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2020 (11) TMI 1115
Directory provision or not - Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 mandating the District Magistrate to deliver possession of a secured asset within 30 days, extendable to an aggregate of 60 days upon reasons recorded in writing - HELD THAT:- The question as to whether, a time limit fixed for a public officer to perform a public duty is directory or mandatory has been examined earlier by the Courts as well. A question arose before the Privy Council in respect of irregularities in the preliminary proceedings for constituting a jury panel. The Municipality was expected to revise the list of qualified persons but the jury was drawn from the old list as the Sheriff neglected to revise the same. It was in these circumstances, the decision of the jury drawn from the old list became the subject matter of consideration by the Privy Council. It was thus held that it would cause greater public inconvenience if it were held that neglecting to observe the provisions of the statute made the verdicts of all juries taken from the list ipso facto null and void so that no jury trials could be held until a duly revised list had been prepared.
In T.V. Usman v. Food Inspector, Tellicherry Municipality, Tellicherry [1994 (1) TMI 292 - SUPREME COURT], the time period during which report of the analysis of a sample Under Rule 7(3) of the Prevention of Food Adulteration Rules, 1955 was to be given, was held to be directory as there was no time-limit prescribed within which the prosecution had to be instituted. When there was no such limit prescribed then there was no valid reason for holding the period of 45 days as mandatory. Of course, that does not mean that the Public Analyst can ignore the time-limit prescribed under the rules. He must in all cases try to comply with the time-limit. But if there is some delay, in a given case, there is no reason to hold that the very report is void and, on that basis, to hold that even prosecution cannot be launched.
This Court distinguished between failure of an individual to act in a given time frame and the time frame provided to a public authority, for the purposes of determining whether a provision was mandatory or directory, when this Court held that it is a well-settled principle that if an act is required to be performed by a private person within a specified time, the same would ordinarily be mandatory but when a public functionary is required to perform a public function within a time-frame, the same will be held to be directory unless the consequences therefor are specified.
Even though, this Court in United Bank of India v. Satyawati Tondon and Ors. [2010 (7) TMI 829 - SUPREME COURT] held that in cases relating to recovery of the dues of banks, financial institutions and secured creditors, stay granted by the High Court would have serious adverse impact on the financial health of such bodies/institutions, which will ultimately prove detrimental to the economy of the nation. Therefore, the High Court should be extremely careful and circumspect in exercising its discretion to grant stay in such matters.
The Hon'ble High Courts are well aware of the limitations in exercising their jurisdiction when affective alternative remedies are available, but a word of caution would be still necessary for the High Courts that interim orders should generally not be passed without hearing the secured creditor as interim orders defeat the very purpose of expeditious recovery of public money.
There are no error in the order passed by the High Court - the appeal is dismissed.
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2020 (11) TMI 1109
Validity of charge-sheet as well as the summoning order - person belonging to Scheduled Caste - dispute regarding possession of property - HELD THAT:- There is a dispute about the possession of the land which is the subject matter of civil dispute between the parties as per Respondent No. 2 herself. Due to dispute, Appellant and others were not permitting Respondent No. 2 to cultivate the land for the last six months. Since the matter is regarding possession of property pending before the Civil Court, any dispute arising on account of possession of the said property would not disclose an offence under the Act unless the victim is abused, intimated or harassed only for the reason that she belongs to Scheduled Caste or Scheduled Tribe.
In judgment reported as KHUMAN SINGH VERSUS STATE OF MADHYA PRADESH [2019 (8) TMI 1880 - SUPREME COURT], this Court held that in a case for applicability of Section 3(2)(v) of the Act, the fact that the deceased belonged to Scheduled Caste would not be enough to inflict enhanced punishment. This Court held that there was nothing to suggest that the offence was committed by the Appellant only because the deceased belonged to Scheduled Caste.
Therefore, offence under the Act is not established merely on the fact that the informant is a member of Scheduled Caste unless there is an intention to humiliate a member of Scheduled Caste or Scheduled Tribe for the reason that the victim belongs to such caste. In the present case, the parties are litigating over possession of the land. The allegation of hurling of abuses is against a person who claims title over the property. If such person happens to be a Scheduled Caste, the offence Under Section 3(1)(r) of the Act is not made out.
The Appellant had sought quashing of the charge-sheet on the ground that the allegation does not make out an offence under the Act against the Appellant merely because Respondent No. 2 was a Scheduled Caste since the property dispute was not on account of the fact that Respondent No. 2 was a Scheduled Caste. The property disputes between a vulnerable Section of the society and a person of upper caste will not disclose any offence under the Act unless, the allegations are on account of the victim being a Scheduled Caste. Still further, the finding that the Appellant was aware of the caste of the informant is wholly inconsequential as the knowledge does not bar, any person to protect his rights by way of a procedure established by law.
The charges against the Appellant Under Section 3(1)(r) of the Act are not made out - the charge-sheet to that extent is quashed - Appeal disposed off.
