence be reduced to the period already undergone, noting that the accused has undergone two and a half years of the seven‑year sentence, and that the seven years rigorous imprisonment be converted to seven years simple imprisonment., The present appeal is vehemently opposed by Shri Abhay Prakash Sahay, learned Additional Advocate General appearing on behalf of the State. He submits that both the learned trial Court and the High Court have rightly convicted the accused for the offence under Section 376 of the Indian Penal Code, relying upon the sole testimony of the prosecutrix/victim. He states that there is no reason to doubt the credibility and trustworthiness of the prosecutrix and that no question was asked to the prosecutrix while cross‑examining her that a false case was filed against the accused. He relies on the decisions of this Court in Ganesan v. State (2020) 10 SCC 573; Santosh Prasad v. State of Bihar (2020) 3 SCC 443; State of Himachal Pradesh v. Manga Singh (2019) 16 SCC 759; and State (NCT of Delhi) v. Pankaj Chaudhary (2019) 11 SCC., He further submits that in the case of Pankaj Chaudhary, this Court specifically observed that conviction can be sustained on the sole testimony of the prosecutrix if it inspires confidence and that there is no rule of law or practice that the evidence of the prosecutrix cannot be relied upon without corroboration. Regarding the submission on behalf of the accused that the doctor’s deposition showing no external or internal injuries means the prosecution case is not to be believed, he points out that the prosecutrix was medically examined three days after the incident, that she has been consistent in her evidence from the beginning and during cross‑examination, and that the conviction can be sustained even in the absence of any external or internal injuries. He further submits that there is no suggestion in the cross‑examination of the prosecutrix that it was a case of consent. He also notes that the accused’s pleas of consent and alibi are contradictory, and that cogent reasons have been given by the learned trial Court for not believing Defense Witness 1, whose deposition does not inspire any confidence. He prays that the present appeal be dismissed., We have heard the learned counsel for the respective parties at length. We have gone through the judgment and order of conviction passed by the learned trial Court convicting the accused for the offence under Section 376 of the Indian Penal Code and the impugned judgment and order passed by the High Court of Madhya Pradesh at Indore. At the outset, it is required to be noted that the prosecutrix has fully supported the case of the prosecution. She has been consistent from the very beginning, and nothing has been specifically pointed out why her sole testimony should not be believed. Even after thorough cross‑examination, she has stood by what she has stated and has fully supported the prosecution case. We see no reason to doubt the credibility or trustworthiness of the prosecutrix. The submission on behalf of the accused that no other independent witnesses have been examined or that conviction on the basis of the sole testimony of the prosecutrix cannot be sustained has no substance., In Ganesan (supra), this Court observed that there can be a conviction on the sole testimony of the victim/prosecutrix when the deposition is found to be trustworthy, unblemished, credible and of sterling quality. The Court considered a series of judgments on conviction on the sole evidence of the prosecutrix. In Vijay v. State of Madhya Pradesh (2010) 8 SCC 191, the Court held that a woman who is the victim of sexual assault is not an accomplice and her evidence need not be tested with the same amount of suspicion as that of an accomplice. The Court observed that the Evidence Act does not require corroboration of the prosecutrix’s testimony and that, if the prosecutrix is an adult of full understanding, the court may base a conviction on her evidence unless it is shown to be infirm and not trustworthy. In State of Uttar Pradesh v. Pappu (2005) 3 SCC 594, the Court held that even if the girl is of easy virtue, it may not be a ground to absolve the accused; absence of injury may not lead to acquittal, and conviction can be based on the sole testimony of the prosecutrix, with the court seeking other evidence only if it is not satisfied with her version. In State of Punjab v. Gurmit Singh (1996) 2 SCC 384, the Court held that minor contradictions or insignificant discrepancies in the statement of the prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case, and that the evidence of the victim is enough for conviction without corroboration unless there are compelling reasons. The Court also observed that delay in filing FIR for a sexual offence may not be fatal if found natural., The Court further observed in State of Orissa v. Thakara Besra (2002) 9 SCC 86 that rape often destroys the whole personality of the victim and that the testimony of the prosecutrix must be appreciated in the background of the entire case, even if other witnesses were not examined. In State of Himachal Pradesh v. Raghubir Singh (1993) 2 SCC 622, the Court held that there is no legal compulsion to look for other evidence to corroborate the prosecutrix before recording a conviction; evidence has to be weighed, not counted, and conviction can be recorded on the sole testimony if it inspires confidence and there is no circumstance militating against her veracity. Similar views were reiterated in Wahid Khan v. State of Madhya Pradesh (2010) 2 SCC 9 and Rameshwar v. State of Rajasthan (AIR 1952 SC 54)., In Krishan Kumar Malik v. State of Haryana (2011) 7 SCC 130, this Court observed that the solitary evidence of the prosecutrix is sufficient to hold an accused guilty of rape, provided it inspires confidence and is absolutely trustworthy, unblemished and of sterling quality. The Court defined a sterling witness in Rai Sandeep v. State (NCT of Delhi) (2012) 8 SCC 21, stating that such a witness must be of very high quality, with a version that is unassailable, consistent from the initial statement to the final testimony, and able to withstand rigorous cross‑examination, with the version correlating with all other supporting material., In Pankaj Chaudhary (supra), the Court held that, as a general rule, conviction can be based on sole testimony if it is credible, without requiring corroboration, and that the sole testimony of the prosecutrix should not be doubted merely on assumptions. The Court reiterated that there is no rule of law that the evidence of the prosecutrix cannot be relied upon without corroboration, and that corroboration is not a sine qua non for conviction in a rape case, unless the evidence suffers from basic infirmity. The Court also cited State of Rajasthan v. N.K. (2000) 5 SCC 30., In Sham Singh v. State of Haryana (2018) 18 SCC 34, the Court observed that the testimony of the victim is vital and, unless there are compelling reasons necessitating corroboration, courts should not have difficulty acting on the victim’s testimony alone when it inspires confidence and is reliable. Seeking corroboration before relying on such testimony amounts to adding insult to injury. The Court emphasized that courts must examine the broader probabilities of a case and not be swayed by minor contradictions or insignificant discrepancies that are not fatal., Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand, we see no reason to doubt the credibility or trustworthiness of the prosecutrix. She is found to be reliable and trustworthy. Therefore, without any further corroboration, the conviction of the accused relying upon the sole testimony of the prosecutrix can be sustained., The submission on behalf of the accused that, as there were no external or internal injuries found on the body of the prosecutrix, it may be a case of consent, has no substance. No such question was asked, even remotely, to the prosecutrix in her cross‑examination; therefore, the submission is rejected outright., The submission on behalf of the accused that the learned trial Court erred in not believing Defense Witness 1 and erred in not believing the defence and the plea of alibi that on the night of the incident he had gone to Indore and was not present in the village is rejected. Cogent reasons have been given by the learned trial Court for not believing Defense Witness 1, whose deposition does not inspire any confidence. The defence failed to produce hospital records, examine the doctor, or examine the person named Tulsiram, and therefore the plea of alibi is rightly disbelieved., The submission that there was a delay of three days in lodging the FIR is noted. It is the consistent case of the prosecutrix that immediately after the occurrence she narrated the incident to her sister‑in‑law and mother‑in‑law, who did not believe her and beat her. No other family members in her matrimonial home supported her, and she sent a message to her parental house, after which she was taken to her parental house and the FIR was lodged.
id_1353	1	It is very unfortunate that in this case the sister‑in‑law and mother‑in‑law though being women did not support the prosecutrix. On the contrary, she was compelled to go to her parental house and thereafter the First Information Report was lodged. Being women, at least the sister‑in‑law and mother‑in‑law ought to have supported the prosecutrix rather than beating her and not believing the prosecutrix. Therefore, when in such a situation the delay has taken place in lodging the First Information Report, the benefit of such delay cannot be given to the accused who as such was the relative., Now, so far as the prayer on behalf of the accused to reduce the sentence considering the proviso to Section 376 of the Indian Penal Code is concerned, as per Section 376 of the Indian Penal Code pre‑amendment, the minimum punishment shall be seven years. However, as per the proviso, the High Court of India may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years. No exceptional or special reasons are made out to impose the sentence of imprisonment for a term of less than seven years. On the contrary, and in the facts and circumstances of the case, it can be said that the accused has been dealt with lightly by imposing the minimum sentence of seven years rigorous imprisonment only. The victim was the relative. Nobody in the family at the matrimonial home supported her and she suffered the trauma. She was compelled to go to her parental house and thereafter she was able to lodge the First Information Report. The accused has advanced a false plea of alibi, which is not accepted by the lower courts. Under the circumstances, the prayer of the appellant to reduce the sentence and/or to convert the sentence from seven years rigorous imprisonment to seven years simple imprisonment is not accepted and is rejected. In view of the foregoing and for the reasons stated, the present appeal fails and deserves to be dismissed; consequently, it is dismissed. The conviction and sentence awarded to the accused appellant herein for the offence under Section 376 of the Indian Penal Code is hereby confirmed.
id_1354	0	Criminal Appeal No. 66 of 1949, filed by the appellant, was heard by the High Court of Delhi on 1 February 1949. The appellant was convicted under Section 302 of the Indian Penal Code for the murder of Mahatma Gandhi, under Section 120B of the Indian Penal Code for conspiracy, under Section 5 of the Indian Arms Act, and under Section 5 of the Explosive Substances Act. The appellant was sentenced to death, while other accused were sentenced to rigorous imprisonment for two years under Section 302 of the Indian Penal Code and for seven years under Section 5 of the Explosive Substances Act., The trial was conducted at the Red Fort, Delhi, commencing on 27 May 1948. The prosecution presented evidence on 24 June and continued until 8 August. The court heard 149 witnesses, examined 223 pages of documentary exhibits and 72 material exhibits. After a laborious trial of unprecedented length, the court delivered its judgment consisting of 110 printed pages., The conspirators were members of the Hindu Mahasabha and were influenced by the ideology of Vinayak Damodar Savarkar. Nathuram Vinayak Godse, a former member of the Rashtriya Swayamsevak Sangh, and Narayan Apte, a close associate, planned the assassination of Mahatma Gandhi to oppose his policy of appeasement towards Muslims. They formed a group of persons with similar views and began procuring weapons and explosives in early 1947., The procurement of weapons involved the purchase of guns, ammunition, hand‑grenades, cartridges, pistols and fuse wires from a dealer named Badge. On 9 January 1948, Badge supplied the conspirators with two gun‑cotton slabs, two revolvers and five hand‑grenades. The weapons were concealed in a cloth bag and transported to the Hindu Rashtra Office in Dadar, and later to the house of Madan Lal in Poona., On 30 January 1948, the conspirators assembled at the Hindu Mahasabha office in Dadar. Godse, Apte, Karkare and others discussed the final arrangements for the assassination. The plan was to shoot Mahatma Gandhi during his prayer meeting at Birla House on 30 January 1948. The conspirators rehearsed the use of the weapons and finalized the route to the venue., The High Court of Delhi, after considering all the evidence, found that the conspiracy to assassinate Mahatma Gandhi was proved beyond reasonable doubt. Nathuram Godse was convicted under Section 302 of the Indian Penal Code and sentenced to death. Narayan Apte and other co‑accused were convicted under Section 120B of the Indian Penal Code and sentenced to rigorous imprisonment for two years, and under Section 5 of the Explosive Substances Act for seven years., The court expressed its gratitude to the learned Special Judge for conducting the trial with diligence and to the counsel for the Crown for presenting the case effectively. The judgment reflects the seriousness of the offence and the need to uphold the rule of law in the Republic of India.
id_1354	1	Badge accordingly went to a side of a worker of the Hyderabad State Congress, whom he had sold a revolver and gave this to for the revolver and some cartridges. Badge and Shankar left Poona for Bombay with the revolver and four cartridges on 17 January 1948. Shankar got down at Dar and Badge at Borinder Victoria Terminus Station. As soon as Badge crossed the Bombay ticket barrier he met Pt. and Nathuram, who had promised to meet him at the Victoria Terminus Station on the morning of 7 January. After travelling only a few paces Apte suggested that they should collect some funds before proceeding to Delhi. Apte brought a taxi and the three of them – Nathuram, Apte and Badge – proceeded to the Bombay Dyal Singh College where Badge introduced the proprietor Seth Charan Das Mathuradas to Pt. and Nathuram. The conversation lasted for some time and Apte and Badge proceeded to the Hindu Mahasabha office., At the Hindu Mahasabha office, Apte and Badge entered a room on the ground floor where Nathuram and Apte went up and came down after ten minutes. They were then blessed by Tatyarao, who gave them his blessings and wished them success in their enterprise. The party then got into a taxi and proceeded to the Ruia College. In the taxi, Apte said that Tatyarao had predicted that Gandhiji would be over a hundred years old and that their work could be successfully finished. They then proceeded to the house of Afjulpurkar where a discussion took place between Afjulpurkar, Apte and Nathuram about the affairs of Hyderabad State. Afjulpurkar gave a sum of 11,900 rupees to the college., From Afjulpurkar's house the party proceeded to Kurla where they picked up Mr. Patankar and went to the Bombay Railway Station. Patankar introduced Nathuram and Apte to the proprietor of a taxi, who took them to the Bombay Dyal Singh works as arranged. They then proceeded to the Hindu Mahasabha office again, where they were directed to a hall behind the office. There they met Madan Lal, who introduced them to Gopal Nathurav. The party discussed the plan to collect funds and to arrange for the procurement of revolvers and hand‑grenades., Apte, Badge and Shankar then proceeded to the Birla House. At the Birla House they were shown a room where a window with a trellis work was present. Apte pointed out that Mahatma Gandhi and Huseyn Shaheed Suhrawardy used to sit there for prayer. He also showed Badge a window with a revolver and a hand‑grenade. Apte took note of the opening in the trellis work and said that the revolver could be fired and a hand‑grenade could be thrown through that opening. He also mentioned that the window could be used to create an explosion with gun‑cotton slabs and hand‑grenades., The party decided that each member would carry one revolver, one hand‑grenade and one gun‑cotton slab. Madan Lal was to have one gun‑cotton slab and one hand‑grenade; Nathuram, Apte, Gopal and Karkare each were to have one hand‑grenade; Badge was to have one revolver. They also agreed on the clothing to be worn during the operation: Godse would wear a half‑sleeve shirt, stockings and shoes of dark blue colour; Karkare would wear a Gandhi cape and a coat; Gopal would wear a coat and a short shirt; Badge would wear a Nehru shirt and a coat., On 3 January 1948 Badge was arrested at Poona. Gopal was arrested on 5 February, Shankar on 6 February and Karkare on 14 February. On 18 February Dr. Parthasarathy made a confession before the High Court of Bombay, stating that he had been aware that the pistol was required for killing Mahatma Gandhi. On 26 February Apte took certain respectable persons behind the Hindu Mahasabha Bhawan where he said they had taken out a pistol with four bullet cartridges. The pistol and cartridges were taken into possession. The Bombay Public Security Measures Act was invoked on 2 June 1948. Under the provisions of the Indian Penal Code and the Indian Explosive Substances Act, charges were framed against the accused. The Supreme Court of India later granted a pardon to Badge on 21 July 1948 and the evidence was recorded on page 58 of the case file.
id_1354	2	In the year 1947 and ending with the 20th January 1948, the case was based principally on the evidence of Badge, who, as mentioned above, was granted a pardon on 1st June 1948. An accomplice is a competent witness against a prisoner, but he can escape the consequences of his own acts by helping the prosecutor to secure the conviction. It has to be established that the testimony of an accomplice cannot be acted upon unless it is corroborated in material form, unless it is particularly necessary. If the necessary corroboration is unavailable and if the Court is satisfied that the story narrated by him is substantially correct, it is open to the Court to believe one part of his story and another., In the trial, it was observed that it would be impossible, unnecessary and absurd to require corroboration of every part of the accomplice's story. The Court must consider whether there are a number of important facts confirmed, so that the body of the story is correct. The Court should ask itself whether, after hearing the accomplice and other circumstances said to corroborate the story, the accomplice appears to be corroborated by unchallengeable evidence., The kind of corroboration required is not confirmation by independent evidence of everything the accomplice relates, as his evidence would be unnecessary if that were so. What is required is some independent testimony which affects the prisoner by tending to connect him with the crime, that is, evidence directly circumstantial which implicates the prisoner., Badge stated that on 10th January he went to the office of the Hindu Rashtra and promised to deliver two hand grenades to Nathuram and Apte at Bombay. He further stated that on the evening of 14th January he met Nathuram, Apte and Karkare near the office and deposited a bag containing the explosives in the house of Dixitji Maharaj. The prisoners alleged that the bag was handed over to Badge by Apte, Karkare and Madanlal. The prosecution contended that no independent evidence was produced regarding the incident of the bag. The witness on the stand, Gopal, testified that he saw the bag being handed over to Badge on the afternoon of 14th January., Badge's statement that he showed the contents of the bag to the conspirators and that Karkare and Madanlal had left Apte after the demonstration is contradicted by Dixitji Maharaj, who admits having seen only two cotton slabs and two hand grenades on the morning of 15th January. Dixitji Maharaj also states that he did not see the bag being handed over to Karkare., The identification parade held by the Supreme Court of India identified Nathuram, Karkare and Madanlal, but the witness could not positively identify the bag. The witness, a senior official of the Hindu Mahasabha, testified that he saw Badge on the morning of 15th January, but could not recall the exact date of the meeting. The witness's evidence was considered strong corroboration of the testimony of the accomplice., Badge claimed that the prisoners entered into an agreement to assassinate Mahatma Gandhi between 17th and 20th January. The prisoners travelled from Poona to Dadar on 14th January, and later from Bombay to Delhi on 15th January. The witness Angchekar testified that he travelled in the same compartment as Karkare and Madanlal on 15th January and that they discussed a mission involving a revolver and ammunition., The Supreme Court of India considered that the evidence presented, including the statements of Badge, the testimony of Dixitji Maharaj, and the identification parade, provided sufficient corroboration to uphold the conviction.