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2020 (11) TMI 1105
Territorial jurisdiction to entertain the writ petition - part of cause of action for filing the Writ Petition No. 5999 of 2014 arose within the territorial jurisdiction of Patna High Court or not - Petitioner served in the State of West Bengal under the authorities and organizations which are located either in States of West Bengal or Jharkhand - recovery of pension contribution - HELD THAT:- The part of cause of action has arisen within the territorial jurisdiction of Patna High Court. The deceased Petitioner was continuously receiving pension for the last 08 years in his saving bank account in State Bank of India, Darbhanga. The stoppage of pension of late B.N. Mishra affected him at his native place, he being deprived of the benefit of pension which he was receiving from his employer. The employer requires a retiring employee to indicate the place where he shall receive pension after his retirement. Late Shri B.N. Mishra had opted for receiving his pension in State Bank of India, Darbhanga, State of Bihar, which was his native place, from where he was drawing his pension regularly for the last 08 years, stoppage of pension gave a cause of action, which arose at the place where the Petitioner was continuously receiving the pension.
The view of the learned Single Judge as well as the Division Bench holding the writ petition not maintainable on the ground of lack of territorial jurisdiction was completely erroneous and has caused immense hardship to the Petitioner.
The Appellant is entitled for an interim order in the writ petition for her sustenance. The Appellant's husband, who had filed the writ petition had died during the pendency of the writ petition. After his death, the Appellant, the widow was substituted. Six years have passed after filing of the writ petition wherein stoppage of pension was questioned. Appellant being the widow is also entitled for pensionary benefit for her sustenance since her husband was receiving pension - during the pendency of the writ petition the Appellant is entitled to be paid provisional pension which shall be subject to final decision in the writ petition - appeal allowed.
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2020 (11) TMI 1103
Criminal Conspiracy - Jurisdiction of investigation conducted - non-compliance of Section 6 of DSPE Act - cases are overwhelmingly and predominantingly of civil nature as purely bases on breach of contract (FSA) and the criminal prosecutions or not - CBI followed the doctrine of parity in filing the criminal prosecutions against the Petitioners - absence of Officers/official of NCL - charge of Criminal conspiracy Under Section 120-B Indian Penal Code could be made out or not.
HELD THAT:- Though Section 5 enables the Central Government to extend the powers and jurisdiction of Members of the DSPE beyond the Union Territories to a State, the same is not permissible unless, a State grants its consent for such an extension within the area of State concerned Under Section 6 of the DSPE Act. Obviously, the provisions are in tune with the federal character of the Constitution, which has been held to be one of the basic structures of the Constitution.
It could thus be seen, that the State of Uttar Pradesh has accorded a general consent for extension of powers and jurisdiction of the Members of DSPE, in the whole of State of Uttar Pradesh for investigation of offences under the Prevention of Corruption Act, 1988 and attempts, abetments and conspiracies in relation to all or any of the offence or offences committed in the course of the transaction and arising out of the same facts. The same is however with a rider, that no such investigation shall be taken up in cases relating to the public servants, under the control of the State Government, except with prior permission of the State Government - As such, for registration of FIR against the private individuals for the offences punishable under the Prevention of Corruption Act and other offences under the Indian Penal Code, committed in the course of the same transaction or arising out of the same facts, the Members of DSPE have all the powers and jurisdiction. As such, we find absolutely no merits in the appeals filed by the private individuals.
Insofar as the two public servants who have been undoubtedly working under the State Government are concerned, initially, they were not named in the FIR. However, their names surfaced during the course of investigation and thus sanction was granted for their prosecution Under Section 19 of the Prevention of Corruption Act vide order dated 31st May 2012, prior to filing of the charge-sheet. It is also not in dispute that Post-Facto consent was given by the State Government vide notification dated 7th September 2018, Under Section 6 of the DSPE Act to the authorities to investigate the public servants.
As early as in 1955, the question arose for consideration before this Court, as to whether an investigation carried out by a police officer below the rank of Deputy Superintendent of Police, Under Section 5(4) of the Prevention of Corruption Act, 1947, without the order of the Magistrate of First Class, was mandatory or directory? While holding that the provision is mandatory, this Court considered a question as to whether and to what extent, the trial which follows such investigation, is vitiated. The Court, in H.N. Rishbud and Inder Singh v. The State of Delhi [1954 (12) TMI 20 - SUPREME COURT] held that the cognizance and the trial cannot be set aside unless the illegality in the investigation can be shown to have brought about miscarriage of justice. It has been held, that the illegality may have a bearing on the question of prejudice or miscarriage of justice but the invalidity of the investigation has no relation to the competence of the court.
Recently, a bench of this Court consisting one of us (Khanwilkar J.) had an occasion to consider the aforesaid provisions of DSPE Act, in Kanwal Tanuj v. State of Bihar and Ors [2020 (4) TMI 910 - SUPREME COURT]. In the said case, the question arose, as to whether when an offence was committed in the Union Territory and one of the Accused was residing/employed in some other State outside the said Union Territory, the Members of DSPE had power to investigate the same, unless there was a specific consent given by the concerned State Under Section 6 of the DSPE Act - While considering the argument on behalf of the State, that such a consent was necessary for CBI to proceed with the investigation, this Court held that the Respondent-State having granted general consent in terms of Section 6 of the DSPE Act vide notification dated 19.02.1996, it was not open to the State to argue to the contrary.