id_1354	3	It is not a fact that I had gone with Madan Lal to the Golee Market to take meals in the evening of 19 January 1948. It is not a fact that I had gone to the Golee Market to meet on the morning of 20 January 1948., It is not a fact that when I reached the Hindu Mahasabha office on the night of 19 January 1948, Apte rebuked me for having omitted volunteers although he had lent money to me for that purpose. This answer also indicates that the prisoners admit that Bodse came to the Hindu Mahasabha on the night of the 19th., It is not a fact that the discussion that Nathuram Godse had taken place in his room was in regard to a demonstration that was to be held at the prayer ground. It is noted that the discussions were held loudly and that Nathuram Godse had asked us to shift to the bathroom., Badge visited Nathuram and Apte in the Marlin Hotel on the morning of 20 January; it is not for the Supreme Court of India to say that Nathuram and Apte must have been aware of the place at which Badge was staying. Badge states that at about 13:30 on 20 January Apte, Gopal, Badal and Shankar went to the jungle behind the Hindu Mahasabha to try out their revolvers., Gopal took out his revolver but the revolving chamber would not come out. Shankar then took out his revolver, loaded it with four cartridges and tried to shoot at a tree. The shot did not reach the tree but fell down in between. Gopal sent Shankar to the Hindu Mahasabha office to bring a bottle of oil and a pen‑knife. When these articles were brought Gopal started repairing the revolver; three Forest Guards appeared on the scene., Apte and his companion hastily concealed the revolver underneath the chaddar on which they were sitting. One of the Forest Guards came up and enquired as to what they were doing; Gopal spoke to him in Punjabi. The Forest Guard was apparently satisfied and went away., Based on the information given by Badge, the police got in touch with the senior officer Yehar Singh in March 1949. He was taken to identify the persons held on 24 March and identified Gopal, Badge and Shankar as the persons who had been seen on 20 January. The statement of this witness cannot be relied upon because it is difficult to believe that a person who sees another casually for a short time and does not connect it with any unusual incident should be able to identify him after two months., Nain Singh, who is the head bearer of the Marina Hotel, deposes that on a certain day he is unable to remember having served tea to Karkare and Shankar in room No. 40. The hotel registers (Exhibit 9017 and P‑24) show that three ex‑servants served on 20 January. The identification relating to the parade held on 30 March shows that this witness identified Karkare and Shankar along with four persons occupying room No. 40. The statement that refers to Karkare and Shankar as occupants of room No. 40, whereas the real occupants were Nathuram and Apte, detracts considerably from the value of the evidence., Gobind Ram, the bartender of the Marina Hotel, states that he saw Nathuram, Karkare, Gopal and Badal in his hotel three days before the explosion of the bomb on 17 January. He served one peg on the first day and two pegs on the second day. He took the drink to rooms No. 40 and 48. The witness brought back the bottle after it had been washed but both occupants of room No. 40 had left., The fact that the prisoners were in room No. 40 of the Marina Hotel, which has been adequately provided with locks and keys, shows that if the prisoners did not want to take ammunition with them to the Birla House they could have kept it in the Marina Hotel. The prosecution alleges that the ticket shown was from Gwalior to Delhi; the receipt shows that only a Gwalior‑to‑Delhi ticket was shown. The booking clerk from Gwalior and another from Poona to Delhi were recorded., Sundarilal stated before the trial Court that he went to the retiring room at about 10 o’clock on the afternoon of 30 January. He found two persons, Vinayak Rao, Nathuram and Apte, and a third person whom he identified as Karkare. Hari Kishan states that on 29 January Nathuram gave some clothes to be washed within 24 hours and paid Rs 21 to Hari Kishan. Nathuram booked a retiring room at Delhi station under the assumed name of Vinayak Rao on 29 January 1948 and denied that Apte had accompanied him at that time., The prosecution alleges that Apte and Gopal were involved in the assassination of Mahatma Gandhi. The coat belonging to Apte was removed from the person of Madan Lal; it is also stated that the coat formed part of the suit of which the pair of trousers were recovered from Apte. The police recovered the pair of trousers from Apte’s house on 31 January 1948. The coat was taken from Madan Lal’s possession., Badge’s statement that after the arms and ammunition had been distributed to the Marina Hotel on 21 January they decided to take their clothes is recorded. In October 1947 Dr. Chandrashekhar, Professor at Ruia College, Bombay, asked Madan Lal, who was introduced to him, about his financial situation. Madan Lal told Dr. Jain that he was unable to obtain sufficient income from the sale of books and paid another visit to Dr. Jain in December 1947.
id_1354	4	Doctor Jain was approached by Madanlal, who told him that Karkare had formed a party at Ahmednagar that was collecting arms and ammunition. Karkare was said to be keeping a close watch on Madanlal and would not allow him to move about alone. Madanlal confided that he had been entrusted with the task of planting a bomb at a prayer meeting of Mahatma Gandhi in order to create confusion, and that in the resulting confusion Gandhi would be overpowered by members of his own party., Doctor Jain warned Karkare of the perils of following such a dangerous course of action and dissuaded him from his wild talk and plan. He also told Madanlal not to behave like a foolish child and advised him to abandon the plot. Madanlal thanked Doctor Jain for his advice and promised to meet Doctor Jain again, mentioning that he would see his associates at the Rashtriya Swayamsevak Sangh office at Dadar., On 13 January, Angad Singh visited Doctor Jain and asked what Madanlal had said. Doctor Jain explained that the members of Madanlal’s party were collecting arms and ammunition at Ahmednagar and that a bomb had been planted at the Birla House, where it exploded, leading to Madanlal’s arrest. Doctor Jain immediately communicated this information to the Home Minister, to the Prime Minister, and to the Minister of State, Morarji Desai. When Morarji Desai asked why Doctor Jain had not informed the authorities immediately, Doctor Jain replied that refugees often speak wildly and that he had tried to dissuade Madanlal from the plan., The Trial Court examined the depositions of Doctor Jain, Angad Singh, and other witnesses. It found that the statements made by Madanlal about a conspiracy to assassinate Mahatma Gandhi on 9 January 1948 were not corroborated by any independent evidence. The court also noted that live hand grenades recovered from Madanlal’s possession after his arrest were linked to a separate arms‑sale operation and did not prove a plot to kill Gandhi. Consequently, the Trial Court concluded that no conspiracy to assassinate Mahatma Gandhi existed on 9 January 1948., Nathuram Godse, who later admitted that he was opposed to Mahatma Gandhi’s teachings, entered public life in 1942 with the objective of counteracting what he considered harmful to the community. He stated that he had always criticized Gandhi’s methods and had organized demonstrations, but there was no evidence that he participated in any plan to assassinate Gandhi. The partition of India was announced on 3 June 1947 and independence was celebrated on 15 August 1947. It was suggested that any conspiracy could only have arisen after 13 January, when Gandhi announced his fast, and not before that date., The defence was unable to undermine the credibility of Doctor Jain’s testimony, and the court did not reach a definitive conclusion on the authenticity of a letter purportedly written by Karkare to Badge. All six persons involved arrived in Delhi in three separate batches with the stated purpose of staging a peaceful demonstration, but no demonstration took place. The court therefore held that there was no occasion for the alleged conspirators to enter into a conspiracy on 9 January, and the charges related to the alleged assassination plot were dismissed.
id_1354	5	The witness states that the accused kept standing because he wanted his fellow conspirators to perform the parts assigned to them. After he had been arrested he did not request the police to take him to Mahatma Gandhi., Another remarkable coincidence is that when Madanlal was arrested on the afternoon of 20 January he was found wearing a woollen serge coat. This coat is said to belong to Apte. The trial Court observed that Madanlal was not acting in association with Apte and should be found in possession of a coat belonging to Apte., The trial Court admitted that the suit belonged to Apte but he stated that he had handed it over in a hurry to the Chamblit refugee. The coat was removed from Madanlal’s possession. The recovery memo was prepared as soon as the coat was taken into possession., Bhur Singh and Kanhaiyalal were examined before the bag was examined but they were examined after the trousers had been recovered from the possession of Apte. Apte states that those trousers were planted on him. It is his duty to put question to the witnesses of recovery with the object of ascertaining whether the coat recovered from Madanlal was the same as the coat actually produced in court., Daswan Singh testified that the incident occurred in September 1948, long after the bag had come into court. It was within the knowledge of Apte that the coat belonged to him and that it was removed from the person of Madanlal. The witness states that several police officers changed the clothes in the hotel on the afternoon of the arrest., The statement that Madanlal requested to be taken to Mahatma Gandhi has not been substantiated by any independent witness or cross‑examination of persons present at the time of his arrest. Neither Daswan Singh nor Bhur Singh nor Rattan Singh nor any other witness was asked to state whether Madanlal had indeed made a request to speak to Mahatma Gandhi., The prosecution alleges that Madanlal went to the Birla House with the object of staging a demonstration. It is unreasonable to expect that Madanlal would have carried a hand‑grenade on that occasion if his intention was merely to make a peaceful demonstration and bring the grievances of refugees to Mahatma Gandhi., The plan involved obtaining a hand‑grenade and a slab of cotton to be sold to refugees. The conspirators discussed the use of the grenade and the slab, but the plan failed because the intended victim, Mahatma Gandhi, did not sit quietly and the explosion caused a commotion that alerted the authorities., The evidence shows that Nathuram Godse, Gopal Godse, Apte, Karkare and Badge were involved in the conspiracy to assassinate Mahatma Gandhi. Various transactions of money and procurement of revolvers and other arms are detailed, indicating coordination among the accused., The witnesses testified that the conspirators stayed at the Marina Hotel, the Arya Pathik Ashram and other locations in Delhi and Bombay. Their movements between these places, the purchase of weapons, and the planning of the assassination are documented in the recovery memos and hotel registers., The trial Court finds that the recovery of the hand‑grenade and the cotton slab from Madanlal’s possession was genuine and that the conspirators intended to use these items in the assassination of Mahatma Gandhi on 30 January 1948. The plan was not a peaceful demonstration but a pre‑meditated act of murder.
id_1354	6	The second bag belonged to Gopal. That bag was left in a cupboard at the Hindu Mahasabha office before Gopal and his companions went to the Birla House., The identification parade was held on 28 February 1948. Witnesses stated that the bag contained photographs and a hand‑grenade. The prosecution story conflicted with the testimony of the witnesses., Surjit Singh, a taxi driver, testified that he carried Gopal, Karkare and Madanlal from the Connaught Circus to the Birla House on the day of the explosion. His testimony is corroborated by the statements of Lal Dutt, Angchekar, Shanti Parkash and Bhur Singh., Karkare and Madanlal arrived at the Birla House on 20 January 1948, carrying a bag that had been brought from Poona. The bag contained a hand‑grenade and gun‑cotton, which were later used in the explosion., The Supreme Court of India considered the reliability of the identification parade. It held that the parade was conducted improperly because the witnesses had not seen the accused before the parade and the two persons identified were not the perpetrators., The court examined the conspiracy to assassinate Mahatma Gandhi. It found that Karkare, Madanlal, Gopal and others were part of a plan to kill Gandhi, and that the evidence of the hand‑grenade and the bag linked them to the crime., The court concluded that the testimony of the hotel witnesses, including the Sharif Hotel managers, was credible, and that the identification of Gopal at the hotel on 19 January was reliable., The judgment orders that the accused be convicted of conspiracy to murder Mahatma Gandhi and sentenced accordingly.
id_1354	7	On 20th January, the G.L. Cotton's laboratory was exploded by Madan Lal Surjit Singh. The taxi driver in whose vehicle he stated to have travelled was unable to identify him. Chhotu Ram PeWel stated that he was one of the persons who were present at Birla House., The other evidence has been produced against him. The confession of February 1948 speaks for itself. I had known Mr. Nathu Godse since 1939. I had known Mr. Godse in connection with the Hindu Rashtra Dal. I had met him in Poona and had talked with the workers of the Hindu Rashtra Dal., On the night of 27th January 1948, I went to my room and told my son Nilkant to open the door. I offered Mr. Godse and Apte a revolver, which Godse refused. I later went upstairs and slept. On 28th January 1948 I told Nilkant that I would talk to my worker about his requirement., The confession was recorded on 18th February 1948. Major Chhatrey came to the cell accompanied by two other police officers and a person who was a helmsman. He took six sheets of white paper with writing on them and forced the prisoner to sign those sheets without his knowing what was written. The police officials behaved rudely towards the prisoner, who was kept in a cold cell for several days without amenities., The confession was not voluntary. It was obtained under inducement and threat. The magistrate recorded the confession in the presence of the Supreme Court of India. The confession was later retracted on 30th July. The prosecution's case relied heavily on this confession, which was obtained after illegal detention., Witnesses testified that a tonga driver arrived at Gwalior on 28th January 1948. The driver stated that two passengers got down at the railway station and were taken to the house of Dr. Parchure. These passengers were later identified as Nathuram Godse and Apte. The witnesses also stated that the tonga driver saw a revolver being handed over to Dandvate., The witness also recounted that after the assassination of Mahatma Gandhi, the news was received around five o'clock in the afternoon. The witness described the distribution of sweets among those present and the radio broadcast.
id_1354	8	The witness was arrested at 2:30 am on 3 February within a few hours of his having made a statement to the Home Minister of the Gwalior State. He was detained in custody at the police station of Gwalior from 3 February to 11 April. He was taken to Bombay while he was in police custody in the police station at Worli and was kept under the Superintendent and Inspector who had played a part in connection with this case., It is argued with justice that this witness was detained in order that he should state that the police coerced him into making a statement., Kale states that on the evening of 30 January he was in front of the Maratha Boarding House and went to the dispensary. He said that Kale and Kale were talking to each other. Khire also arrived at Dre Parchure. Kale then went to the petrol pump. Kale states that Khire left at that stage. Khire, however, states that Kale left while Dre Parchure and Khire went to the Rajput House where they had a talk with Singh and Jagannath Singh., The fact that Kale is a Government servant and that his brother and sister are the recipients of the bounty of the State, the fact that it is improbable in view of the relations between Dre Parchure on the one hand and Kale on the other, that Kale visited the house of Dre Parchure, the fact that he was arrested on 3 February and kept in detention till 11 March, and the fact that the police extracted an improper confession from Dre Parchure throw a considerable doubt on the veracity of this witness., If his statement is eliminated from consideration there is no corroboration whatsoever of the confession so far. The incident of 28 January is concerned. It is true that Kale was able to identify Nathuram and Apte in an identification parade which was held at Bombay but this fact alone would not show that Kale saw these two prisoners in the house of Dre Parchure in the manner and in the circumstances alleged by him., Both Hethuran and Apte admit having gone to Gwalior and Kale may well have seen them there. The identification by this witness cannot be regarded as a circumstance supporting the confession and what about the evidence of the other witnesses from Gwalior who were examined to corroborate the confession., The revolver has not been produced in court and the explanation that has been given for its non‑production is that Goyel declined to produce the revolver and the only exchange for his pistol. The police visited his house on 3 February 1948 but the pistol was not found., The police were not aware that the pistol which belonged to him was elsewhere. Even if the pistol was taken away it would only prove that the pistol was not at the scene., The confession of Dre Parchure has been induced by threat or coercion and when found to have been obtained it is clearly necessary to treat the statements as fabricated., The Special Court of India held that the evidence on record does not satisfy the requirement of proof beyond reasonable doubt and therefore the convictions of the accused under sections 302 and 120 B of the Indian Penal Code stand affirmed.
id_1354	9	In the first subsection of section 34 of the Indian Penal Code, which defines the offence of conspiracy, the case was assigned to a Special Judge appointed under the Criminal Procedure Code. The Special Judge was empowered to hear the appeal and the questions that arose for decision. The facts presented in the present appeal are drawn from the statements of the appellants and the records of the trial court, as well as from the testimony of the learned Special Judge. The appellant, Nathuram Godse, is the eldest son of his parents and had two brothers. He did not succeed in passing the matriculation examination, but he was a prolific reader of English literature and possessed a remarkable capacity for clear thinking., Nathuram Godse was a staunch advocate of the ideology of the Hindu Mahasabha. He joined the Hindu Mahasabha in 1939 and became closely associated with its leaders, including Nathu Ram Vekaria and Narayan Apte. During the Second World War he received a commission in the Indian Army, but he resigned shortly thereafter. He later worked as an Assistant Technical Recruiter for a brief period. In 1946, Godse and Narayan Apte started a daily Marathi newspaper named \Agraniv\ with the objective of using the vernacular language to propagate the ideology of the Hindu Mahasabha and to oppose the policy of appeasement towards Muslims adopted by the Congress., Godse and Apte later renamed the newspaper \Hindirashtra\ and continued to publish articles describing the atrocities committed against Hindus by Muslim agitators. They also floated a publication called \Hindu Rashtra Parkashan\ and managed its editorial direction. Both Godse and Apte served as managing directors of the publication, which documented the violence inflicted on Hindus across the country. Their writings frequently blamed Muslim leaders for inciting communal unrest and called for a strong Hindu response., In August 1947, Godse, Apte, and their associate Vishnu Karkare began procuring arms and explosives for a planned attack. Initially they dealt only in small arms and ammunition that could be possessed without a licence, but over time they expanded into illicit traffic in firearms and explosives obtained surreptitiously from the Government Arsenal at Kirkee. The procurement was financed by contributions from Hindu sympathisers, including members of the State Congress, who supplied money, arms, and ammunition for use by Hindus on the border areas. Godse and Apte also received financial assistance from Karkare, who helped them acquire the necessary weapons and explosives., On 30 January 1948, Godse attended a prayer meeting at the Birla House in Delhi. The meeting was attended by Mahatma Gandhi, who was seated on the dais. Godse approached the dais with a pistol concealed in his coat. He fired three shots, two of which struck Gandhi, resulting in his instantaneous death. The assailant attempted to escape but was apprehended on the spot. Several witnesses, including Apte and Karkare, were present at the prayer meeting and later testified about the events., Following the assassination, the Supreme Court of India ordered the arrest of the conspirators. Nathuram Godse, Narayan Apte, Vishnu Karkare, and several others were detained and charged under sections of the Indian Penal Code, the Arms Act, and the Explosive Substances Act. The trial proceeded under the jurisdiction of the Special Judge, who examined the evidence of conspiracy, procurement of weapons, and the execution of the murder. The accused were found guilty of murder and conspiracy to murder, and the judgment was delivered after a thorough examination of the prosecution's case and the defence's arguments.
id_1354	10	The offence of criminal conspiracy is defined under Section 120 of the Indian Penal Code. It is punishable under Section 120B when the object of the conspiracy is to commit an offence such as murder, which is covered by Section 302. The conspiracy may also be punishable under Section 109 when the conspirators intend to commit an offence punishable with death or imprisonment for life. The punishment for criminal conspiracy is the same as that for the substantive offence, unless the law provides a lesser punishment., An overt act in furtherance of the conspiracy is required to constitute the offence. This principle has been affirmed in the case of Lord Campbell and in the judgment of Rowland J in the Patna case, where it was held that the agreement alone is not sufficient unless an overt act is proved. The overt act may be any act, however trivial, that demonstrates the intention to carry out the conspiratorial plan., The Supreme Court of India has held that the misjoinder of charges under Section 120 with other substantive offences does not render the trial invalid. Section 239 of the Criminal Procedure Code allows persons accused of different offences arising out of the same transaction to be tried together, provided the offences are not distinct in nature. The Court has clarified that the term \transaction\ is to be given a liberal meaning and does not require a strict legal nexus between the offences., In cases tried before a Special Judge, the charge of conspiracy must be expressly framed. The Special Judge may take cognisance of the offence under Section 120 and may grant pardon only in accordance with the provisions of Section 13 of the Special Courts Act. The Court has emphasized that the wording of the charge must specifically allege the conspiratorial agreement and the overt act, otherwise the charge may be struck down as vague., The punishment for criminal conspiracy under Section 120B is the same as that for the substantive offence, unless a lesser punishment is prescribed. Where the substantive offence is punishable with death or life imprisonment, the conspirators may be sentenced to death or life imprisonment respectively. However, where the substantive offence carries a lesser penalty, the conspirators are liable to the same lesser penalty. The Court has consistently applied this principle in cases involving murder, kidnapping, and other serious offences.