In the present case, there are no pleadings by the public servants with regard to the prejudice caused to them on account of non-obtaining of prior consent Under Section 6 of the DSPE Act qua them specifically in addition to the general consent in force, nor with regard to miscarriage of justice.
There are no reason to interfere with the finding of the High Court with regard to not obtaining prior consent of the State Government Under Section 6 of the DSPE Act - matter remitted to the learned Single Judge for deciding the questions on its own merits - appeal disposed off.
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2020 (11) TMI 1088
Fraud - Sale by forgery of documents and signatures - preponderance of probabilities - case of the plaintiff is that the defendants sought her signatures on blank papers in the year 1990 under the guise of preparation and processing of documents for the purpose of getting the estate left behind by their father mutated in their names.
Whether the 1990 GPA and sale deeds dated 29.06.1990 and 03.07.1990 purported to have been executed by the plaintiff is a result of fraud and forgery or whether the same had been executed by the plaintiff herself?
HELD THAT:- The fact that the subject documents were executed by plaintiff and attested by Teja Singh has been established from record in the shape of evidence of PW4 as well as defendant No. 4. The signatures of Teja Singh were identified by DW2, who deposed that he was conversant with Urdu language and could identify the signature of Teja Singh, which was in Urdu language. Further, DW4 deposed that he used to pay land revenue to Teja Singh and received receipts from him. Moreover, the handwriting expert (DW7) had also compared the admitted signatures of Teja Singh with those on the disputed documents and opined that it was signed by him, while the expert produced by the plaintiff as PW10 had not examined the admitted signatures of Teja Singh. Therefore, the signatures of Teja Singh stood proved as per the opinion of expert (DW7) and stood corroborated by DW2 and DW4, independent witnesses.
The trial Court had justly placed the initial burden of proof upon the plaintiff as it was her case that the subject documents were forged or product of fraud and moreso because the documents bore her signature. The first appellate Court did not elaborate on that aspect. Even assuming that the burden had shifted upon the defendants, the witness identifying signatures of the dead attesting witness was examined by the defendants. Therefore, the documents stood proved and the burden was duly discharged by the defendants - The requirement regarding shifting of burden onto the defendants had been succinctly discussed in ANIL RISHI VERSUS GURBAKSH SINGH [2006 (5) TMI 515 - SUPREME COURT], wherein this Court had held that for shifting the burden of proof, it would require more than merely pleading that the relationship is a fiduciary one and it must be proved by producing tangible evidence.
Emphasis was laid on the entries made in the PW4 scribe’s register showing the 1990 GPA to have been executed prior to the sale deed and it was submitted that there is no logic in first giving GPA and then executing sale deed if the plaintiff was available to execute the aforesaid documents. However, the same is of no avail to the plaintiff as the 1990 GPA was in respect of all her land holdings, whereas the sale was made only in respect of land situate at Kalyanpur village - the primary reason for executing the 1990 GPA was that the plaintiff was not residing in Punjab at the relevant point of time and that she was old and weak, and thus unable to look after her property situate at Punjab. The stress laid upon the fact that a woman was appointed in her place is, therefore, a matter of surmises and conjectures.
The plaintiff’s denial of being acquainted with the attesting witnesses, is, also a ruse and not genuine. For, one of the attesting witnesses Teja Singh was a lamberdar of the village. A lamberdar’s job is to collect revenue in respect of the lands and issue receipts and as a practice, the lamberdar is called for attesting documents. Thus, when the plaintiff admittedly used to visit village frequently, her denial in knowing Teja Singh is farfetched. This is what two Courts had opined and being a possible view, no interference by the High Court was warranted in that regard.
Fraud in respect of sale deed dated 03.07.1990 - HELD THAT:- The trial Court analysed the testimony of DW3 and noted that he had clearly stated the plaintiff was known to him personally. He had deposed that sale deed was executed by the plaintiff in his presence and the same was for a sum of Rs. 86,000/. It was further held that though the witness failed to identify the photographs of the plaintiff, adverse inference cannot be drawn as the sale deed was executed in the year 1990 whereas the evidence was given in the year 2007.
The sale deed of 03.07.1990 had been attested by Teja Singh Lamberdar and Anoop Singh (DW3). The attesting witness (DW3) was examined and he had deposed that the said sale deed was executed by the plaintiff in his presence, as well as in presence of Teja Singh and defendant No. 3. He had denied presence of any other person. He stated that the sale consideration was paid at home directly and not in his presence. Indeed, he had failed to identify plaintiff in photographs - In the present cases, the disputed documents were executed in the year 1990 and the evidence of DW3 was recorded in the year 2007, after a passage of 17 long years. Thus, the High Court erroneously doubted the evidence of DW3 merely because he could not identify photographs of plaintiff and because the defendant No. 4 and DW3 did not mention each other’s presence at the time of execution.
Since the defendant No. 4 has not signed the sale deed as a vendee, his evidence cannot be discarded. In any case, the weight of evidence of DW3 remains unassailable. Therefore, the testimony of DW3 satisfies the requirements of the conditions required for a valid attestation - Since the attesting witness had proved the execution of the sale deeds, the primary onus upon the plaintiff had not shifted unto the defendants. Further, the plaintiff was obliged to rebut the positive evidence produced by the defendants regarding payment of consideration amount to the plaintiff; but also ought to have independently proved her case of nonreceipt of the consideration amount.
The diverse grounds urged by the plaintiff in disputing the 1990 GPA and the sale deeds dated 29.06.1990 and 03.07.1990 are, as observed hitherto, unsubstantiated and untenable.
The presumption in favour of a 30year old document is, therefore, a rebuttable presumption. Nothing prevented the plaintiff to rebut the presumption by leading appropriate evidence in order to disprove the same. Since the plaintiff failed to do so, the said document would be binding on the plaintiff. As a matter of fact, the parties had acted upon the terms of the said document without any demur since 1963 and it was, therefore, not open to resile therefrom at this distance of time. Hence, the trial Court was right in holding the 1963 GPA, to be a genuine document.
Time limitation - HELD THAT:- For invoking Section 17 of the 1963 Act, two ingredients have to be pleaded and duly proved. One is existence of a fraud and the other is discovery of such fraud. In the present case, since the plaintiff failed to establish the existence of fraud, there is no occasion for its discovery. Thus, the plaintiff cannot be extended the benefit under the said provision - the trial Court was in error to hold that the person who has disclosed the information was not examined by the plaintiff, when it had come on record through the testimony of Kultar Singh (DW2), that Rustam Singh expired before the suits came up for trial. If so, the finding of the High Court that the testimony of Rustam Singh strengthened the case of plaintiff is exfacie erroneous and manifestly wrong. In as much as, the said person was never examined before the Court in these proceedings. Further, the trial Court and the first appellate Court had erroneously assumed the date of function in December, 2001 in place of February, 2001.
It is settled that the standard of proof required in a civil dispute is preponderance of probabilities and not beyond reasonable doubt. In the present cases, though the discrepancies in the 1990 GPA are bound to create some doubt, however, in absence of any tangible evidence produced by the plaintiff to support the plea of fraud, it does not take the matter further. Rather, in this case the testimony of the attesting witness, scribe and other independent witnesses plainly support the case of the defendants. That evidence dispels the doubt if any; and tilt the balance in favour of the defendants - As to the title of the subsequent purchasers, since the 1990 GPA had been proved, there is no reason to doubt their bonafides.
The trial Court and the first appellate Court had appreciated the evidence properly and that view being a possible view, the High Court ought not to have disturbed the same in the second appeal and that too on surmises and conjectures - Appeal allowed.
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2020 (11) TMI 1081
Conversion of the land to industrial use - Whether the land in question which is situate at 12/6, Sector 27C, Faridabad and situated on the Mathura Road has been converted to industrial use? - HELD THAT:- In order to enable this Court to have an authoritative statement of the factual position from an official source entrusted with the authority to take the decision on conversion of land use, notice is issued to the State of Haryana, Haryana Shahari Vikas Pradhikaran (HSVP) and to the Director of Town and Country Planning. They shall before the next date of listing file affidavits indicating whether permission was granted for conversion of the land to industrial use.
The above direction is passed having regard to the provisions of the Punjab Scheduled Road and Controlled Area Restriction of Unregulated Development Rules 1965, more particularly Rules 26(A) to 26(F) - List the appeals on 2 December 2020.
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2020 (11) TMI 1021
Dishonor of Cheque - whether the course adopted by the High Court to remand the matter to the trial court after more than 30 years to cure the defect which goes to the root of the trial, though permissible in law, is justified? - offences by companies - Section 141 of the NI Act - HELD THAT:- A three-Judge Bench of this Court in ANEETA HADA VERSUS GODFATHER TRAVELS & TOURS (P.) LTD. [2012 (5) TMI 83 - SUPREME COURT] considered the question of conviction of the Directors in the absence of the Company in proceedings Under Section 138 of the Negotiable Instruments Act, 1881 For short, the NI Act as also in the proceedings under Information Technology Act, 2000. This Court held that Section 141 of the NI Act dealing with offences by companies contemplates that every person who at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly.
Application disposed off.
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2020 (11) TMI 1011
Withdrawal of a Resolution Plan post approval - HELD THAT:- Issue notice.
Till the next date of listing, there shall be an ad-interim stay of the operation of the impugned judgment and order of the National Company Law Appellate Tribunal in Company Appeal (AT)(Insolvency) No 653 of 2020.