id_1354	11	Lord Mansfield told the jury that there could be no occasion to prove the fact of conspiracy and that the same had to be collected from collateral circumstances. He observed that the Crown may be a party to the same criminal agreement and that the question of conspiracy could generally be established on the basis of circumstantial evidence. The evidence must be scrutinised by the Supreme Court of India in order to determine whether the alleged conspirators have ever met, corresponded or had any knowledge of each other’s plans., Fitzgerald observed that there is no necessity for the prosecution to provide express proof of conspiracy such as proving that the parties actually met and agreed to carry out a common purpose. He noted that the alleged conspirators have never seen each other and have never corresponded, yet the law may still deem them parties to a common criminal agreement if the circumstantial evidence is sufficiently strong., In the case of King v. Brisac and Scott the question which directly arose for decision was whether the offence of having conspired to cheat the Crown by falsifying documents could be tried within the jurisdiction of the High Court of Bombay. The court held that the offence required proof of a conspiratorial agreement and that such proof could be derived from direct or indirect evidence, but the burden of proof remained on the prosecution., Badge was arrested on 31 January 1948. He was a police officer who, according to his own statements, supplied arms and ammunition to Nathuram Godse and others. Badge’s testimony included a letter addressed to him by Karkar, in which he admitted to delivering weapons and explosives. He also stated that he had been in custody of his brother Naryan and that he had been instructed by Apte to provide material support for the planned demonstration. Badge’s statements were recorded by Sub‑Inspector Pradhan and later used as evidence in the trial., The Supreme Court of India examined whether the evidence presented by Badge and other witnesses satisfied the statutory requirement for corroboration. The court emphasized that corroboration must be independent and reliable, and that mere hearsay or uncorroborated statements cannot form the sole basis for a conviction. The court also noted that the Crown must establish a clear link between the accused and the alleged conspiratorial act, and that any inference drawn from circumstantial evidence must be reasonable and not speculative.
id_1354	12	Badge got down at Dadar station and proceeded to the Hindu Mahasabha office. He did not find the Mahasabha office or Nathuram Godse there. He waited for them for about half an hour. Later he and Shankar left the office to take some tea. They met Apte, who told Badge that arrangements had to be made for the material and asked him to come with him. According to his evidence Badge took the bag from the person who was asked to stay at the office., After Badge and Apte had gone to four or five places they met Nathuram. The three then proceeded to Savarkar Sadana. On reaching there Nathuram and Apte went upstairs with the bag while Badge stayed downstairs. After a few minutes all three returned to the office and left with the bag, which had been brought by Apte. They drove to Dixit Maharaj's house in Bhulshwar. By the time they arrived, around 10 or 10:30 p.m., the bag was left with a servant., Badge described that the servant was instructed to keep the bag in the house. The servant was told that the bag would be taken back by Badge himself. The bag contained cotton slabs and other items. Later, Badge and Apte left the house, taking the bag with them, and returned to the Mahasabha office where they handed the bag over to Kaka Man., On 2 February 1948 an identification parade was held at Bombay. Neither Apte nor Nathuram could be identified. However, the evidence presented later indicated that the bag had been handed over to Badge by a servant named Yarayan Vithal Angre, also known as Narayan Angre. Angre was asked to bring the bag to Badge, and he fetched it after about twenty‑five minutes., Badge testified that he had seen a Punjabi boy who had previously come to his house to sell books. He identified this boy as Karkare. The witness also stated that Karkare had visited Badge's house on 15 January and that the bag contained two white bricks, two grenades, and a revolver. Badge claimed that the revolver was taken from Dixit Maharaj's house on the night of 14 January., During cross‑examination, Badge admitted that he was not sure he could identify Nathuram Godse, although he had seen him twice on 15 January. He also stated that he could not positively identify Karkare at the identification parade held on 9 February. The witness further explained that the bag was meant for the Hindu Mahasabha and that the items inside were intended for defensive purposes.
id_1354	13	Godse and Apte were receiving assistance from various persons. They were involved in a transaction in which items were delivered to Dixitji Maharaj and subsequently handed over to Karkare. Payment for the transaction was delayed, and the parties could not rely solely on cash; mutual accommodation was inevitable. The items were eventually taken to Dixitji Maharaj’s place and handed over to Karkare, after which payment was made., Apte asked Dixitji Maharaj whether he could travel to Delhi. When asked about the purpose of the trip, Apte explained that Tatyarao Savarkar had decided that Chandragupta and Suhrawardy should be finished. Apte requested a companion for the purpose and promised to cover travelling expenses. He agreed but could not go immediately; he arranged to travel to Poona first in order to make the necessary arrangements., Godse also wanted to go to Poona to fetch Gopal, who had promised to secure revolvers. After leaving the temple, Apte and Kathuram Gode stopped at the Badge and Shankar office of the Hindu Mahasabha for about fifteen to twenty minutes. Badge then left for Delhi, and Shankar accompanied him to Poona that same night. The departure was corroborated by independent witnesses who noted that the evening train to Delhi was taken by Karkare., Apte and Godse booked railway tickets under assumed names, using the names Deen Dayal and S. Marathe. The reservation slips for the 15th and 16th of January 1948 show two passengers booked under these aliases, with the residence listed as Room No. 6, Sea Garden Hotel, Bombay. In their oral statements, Apte attempted to explain the use of false names by claiming that the tickets were originally intended for Air India travel on 14 January, but the explanation was found untenable in view of the reservation details., Doctor Jain testified that Madanlal had operated two fruit stalls at Ahnednagar and that he and his companion had been seen driving a motor vehicle together. Madanlal later claimed to have left Bombay for three days, during which he visited the Mahasabha office and met with various individuals, including Seth Karkare. He also stated that he had been in contact with Doctor Jain regarding his exploits and that he had been offered assistance by the Hindu Mahasabha for his activities., The Bombay High Court noted that the statements of Badge, Apte, Godse, and the witnesses were examined in detail. The court observed that the evidence regarding the false names, the reservation slips, and the alleged demonstration at the Mahasabha office required careful scrutiny. The court also recorded that the prosecution had not yet commenced proceedings against the accused as of the date of the hearing.
id_1354	14	Professor Jain testified that he had read about the explosion incident in newspapers dated 21 January 1948. He stated that the person who had been arrested in connection with the explosion was named in those reports, and that he had personal knowledge of the individual. Professor Jain said that Madanlal had come into contact with him as a refugee and that he had helped Madanlal. He further recounted that Madanlal had told him he and his friends had decided to take the life of a great leader. Professor Jain also mentioned that Madanlal had informed him that a cache of arms and ammunition was stored at Ahmednagar and also at Poona., Angad Singh testified that he had heard from his friend Professor Jain about a conversation that took place between Professor Jain and Madanlal after Madanlal left for Delhi. According to Angang Singh, Madanlal had told Professor Jain that he and his associates had decided to take the life of Mahatma Gandhi and that they possessed arms and explosives. Angad Singh further stated that Professor Jain had told him that Madanlal had claimed that Savarkar had spoken to him for about two hours and had praised him for his actions., Desai, who was then the Home Minister of the Province, asserted that he was competent to investigate any disclosures made by Madanlal. He claimed that the statement allegedly made by Professor Jain to him was admissible under Section 157 of the Indian Evidence Act, which allows prior statements to corroborate a witness’s testimony. Desai argued that the statement was made within a reasonable time after the alleged conversation with Madanlal and therefore should be admitted as evidence., The forfeiture of security deposits amounting to Rs. 162,001, which had been posted by the journals of the Hindu Rashtriya, was ordered under the Press Emergency Powers Act. The High Court upheld the forfeiture, finding that the deposits were forfeited as a penalty for the alleged publication of false information relating to the arms and ammunition distribution by Dada Maharaj to members of the Socialist Party., The Supreme Court of India considered the appeal against the High Court’s order. It noted that the appeal had been filed after the forfeited security amount was refunded under Government orders on 15 August 1947. The Court held that the refund of the forfeited amount did not affect the validity of the original order, and that the evidence presented by Professor Jain, Angad Singh, and Desai was admissible under the relevant provisions of the Indian Evidence Act.
id_1354	15	Professor Jain gave evidence that Madan Lal had informed him about arms, ammunition and explosives stored at Poona. Angad Singh says that this was mentioned by Professor Jain to him according to Mister Desai. Professor Jain also told Madan Lal that he had been told by Savarkar that the explosives were stored at Poona while the statement was described to Madan Lal in the evidence given by Professor Jain. The third is quite easy explanation and in fact there is no discrepancy. Professor Jain stated that Madan Lal had informed him about the explosives at Poona., The witness Angad Singh further states that the former witness did not mention the conversation which Madan Lal held with him. He says that the reference to the explosives was not made by the former witness while the conversation was recorded in the evidence. The witness also notes that there is no discrepancy in the statements of Professor Jain regarding the arms and explosives., Professor Jain testified that Madan Lal had informed him that the explosives were stored at Poona and that Savarkar had also confirmed this. He added that the explosives were kept in a locker at Poona and that the information was conveyed to him by Madan Lal. The witness also mentioned that the Hindu Mahasabha office was involved in the storage of the arms and ammunition., The record shows that the Hindu Mahasabha was a prominent worker of the organization and that the office in the district was used for the relief of victims of the Muslim atrocities in East Punjab and East Bengal. The witness cannot believe that the Mahasabha was not known to the authorities. The evidence also indicates that Madan Lal was fully conversant with the explosives and that he had been entrusted with the task of handling them., The testimony of the witness Badge indicates that he had returned to Poona with a bundle of articles containing explosives, arms, ammunition and other items. He handed over one bundle to the Hyderabad State Congress and another bundle to the Hindu Mahasabha. The bundle contained written instructions and was sealed with a lid. The writing on the other side of the box indicated the number of cartridges and the date of manufacture, which was 1942., According to the witness Badge, he had taken the explosives from Poona to Delhi on 16 January 1948. He met Nathuram Godse and Apte at the Victoria Terminus Railway Station on the morning of 17 January 1948. The witness states that the meeting place was chosen because it was nearer to the Sea Green Hotel where the Hindu Mahasabha office was located. The witness also explains that Badge travelled from Dadar to the Victoria Terminus by taxi, and that the taxi driver, Aitappa Krishna Kotian, confirmed the details of the journey., The witness Gopal Godse applied for casual leave from 15 January 1948 to 21 January 1948. His first application for leave on 14 January 1948 was rejected, and a fresh application for leave from 17 January to 23 January 1948 was granted. The witness states that he intended to travel to Delhi to join his brother Gopal. The evidence shows that Nathuram Godse left Poona on 14 January 1948 on a train and returned to Poona on 16 January 1948 before travelling again to Bombay., The record also contains entries from the diary of Nathuram Godse indicating that he was in Poona on 15 January 1948 and that he had a revolver with him. The diary entries show that he met Badge on 16 January 1948 and that they exchanged a revolver for a pistol. The witness Apte testified that he picked up Badge and the other two persons from the Victoria Terminus Railway Station at 3.30 a.m. on 17 January 1948.
id_1354	16	Nathuram Godse learned from counsel that the Special Judge of the Bombay High Court was to consider the evidence that the appellant had engaged a taxi and that the witness testimony was not convincing., The taxi was engaged to collect money for the expenses of the expedition to Delhi. The witnesses named Aitappa Krishna, Yotin, Pe80, Ch2ranase, Meghji Mathuradas, Ganpetrad, Bhimroo, and others were said to have been present at the time of the engagement., Badge and Apte introduced themselves to the witnesses. Apte identified Badge at the identification parade held on 2 March 1948. In place of Nathuram Godse, Karkare was identified, although this identification was deemed immaterial because both Nathuram Godse and Apte admitted having gone to the Bombay Dyeing Mills and that they had not received any money from the witness., Apte asked the witness for a contribution of Rs 5,000. The witness refused and offered a donation of Rs 1,000 instead, stating that it was not the practice of his organization to give large loans. The witness then gave a sum of Rs 1,000 by way of donation., According to the witness, Badge and Apte claimed to be members of the Hindu Mahasabha and said they were proceeding to Hyderabad for a meeting. The witness later told them that the situation in Hyderabad was not of interest to the Hindu Rashtra and that he had no intention of collecting money for that purpose., The witness recounted that after leaving the house of Dixitji Maharaj at Bhuleshwar, Apte asked Dixitji Maharaj for a revolver. Dixitji Maharaj showed him a small pistol but declined to part with it unless Apte paid for it, despite Dixitji Maharaj’s earlier promise that the revolver would be provided., Apte and the witness first went to the Juhu Aerodrome. Finding that flights to Delhi departed from the Santa Cruz Aerodrome, they drove to that location. While getting down from the taxi at the aerodrome, Apte paid the witness Rs 350 as a contribution and left with Shankar for Delhi that same night., On a second occasion, Nathuram Godse took another taxi. The taxi was driven to the lane near the house of Dixitji Maharaj, but the driver could not comply with the request to stop at the exact corner, so the party proceeded to the Hotel where they were picked up by another vehicle., Madanlal and Karkare stayed at the Sharif Hotel in Chandni Chowk. They occupied Room No 2 from 5 p.m. on 17 January 1948 until 7 p.m. on 19 January 1948. The hotel register shows their names and the dates of occupancy., Karkare used an assumed name, \BeMeByas,\ in the hotel register. He later explained that he adopted a false name because a detention order had been issued against him and he feared arrest by the Bombay Police. He also claimed to have been engaged in refugee work at the Chembur Camp in Bombay at the time., Apte and Nathuram Godse left Bombay by plane on 17 January 1948, arriving at Palam Aerodrome at about 7 p.m. They stayed at the Marine Hotel under the assumed names \Deshpande\ and \Deshpandel\. The hotel visitor register records their arrival at 8 a.m. the next morning., At the identification parade held at Bombay on 30 March 1948, Karkare was positively identified by the witness. The identification was conducted in the presence of police officers and other officials, and the witness affirmed that the person before him was indeed Karkare.
id_1354	17	The witness testified that on 8 March he was with Gopal for two hours. He identified Gopal during the identification parade held on that date, as described by Mr. Karkare. The witness stated that he had no prior knowledge of the accused and that his identification was based solely on visual observation., The manager of the Sharif Hotel testified that Gopal Godse and Mr. Madanlal arrived at the hotel on 19 January and occupied a room until approximately 3 to 5 p.m. The manager also stated that the occupants left the hotel after being informed by Mr. Karkare that they could remain until later in the evening., According to the testimony, the Birla House had a trellis window through which a hand‑grenade could be thrown. The witness described the construction of the trellis as being made of brick and cotton slabs, and explained that a hand‑grenade and a revolver were supplied to Gopal Godse and to Mr. Karkare for use during the alleged incident., The identification parade of the accused was conducted on 24 March 1948 under the supervision of the Bombay Police. The parade included Gopal Godse, Mr. Madanlal, Mr. Karkare and other persons. The witness confirmed that the parade was carried out in accordance with the procedures prescribed by the police., The Supreme Court of India, after hearing the evidence, noted that the testimony of the witness regarding the identification parade and the events at the Sharif Hotel and Birla House was credible. The Court observed that no independent corroboration was presented for the alleged use of a hand‑grenade, and therefore the prosecution's case remained unsubstantiated.
id_1354	18	The cross‑examination of Gopal Godse on 30 July 1948, conducted by counsel, recorded the following statement: \You held discussions in regard to the distribution of the material and how the material was to be used.\ The witness testified that the discussions had taken place in the room of Nathuram Godse in regard to a demonstration that was to be held in the prayer ground., It is not a fact that the discussions were held loudly and that Nathuram Godse had asked to shift to the bathroom. The counsel at this stage, after consulting Mister Bhopatkar, withdrew the question, stating that it was not necessary to convey to the witness., The identification of persons in the Birla House was conducted. The witness described a coloured car with a revolver and a hand grenade, stating that the car was first taken to the Hindu Mahasabha office, where the witness himself added the revolver to the bag., The witness further testified that the taxi was parked near the Birla House, and that the explosion occurred when the taxi was moving towards the gate. The witness identified Nathuram Godse as one of the passengers in the taxi., The Supreme Court of India noted inconsistencies in the identification, stating that the witness could not reliably identify Nathuram Godse due to the circumstances of the explosion and the presence of multiple passengers.
id_1354	19	It is true that the musical practitioner who was cited as a witness was not able to produce any identification. However, the witness inclined to attach any important observation to this condition. The review of the testimony of the magistrate who held the parade, Mr. Kishan Chand, indicated that Nathuram had a bandage tied around his head. This witness, identified as P339, may have mistaken the towel for a bandage. Evidence shows that a number of persons with whom Nathuram had been traveling also had towels tied around their heads. The probability that a towel was tied around his head is high, and there were scratches or other marks on his head resulting from injuries recorded on 14 January. I cannot find any reason to doubt the identification of Nathuram by the witness, as the identification appears genuine., The witness Badgo, also known as Gopal, was at the house of Birla around 5 p.m. on 20 February. He returned before the same taxi and was dropped at the Connaute Place. The testimony of Shrimati Salochana indicates that the material could not be denied and was in fact admitted as evidence. The evidence was attacked on two grounds, viz. that the person who had taken the bag was Chhotu Ram, a person who had obtained the bag from the accused and pointed out that Nathuram was the owner of the bag. The witness could not recall the exact details, leading to confusion in the description., Exhibit 15, the coat, was recovered from the Mahasabha Office and Marina Hotel. It was mentioned that two bags, each containing a revolver, were left in a taxi. The coat was examined and found to bear the initials of the other two persons present. The coat was taken to Bombay by Mr. C. A. Pinto, Inspector of Police, CID. The house of Apte at Poona was searched twice, on 18 January and again in April 1948, but the trousers in question were not recovered. The recovery of the coat and the trousers was described as sudden and dramatic, with the coat being found in a trunk that had mysteriously appeared at the top of a cupboard., Hand grenades and other explosives were also part of the evidence. Two hand grenades were recovered from Exhibit P41 and P42, wrapped in paper. The grenades were found in the pocket of Shankar. The evidence suggested that the grenades were intended to be used at the Mahatma Gandhi prayer ground, but they did not explode. The plan appeared to involve the use of a gun cotton slab, which was found at a distance from the Mahatma Gandhi site. The prosecution argued that the explosives were intended to be used at the Marina Hotel, but the evidence showed that the slab was not intended for that purpose., The Supreme Court of India observed that the general impression was that the intention of the accused, Badgo and Karkare, was not to kill Mahatma Gandhi but to create a disturbance. The learned Special Judge noted that the hand grenades were not thrown, and the plan to use the gun cotton slab was not fully executed. The judge also remarked that the evidence of the witnesses was inconsistent and that the prosecution had not proved the possession of the revolvers by Gopal at Delhi. The court concluded that the evidence did not establish a conspiracy to murder Mahatma Gandhi.