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2020 (11) TMI 994
Refusal of the Allahabad High Court to quash the FIR - Power of police to investigate an issue, the substratum of which is sub judice before this Court in the civil appeals - long delay in lodging the complaint - purchase of 3 vehicles by respondent as against his claim to have purchased 7 vehicles - HELD THAT:- The question whether the 3rd Respondent-complainant purchased 3 vehicles as revealed by the VAHAN Portal of the Government or 7 vehicles as claimed by him in his complaint, is a question of fact which has to be established only in the course of investigation/trial. In a petition for quashing the FIR, the Court cannot go into disputed questions of fact.
Delay in lodging complaint - HELD THAT:- The mere delay on the part of the 3rd Respondent-complainant in lodging the complaint, cannot by itself be a ground to quash the FIR. The law is too well settled on this aspect to warrant any reference to precedents. Therefore, the second ground on which the Petitioner seeks to quash the FIR cannot be countenanced.
Effect of pendency of the Civil Appeals arising out of the order of the NGT and the interim order passed by this Court in the Civil Appeals for quashing of FIR - HELD THAT:-The applicants before the NGT did not seek any relief for themselves, as purchasers of vehicles. The reliefs sought by the applicants before the NGT were broad and general. This is why the NGT, by its final order dated 07.03.2019 directed only the CPCB to consider the initiation of prosecution in the light of the applicable statutory regime, while ordering the manufacturers to deposit ₹ 500 crores as compensation for the damage caused to the environment - the order of the NGT, passed on the applications filed by certain individuals not claiming as purchasers of vehicles, cannot be taken as an impediment for an individual who purchased cars from the manufacturers, to lodge a complaint, if he has actually suffered on account of any representation made by the manufacturers.
The proceedings before the NGT were not intended to address issues relating to individuals, such as (i) whether any emissions manipulation software, called in common parlance as 'defeat devices' were installed in the vehicles purchased by certain individuals; and (ii) whether any representation was made to the purchasers of the cars in which such devices had been installed, about the emission efficiency level of the cars - we are unable to agree with the contention of the learned Senior Counsel for the Petitioner that the substratum of the police complaint is something that is already the subject matter of adjudication before this Court in the appeals arising out of the order of the NGT. As a matter of fact, the High Court has been fair to the Petitioner, by granting protection against arrest till the filing of the report Under Section 173(2) of the Code. We do not think that the Petitioner can ask for anything more.
The SLP dismissed.
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2020 (11) TMI 983
Arbitral Award - whether the award can be allowed to be executed without hearing the application under section 34? - HELD THAT:- The pending decision in the present special leave petition, it would be highly iniquitous to permit the petitioner - Devas Multimedia Private Limited to obtain the fruits of the Award by execution under any law or convention after obtaining a stay from this Court restraining the respondent - Antrix Corporation Limited from pursuing its objections under section 34 of the Act against the Award.
The application filed by the respondent under Section 34 of the Act stands transferred to the Delhi High Court - The petitioner - Devas Multimedia Private Limited will be entitled to seek a deposit of the sum awarded or a part thereof before the Delhi High Court.
Application allowed.
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2020 (11) TMI 966
Seeking to terminate a contract of service with the Appellant - seeking to blacklist the Appellant from participating in any future tenders of the Corporation for a period of 5 years - HELD THAT:- This Court in Gorkha Security Services v. Government (NCT of Delhi) and Ors. [2014 (8) TMI 1081 - SUPREME COURT] has described blacklisting as being equivalent to the civil death of a person because blacklisting is stigmatic in nature and debars a person from participating in government tenders thereby precluding him from the award of government contracts. It has been held that It is a common case of the parties that the blacklisting has to be preceded by a show-cause notice. Law in this regard is firmly grounded and does not even demand much amplification. The necessity of compliance with the principles of natural justice by giving the opportunity to the person against whom action of blacklisting is sought to be taken has a valid and solid rationale behind it. With blacklisting, many civil and/or evil consequences follow. It is described as "civil death" of a person who is foisted with the order of blacklisting. Such an order is stigmatic in nature and debars such a person from participating in government tenders which means precluding him from the award of government contracts.
In the present case, the factum of service of the show cause notice dated 10.04.2018 by the Corporation upon the Appellant is not in dispute. Rather, what Shri Banerji has argued on behalf of the Appellant is that the contents of the said show cause notice were not such that the Appellant could have anticipated that an order of blacklisting was being contemplated by the Corporation - Gorkha Security Services is a case where this Court had to decide whether the action of blacklisting could have been taken without specifically proposing/contemplating such an action in the show-cause notice.
A clear legal position emerges that for a show cause notice to constitute the valid basis of a blacklisting order, such notice must spell out clearly, or its contents be such that it can be clearly inferred therefrom, that there is intention on the part of the issuer of the notice to blacklist the noticee. Such a clear notice is essential for ensuring that the person against whom the penalty of blacklisting is intended to be imposed, has an adequate, informed and meaningful opportunity to show cause against his possible blacklisting.
The action of blacklisting was neither expressly proposed nor could it have been inferred from the language employed by the Corporation in its show cause notice. After listing 12 clauses of the "Instruction to Bidders", which were part of the Corporation's Bid Document dated 25.11.2016, the notice merely contains a vague statement that in light of the alleged leakage of question papers by the Appellant, an appropriate decision will be taken by the Corporation. In fact, Clause 10 of the same Instruction to Bidders Section of the Bid Document, which the Corporation has argued to be the source of its power to blacklist the Appellant, is not even mentioned in the show cause notice. While the notice clarified that the 12 clauses specified in the notice were only indicative and not exhaustive, there was nothing in the notice which could have given the Appellant the impression that the action of blacklisting was being proposed. This is especially true since the Appellant was under the belief that the Corporation was not even empowered to take such an action against it and since the only Clause which mentioned blacklisting was not referred to by the Corporation in its show cause notice - mere existence of a Clause in the Bid Document, which mentions blacklisting as a bar against eligibility, cannot satisfy the mandatory requirement of a clear mention of the proposed action in the show cause notice. The Corporation's notice is completely silent about blacklisting and as such, it could not have led the Appellant to infer that such an action could be taken by the Corporation in pursuance of this notice. Had the Corporation expressed its mind in the show cause notice to black list, the Appellant could have filed a suitable reply for the same. Therefore, the show cause notice dated 10.04.2018 does not fulfil the requirements of a valid show cause notice for blacklisting.
The blacklisting order passed by the Corporation is contrary to the principles of natural justice - Having regard to the peculiar facts and circumstances of the present case, it is deemed appropriate not to remit the matter to the Corporation for fresh consideration - appeal allowed.
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2020 (11) TMI 965
Grant of Bail - Illegal arrest and wrongful detained by the Station House Officer (SHO) at Alibaug Police Station in the district of Raigad in Maharashtra in relation to a First Information Report registered on 5 May 2018 Under Sections 306 and 34 of the Indian Penal Code, 1860 in spite of an earlier closure report which was accepted by the Magistrate - HELD THAT:- While considering an application for the grant of bail Under Article 226 in a suitable case, the High Court must consider the settled factors which emerge from the precedents of this Court. These factors can be summarized as follows:
(i) The nature of the alleged offence, the nature of the accusation and the severity of the punishment in the case of a conviction;
(ii) Whether there exists a reasonable apprehension of the Accused tampering with the witnesses or being a threat to the complainant or the witnesses;
(iii) The possibility of securing the presence of the Accused at the trial or the likelihood of the Accused fleeing from justice;
(iv) The antecedents of and circumstances which are peculiar to the Accused;
(v) Whether prima facie the ingredients of the offence are made out, on the basis of the allegations as they stand, in the FIR; and
(vi) The significant interests of the public or the State and other similar considerations.
Human liberty is a precious constitutional value, which is undoubtedly subject to Regulation by validly enacted legislation. As such, the citizen is subject to the edicts of criminal law and procedure. Section 482 recognizes the inherent power of the High Court to make such orders as are necessary to give effect to the provisions of the Code of Criminal Procedure "or prevent abuse of the process of any Court or otherwise to secure the ends of justice". Decisions of this Court require the High Courts, in exercising the jurisdiction entrusted to them Under Section 482, to act with circumspection. In emphasising that the High Court must exercise this power with a sense of restraint, the decisions of this Court are founded on the basic principle that the due enforcement of criminal law should not be obstructed by the Accused taking recourse to artifices and strategies - The need to ensure the fair investigation of crime is undoubtedly important in itself, because it protects at one level the rights of the victim and, at a more fundamental level, the societal interest in ensuring that crime is investigated and dealt with in accordance with law. On the other hand, the misuse of the criminal law is a matter of which the High Court and the lower Courts in this country must be alive. In the present case, the High Court could not but have been cognizant of the specific ground which was raised before it by the Appellant that he was being made a target as a part of a series of occurrences which have been taking place since April 2020. The specific case of the Appellant is that he has been targeted because his opinions on his television channel are unpalatable to authority. Whether the Appellant has established a case for quashing the FIR is something on which the High Court will take a final view when the proceedings are listed before it but we are clearly of the view that in failing to make even a prima facie evaluation of the FIR, the High Court abdicated its constitutional duty and function as a protector of liberty. Courts must be alive to the need to safeguard the public interest in ensuring that the due enforcement of criminal law is not obstructed. The fair investigation of crime is an aid to it. Equally it is the duty of courts across the spectrum - the district judiciary, the High Courts and the Supreme Court - to ensure that the criminal law does not become a weapon for the selective harassment of citizens. Courts should be alive to both ends of the spectrum - the need to ensure the proper enforcement of criminal law on the one hand and the need, on the other, of ensuring that the law does not become a ruse for targeted harassment. Liberty across human eras is as tenuous as tenuous can be. Liberty survives by the vigilance of her citizens, on the cacophony of the media and in the dusty corridors of courts alive to the Rule of (and not by) law. Yet, much too often, liberty is a casualty when one of these components is found wanting.