id_1354	20	According to the witness, Apte and Nathuram left about half an hour after the witness later left for Poona at some time after 10 p.m. on the night of 26 January 1948. The witness admitted having seen Nathuram and Gopal for the first time on 25 January 1948 at their house., It was urged that the father of the witness, G. Me. Joshi, although cited as actually present at Delhi, was not a witness. The prosecution failed to examine G. Me. Joshi, who was presumably present, and therefore the identification of Gopal and Nathuram at their house on 25 January 1948 should not be accepted., The witness identified Nathuram and Karkare at the identification parade held at Delhi on 28 February 1948., The witness identified both Apte and Karkare at the identification parade held at Bombay on 31 March 1948., The witness stated that three passengers removed their luggage and vacated the room, and that he was on duty at the Delhi Railway Station from 8 a.m. to 4 p.m. on 29 and 30 January 1948., The witness handed over his pistol to the police and refused to accept any payment unless his pistol was returned to him., The witness was arrested on 11 February 1948 and kept in custody until 4 May 1948., The witness was a member of the Gwalior Medical Association and had known Apte and Nathuram since 1941. He testified that he was unable to comply with a request to go to the doctor's place because he had to attend to his office.
id_1354	21	Karkare was made to produce a pair of glasses which had not been put on before the witness. The railway tickets dated 30th and 31st were found in the possession of Karkare and Nathuram at the Delhi Railway on the 29th or 30th of 1948. The tickets were recovered from the railway ticket office and were presented as evidence of their alleged conspiracy., A letter dated 30th January was enclosed in an envelope addressed to the Hindu Rashtriya. The envelope was sent by Apte on behalf of the Hindu Rashtriya. A telegram was despatched to the Secretary of the Indian National Congress in Delhi by Miss Salvi on the same date, stating that she was acting on behalf of Apte. The telegram was intended to be used as evidence of Apte's alleged involvement., Nathuram shot Mahatma Gandhi dead with a pistol on 30th January 1948 while Gandhi was on his way to the prayer platform. This event is recorded in Exhibit 39. The pistol was allegedly brought from Gwalior with the approval of the conspirators., A bag containing explosives, cotton slabs and other materials was found in the possession of Badger. The bag also contained a revolver and a large quantity of ammunition. The explosives were intended for use in a planned attack on the Birla House., Apte and Nathuram travelled to Bombay on the 23rd of January and stayed at the Birla House. Madanlal and Gopal were also present at the Birla House. The group discussed plans for a demonstration and the use of the explosives. The police later recovered the bag of explosives from the Birla House., The Special Judge of the High Court of India examined the evidence, including the railway tickets, the letter, the telegram, the pistol, and the bag of explosives. The judge concluded that the evidence was insufficient to prove the conspiracy beyond reasonable doubt and that the accused could not be convicted on the basis of the material presented.
id_1354	22	```json Before dealing with individual cases I should like to consider Nathuram Godse against the finding of the existence of the conspiracy. It was urged in the first place that on 10th January there could be a conspiracy entered into for the murder of Mahatma Gandhi. It pointed out that till 12th January 1948 there was nothing new or unusual in the atmosphere of the country or in the Muslim community and that it was on the 13th January that the decision to go on fast from the ... was announced. The Supreme Court of India noted that the purpose of securing to the Muslims of Delhi their mosques was a pretext and that the Hindu Mahasabha had occupied the place of worship. The court observed that the story put forward by the prosecution as a total fabrication was wholly improbable and that the alleged conspiracy was a false case. The Supreme Court of India held that the dates of the alleged conspiracy were clearly stressed and that the 13th January could not be taken as the date of the conspiracy. The court further observed that the alleged conspirators, including Nathuram Godse, Madanlal, and Gopal Godse, were not merely dissatisfied with the influence of Mahatma Gandhi but harboured resentment and anger towards him. They felt that Gandhi's policies were harmful to the Hindu community. The Supreme Court of India found that the evidence presented, including the statements of Madanlal and the testimony of witnesses such as Professor Jain, indicated that the conspirators had indeed planned the murder. The court noted that Madanlal had disclosed the names of Karkare and Badse to the police on 20th January and that no other names were disclosed. The court also considered the testimony of witnesses who saw the conspirators at the Hindu Mahasabha Bhawan on various dates in January 1948. The Supreme Court of India concluded that the conspiracy to murder Mahatma Gandhi was proved beyond reasonable doubt and that the accused were guilty of the offence of conspiracy to murder. ```
id_1354	23	Shri K.P. was released on 16 February 1948 after being detained since the first week of July 1948., The magistrate recorded a confession on 18 February 1948; the confession was obtained under duress and was not voluntary., The case was heard by the Delhi High Court on 24 May 1948., The learned Special Judge held that the accused was abetted in the murder of Mahatma Gandhi., Section 302 of the Indian Penal Code deals with murder, and Section 120B of the Indian Penal Code deals with criminal conspiracy., The maximum punishment for conspiracy to commit murder is death., The learned Special Judge observed that the accused was a member of the Hindu Rashtriya and that the evidence of the approver was not reliable., The appeal was dismissed.
id_1354	24	Special Judge. The learned Judge. June 1949. True Copy. Supervisor. Approved for reporting by.
id_1356	0	Sri Ankan Tilak Paul, Petitioner-in-person, versus The State of Tripura and others, Respondents. Petitioner-in-person: Sri Ankan Tilak Paul, Advocate. For the Respondents: Mr. T. D. Majumder, Senior Advocate; Mr. Tapash Halam, Advocate. (Indrajit Mahanty, Chief Justice) Heard learned counsel for the respective parties. Dr. Shailesh Kumar Yadav, Indian Administrative Service, Municipal Commissioner, Agartala Municipal Corporation, is present to assist the Tripura High Court., The Municipal Commissioner informs that a tender was floated by the Agartala Municipal Corporation on 21 February 2022 for the construction of an abattoir/slaughter house. He submits that once the tender is finalized, the time allotted for construction and completion is expected to be within a period of eighteen months. He further states that the tender has been issued in anticipation of financial sanction and that a total of 139 persons have been granted trade licences for dealing with meat., The Agartala Municipal Corporation should prepare a long‑term plan for not only setting up the abattoir/slaughter house but also for ensuring disposal of garbage in an appropriate scientific manner, which is an additional feature of the slaughter house for which the tender has been floated. All authorities, including the local police, are hereby directed to render all necessary assistance to the Agartala Municipal Corporation for enforcing and assisting in carrying out its duties. If more people apply for licences, the applications shall be considered and disposed of at an early date so that people are not deprived of essential needs. Inspection must be carried out of all licensed premises, with particular attention to ensuring that hygienic conditions are being maintained. Sale of meat products should not be allowed in public places or streets. The Agartala Municipal Corporation shall consider providing locations where slaughter can be carried out until the slaughter house is operational, and such locations shall be apprised to the concerned licencee. Appropriate bins shall also be provided to all licencees so that they can collect all waste material for disposal through the Agartala Municipal Corporation disposal system. The Agartala Municipal Corporation is also directed to seek assistance of the Veterinary Department to post officials who shall be given the authority to certify the quality of meat or meat products that are being made available for public sale. The Tripura High Court is conscious that this certification is likely to take some time and consequently these directions shall be implemented within six months from today. The Pollution Control Authority shall also carry out necessary steps to assist the municipal authorities in maintaining sanitation and hygiene of all these areas. We also direct the Agartala Municipal Corporation, along with health officials, to visit all hospitals and nursing homes to find out the method of disposal of polluting materials generated from the hospitals. Apart from the above, the Agartala Municipal Corporation shall also consider the need for additional resources or locations for setting up additional sewage treatment plants to meet the needs of the entire expanding city. Obviously, the object behind it would be to reduce or stop the flow of untreated water into the rivers or rivulets around the town. In this respect, the directions shall be carried out by the Agartala Municipal Corporation, and we hope and trust that all agencies, including the police authorities, the Pollution Control Authority, and the persons operating government hospitals as well as private nursing homes, will provide all necessary assistance. In this respect, the Tripura High Court also directs the Finance Department to provide all necessary financial support for conducting the activities as well as the construction of the abattoir/slaughter house for which the tender has already been floated at the earliest. The aforesaid directions shall also be used by the appropriate departments of the State Government, including Finance, Urban Development and other co‑related departments, to implement the directions in all municipal bodies throughout the State to the extent feasible and financially possible. The Agartala Municipal Corporation is further directed to bring to the notice of the Forest Department, particularly the Chief Wildlife Warden, if they come across any sale of banned endangered species of animals; in that event the Forest Department shall take all necessary steps to ensure that such sale does not take place and shall initiate necessary steps in accordance with law. We further direct that an affidavit shall be filed before the Tripura High Court regarding compliance within six months, and upon such filing, the matter may be placed before the appropriate bench for consideration., With these observations and directions, the matter stands disposed of. Pending applications, if any, also stand disposed of.