The remedy of bail is the "solemn expression of the humaneness of the justice system"14. Tasked as we are with the primary responsibility of preserving the liberty of all citizens, we cannot countenance an approach that has the consequence of applying this basic Rule in an inverted form. We have given expression to our anguish in a case where a citizen has approached this Court. We have done so in order to reiterate principles which must govern countless other faces whose voices should not go unheard.
This Court had directed the release of all the three Appellants on bail pending the disposal of the proceedings before the High Court. The following operative directions were issued on 11 November 2020:
The High Court was in error in rejecting the applications for the grant of interim bail. We accordingly order and direct that Arnab Manoranjan Goswami, Feroz Mohammad Shaikh and Nitesh Sarda shall be released on interim bail, subject to each of them executing a personal bond in the amount of ₹ 50,000 to be executed before the Jail Superintendent. They are, however, directed to cooperate in the investigation and shall not make any attempt to interfere with the ongoing investigation or with the witnesses - The concerned jail authorities and the Superintendent of Police, Raigad are directed to ensure that this order is complied with forthwith.
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2020 (11) TMI 790
Refund of contract consideration/earnest money - payment of interest for the period from 08.11.1994 to 19.05.1998 - rate of interest @ 10% p.a. or 12% p.a. - HELD THAT:- In this case, conduct of the Board betrays a callous and indifferent attitude, which in effect is that if Asiatic Steel wished for its money to be returned, it had to approach the court. This was despite its knowledge that at least three other identically placed entities had asked for return of money and, upon approaching the court, were refunded the amounts given by them promptly. In view of these facts, nothing prevented the Board from deciding to refund the amount, without forcing Asiatic Steel to approach the court.
This court notes that the High Court directed payment of interest for the entire period (i.e. starting from 08.11.1994 and ending on 19.05.1998). However, it is evident that Asiatic Steel had not paid the entire amount on 08.11.1994; in fact the sum of $1,153,000 /- i.e. the principal consideration, excluding the earnest money deposit, was deposited on 24.03.1995. Therefore, the impugned judgment erred in directing payment of interest on the entire amount from 08.11.1994; instead, the direction to pay interest on ₹ 3,61,20,000/- shall operate with effect from 22.03.1995 to 19.05.1998.
The appeal allowed in part.
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2020 (11) TMI 630
Cancellation of Bail granted - Smuggling - Contraband item - Section 36A(1)(d) of NDPS Act for offences under Section 8(c) punishable under Section 21(c), 22(c), 23(c), 28 and 29 read with Section 38 of the NDPS Act - HELD THAT:- The appellants’ car by which they were travelling from Omerga to Hyderabad on 11.01.2018 was intercepted by the D.R.I. officials of Hyderabad Zonal Unit near the Kamkole near Hyderabad and from the possession of the appellants 45.874 Kgs of narcotic substance was recovered. Appellants’ in the statement recorded under Section 67 of NDPS Act have stated that they have started from Omerga to Chennai in the car in which the narcotic substance was being transported. The remand of the appellants was extended from time to time till 12.07.2018 by Special Court, Hyderabad. On 11.01.2018, recovery of narcotic substance was also made at Omerga in the factory premises of M/s Pragati Electrical Work, MIDC Omerga, Maharashtra, on which D.R.I. has registered a case and a combined complaint dated 06.07.2018 was submitted by Intelligence Officer, D.R.I., Bangalore before the Special Court, Omerga. Complaint under Section 36A(1)(d) of NDPS Act for offences under Section 8(c) punishable under Section 21(c), 22(c), 23(c), 28 and 29 read with Section 38 of the NDPS Act has been filed dated 06.07.2018 by Intelligence Officer, D.R.I. in Omerga Court.
It is true that two offences, one at Hyderabad being at the instance of D.R.I., Hyderabad namely D.R.I. 48 of 2018 was registered and another case Special NDPS No. 17 of 2018 by the D.R.I., Bangalore, Zonal Unit. A combined complaint taking care of both the offences was filed before the Special Court, Omerga as noted above wherein offences committed by the accused were also inquired and dealt with. There is ample material in the complaint that the transportation of narcotic substance started from Omerga, Maharashtra and was being allegedly to be taken to Chennai and intercepted at Hyderabad. The complaint, which has been brought on the record gives the detailed facts including the journey and the interception of appellants at Hyderabad. The combined complaint having been filed on 06.07.2018, i.e., well within 180 days, the High Court did not commit any error in cancelling the default bail granted to the appellants on 12.07.2018.
There is no ground for interfering with the impugned judgment /order of the High Court - All the appeals are dismissed subject to liberty granted to the appellants.
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2020 (11) TMI 555
Review Petition - Restraint on transfer of disputed property - scope and ambit of the Court’s power under Section 114 read with Order 47 Rule 1 CPC - HELD THAT:- To appreciate the scope of review, it would be proper for this Court to discuss the object and ambit of Section 114 CPC as the same is a substantive provision for review when a person considering himself aggrieved either by a decree or by an order of Court from which appeal is allowed but no appeal is preferred or where there is no provision for appeal against an order and decree, may apply for review of the decree or order as the case may be in the Court, which may order or pass the decree. From the bare reading of Section 114 CPC, it appears that the said substantive power of review under Section 114 CPC has not laid down any condition as the condition precedent in exercise of power of review nor the said Section imposed any prohibition on the Court for exercising its power to review its decision. However, an order can be reviewed by a Court only on the prescribed grounds mentioned in Order 47 Rule 1 CPC.