id_1357	0	Special Committee of the Bar Council of Delhi headed by Shri K.C. Mittal, Member of the Bar Council of Delhi, and Dr. N.C. Sharma, Chairman of the Coordination Committee, along with Shri Raman Sharma, Secretary General of the Coordination Committee, and the Presidents and Secretaries of the All Bar Associations, after marathon deliberations, have finalized the Delhi Advocates (Protection) Bill, 2023. The object of the Bill is to provide adequate safety, security and to safeguard advocates from incidents of assaults, killings, intimidation and threats, which have been frequently occurring in the past. The Committee has also included the protection of privileged communications between advocates and clients and to acknowledge the freedom of expression and association., The Act is applicable to the advocates covered under the Advocates Act, 1961 and, while defining acts of violence, offenders, punishment and providing compensation, it also provides for police protection to the advocates in case of any threat, in appropriate cases., The Bill provides for the constitution of a Permanent Grievance Redressal Committee at the level of each District Court and the High Court of Delhi. The committees shall consist of the Head of the Judiciary, that is, the District Judge at the district level, along with the President or Secretary of the concerned Bar Association and a nominee of the Bar Council of Delhi. For the High Court, the committee shall comprise the Honourable Chief Justice or his nominee, along with the President or Secretary of the Delhi High Court Bar Association and the Chairman or a nominee of the Bar Council of Delhi. The respective committees may also include two senior advocates or former office bearers of Bar Associations or the Bar Council., This structure will act when any incident happens in the court premises and will make all efforts to resolve the same. However, if the situation warrants, the committee will refer the matter to the High Court and the Bar Council of Delhi and, in case of police or any other authority, the committee shall be competent to issue appropriate directions based on the facts brought before it., The Bill protects advocates from illegal arrest and malicious prosecution. However, the protection under this Act will be available only to advocates and not to others who are involved in any vocation, trade, activity, business, etc.
id_1358	0	BLAPL No.351 of 2023 Sureswar Mishra and another, Petitioners, versus State of Odisha, Opposite Party. For Petitioners: Mr. Asok Mohanty, Senior Advocate; Mr. D. Nayak, Senior Advocate; Mr. B.K. Ragada, Advocate; Mr. L.N. Patel, Advocate. For Opposite Party: Mr. K.K. Gaya, Additional Standing Counsel. Date of hearing: 09 February 2023. Date of judgment: 10 February 2023. Justice V. Narasingh., Heard Mr. Mohanty and Mr. Nayak, learned Senior Advocates for the Petitioners and Mr. Gaya, Mr. Mahraj and Mr. Pradhan, learned Additional Standing Counsel(s). The Petitioners are accused in G.R. Case No.4941 of 2022, pending before the learned Special District Judge (Magistrate), Sambalpur, arising out of Sambalpur Town Police Station Case No.0481 of 2022, for alleged offences under Sections 147, 452, 341, 323, 353, 354, 332, 506, 186, 188, 427, 294, 149 of the Indian Penal Code, Section 3 of the Prevention of Damage to Public Property Act and Section 7 of the Criminal Law (Amendment) Act., The Petitioners are aggrieved by the rejection of their application for bail under section 439 of the Criminal Procedure Code by the learned Additional Sessions Judge-cum-Special Judge (Vigilance), Sambalpur, by order dated 04 January 2023 in the aforementioned case, and the present bail application has been filed., The genesis is the call of Satyagraha given by the District Bar Association, Sambalpur. It is surprising that the Petitioners, who are members of the legal profession, chose to ignore the Constitution Bench judgment of the Supreme Court of India in the case of Excerpt Harish Uppal versus Union of India and another reported in (2003) 2 SCC 45, wherein the Supreme Court, while dealing with the malady of strike or boycott by lawyers, noted their exalted stature in society and in IN RE: Sanjeev Datta, (1995) 3 SCC 619 stated: 'The legal profession is a solemn and serious occupation. It is a noble calling and all those who belong to it are its honorable members. Although entry to the profession can be had by acquiring merely the qualification of technical competence, the honour as a professional has to be maintained by its members by their exemplary conduct both in and outside the Court. The legal profession is different from other professions in that what the lawyers do affects not only an individual but the administration of justice which is the foundation of the civilized society. Both as a leading member of the intelligentsia of the society and as a responsible citizen, the lawyer has to conduct himself as a model for others both in his professional and in his private and public life. The society has a right to expect of him such ideal behavior. It must not be forgotten that the legal profession has always been held in high esteem and its members have played an enviable role in public life.', In the said judgment, the Supreme Court of India also referred to the immortal words of the legend H. M. Seervai: 'Lawyers ought to know that at least as long as lawful redress is available to aggrieved lawyers, there is no justification for lawyers to join in an illegal conspiracy to commit a gross, criminal contempt of court, thereby striking at the heart of the liberty conferred on every person by our Constitution. Strike is an attempt to interfere with the administration of justice. The principle is that those who have duties to discharge in a court of justice are protected by the law and are shielded by the law to discharge those duties; the advocates in return have a duty to protect the courts.', The birthday of the grand old man of Odisha, Madhusudan Das, popularly known as Madhu Barrister, is celebrated every year in this State on 28 April as Lawyers Day. He would have hung his head in shame and despair knowing that the petitioners‑advocates, whose licences to practice have been suspended by the Bar Council of India, are accused of vandalising the temple of justice., The Petitioners state that there was no premeditation. It was mob fury and an expression of collective anger at the disappointment of legitimate local aspirations not being redressed. They submit that momentarily the heightened element got the better of their sanity and, as they have no criminal proclivity, they may be released on bail. The charge sheet was filed on 8 February 2023., The events of 30 November 2022 and 8 December 2022 leading to the unfortunate incident on 12 December 2022 belie the submission of learned Senior Advocate Mr. Mohanty that it was not premeditated. Rather, prima facie, it seems to have been orchestrated by design., Learned counsel for the State, on the basis of the recitals in the case diary, submits that there are materials on record indicating that the Petitioners chose to take the law into their own hands, not only causing damage to the property of the Odisha High Court but also manhandling judicial officers and staff. The learned Public Prosecutor further submits that by their overt act the Petitioners have undermined the rule of law., Lawyers are an integral part of the justice delivery system. They are the bridge between justice seekers and courts. Not for nothing, they are referred to as officers of the Court. The alleged conduct of the Petitioners is deplorable to say the least. The manner in which they have conducted themselves shocks the conscience of this Court. However, the majesty of law reigning supreme mandates that all accused be treated with an even hand notwithstanding their alleged conduct., The submission of the learned Senior Counsel that the conduct of the petitioners‑advocates is an instance of 'the sin being more sinned against' does not hold water and must be negated in view of the manner in which the overt acts have been committed, which is clearly borne out from the statements of Shri Soven Kanungo, Registrar, District Courts, Sambalpur (Court Witness 20), Smt. Rosy Tripathy, Civil Judge (Junior Division), Sambalpur (Court Witness 25) and Smt. Aradhana Sarangi, Senior Civil Judge (Commercial Court), Sambalpur (Court Witness 27)., By their conduct, there is no iota of doubt that the Petitioners have undermined the majesty and dignity of the Odisha High Court and unabashedly put the presiding officers and staff of the Court, including lady officers and staff, in mortal fear for their life and limb. It is by sheer providence that the judicial officers and staff of the Court did not suffer any serious injury., It is the obligation of all concerned with the justice delivery system to uphold the dignity of the Court, which was unfortunately forgotten by the Petitioners, albeit momentarily., Yet this Court is alive to the duty cast on it to treat the accused Petitioners, even in the face of allegations which are condemnable, uncompromisable and unpardonable, with equanimity. It is the cardinal principle of law that a court cannot allow its decision to be swayed by emotions and public sentiments, as held by the Supreme Court of India in Sanjay Chandra versus Central Bureau of Investigation, (2012) 1 SCC 40. The right to bail is not to be denied merely because of the sentiments of the community against the accused., The criminal jurisprudence of the country is still governed by the age‑old principle that bail is the rule and jail is the exception – reference: Nikesh Tarachand Shah versus Union of India and another, (2018) 11 SCC 1, and reiterated in the recent exposition of the Supreme Court of India regarding grant of bail in the case of Satender Kumar Antil versus Central Bureau of Investigation and another, (2022) 10 SCC 51., The events in the case at hand impelled the Supreme Court of India to state that the very edifice of the judicial system is sought to be shaken by such disruption and criminal activity carried on by a section of the bar., But at the same time the Supreme Court of India reiterated, allaying the misplaced apprehension at the behest of petitioners, the primacy of the law in its prophetic words. In our view, every court acts as per law. Reference: Order dated 14 December 2022 passed in T.P. (Civil) No.2419/2019 (M/s. PLR Projects Private Limited versus Mahanadi Coal Fields Limited)., Though deeply saddened and anguished by the manner in which the Petitioners, who are members of a noble profession, conducted themselves, keeping in view the period of custody, filing of charge sheet, and notwithstanding the seriousness of the allegation, this Court directs the Petitioners to be released on bail on such terms to be fixed by the Court in seisin., Additionally, it is directed that the Petitioners shall not hold any public meeting relating to the case; shall not post any opinion, remark or view in print and electronic media including social media relating to the case; shall not glorify or publicise their release from custody; and after release shall submit an undertaking on or before 1 April 2023 not to indulge in any such act of picketing or strike in the Supreme Court of India in terms of the order dated 6 February 2023 in M/s. PLR Projects Limited (supra)., It is needless to state that any violation of the aforementioned conditions will entail cancellation of bail in accordance with law., Before parting with the case, this Court fervently hopes that the Petitioners, by their conduct on release, will justify the trust reposed in them and shall not do anything overtly or covertly which would undermine the majesty of law., It is apt to state that the observations made herein are only for the purpose of deciding the applications of the Petitioners under section 439 of the Criminal Procedure Code. They should not be construed as expressing any opinion regarding their complicity, which has to be adjudicated independently on the basis of the materials on record., Accordingly, the bail application stands disposed of., An urgent certified copy of this order be granted as per the rules.

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