An application for review is more restricted than that of an appeal and the Court of review has limited jurisdiction as to the definite limit mentioned in Order 47 Rule 1 CPC itself. The powers of review cannot be exercised as an inherent power nor can an appellate power can be exercised in the guise of power of review.
The High Court has clearly overstepped the jurisdiction vested in the Court under Order 47 Rule 1 CPC. No ground as envisaged under Order 47 Rule 1 CPC has been made out for the purpose of reviewing the observations made in para 20. It is required to be noted and as evident from para 20, the High Court made observations in para 20 with respect to possession of the plaintiffs on appreciation of evidence on record more particularly the deposition of the plaintiff (PW1) and his witness PW2 and on appreciation of the evidence, the High Court found that the plaintiff is in actual possession of the said house. Therefore, when the observation with respect to the possession of the plaintiff were made on appreciation of evidence/material on record, it cannot be said that there was an error apparent on the face of proceedings which were required to be reviewed in exercise of powers under Order 47 Rule 1 CPC.
The High Court has committed a grave error in allowing the review application and deleting the observations made in para 20 of its order dated 10.12.2013 passed in First Appeal No.17.04.2005 in exercise of powers under Section 114 read with Order 47 Rule 1 CPC. Under the circumstances the impugned order is unsustainable and deserves to be quashed and set aside.
The impugned order passed by the High Court of Madhya Pradesh at Gwalior is hereby quashed and set aside - appeal allowed.
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2020 (11) TMI 189
Jurisdiction of the Consumer Forum / Commission - Buyers of Flat - consumer or not - applicability and effect of the RERA Act - statutory remedies available under the Haryana Cooperative Societies Act, 1984 as against those under the CP Act - effect of registration of the Project under the RERA Act - whether in the face of Section 156 of the Tamil Nadu Cooperative Societies Act, 1983 the concerned persons could avail remedies under the CP Act? - HELD THAT:- It has consistently been held by this Court that the remedies available under the provisions of the CP Act are additional remedies over and above the other remedies including those made available under any special statutes; and that the availability of an alternate remedy is no bar in entertaining a complaint under the CP Act.
In terms of Section 18 of the RERA Act, if a promoter fails to complete or is unable to give possession of an apartment duly completed by the date specified in the agreement, the Promoter would be liable, on demand, to return the amount received by him in respect of that apartment if the allottee wishes to withdraw from the Project. Such right of an allottee is specifically made "without prejudice to any other remedy available to him". The right so given to the allottee is unqualified and if availed, the money deposited by the allottee has to be refunded with interest at such rate as may be prescribed. The proviso to Section 18(1) contemplates a situation where the allottee does not intend to withdraw from the Project. In that case he is entitled to and must be paid interest for every month of delay till the handing over of the possession. It is upto the allottee to proceed either Under Section 18(1) or under proviso to Section 18(1). - It is, therefore, required to be considered whether the remedy so provided under the RERA Act to an allottee is the only and exclusive modality to raise a grievance and whether the provisions of the RERA Act bar consideration of the grievance of an allottee by other fora.
Proviso to Section 71(1) of the RERA Act entitles a complainant who had initiated proceedings under the CP Act before the RERA Act came into force, to withdraw the proceedings under the CP Act with the permission of the Forum or Commission and file an appropriate application before the adjudicating officer under the RERA Act. The proviso thus gives a right or an option to the concerned complainant but does not statutorily force him to withdraw such complaint nor do the provisions of the RERA Act create any mechanism for transfer of such pending proceedings to authorities under the RERA Act. As against that the mandate in Section 12(4) of the CP Act to the contrary is quite significant - Again, insofar as cases where such proceedings under the CP Act are initiated after the provisions of the RERA Act came into force, there is nothing in the RERA Act which bars such initiation. The absence of bar Under Section 79 to the initiation of proceedings before a fora which cannot be called a Civil Court and express saving Under Section 88 of the RERA Act, make the position quite clear. Further, Section 18 itself specifies that the remedy under said Section is "without prejudice to any other remedy available". Thus, the parliamentary intent is clear that a choice or discretion is given to the allottee whether he wishes to initiate appropriate proceedings under the CP Act or file an application under the RERA Act.
It is true that some special authorities are created under the RERA Act for the Regulation and promotion of the real estate sector and the issues concerning a registered project are specifically entrusted to functionaries under the RERA Act. But for the present purposes, we must go by the purport of Section 18 of the RERA Act. Since it gives a right "without prejudice to any other remedy available', in effect, such other remedy is acknowledged and saved subject always to the applicability of Section 79 - Section 100 of 2019 Act is akin to Section 3 of the CP Act and Section 107 saves all actions taken or purported to have been taken under the CP Act. It is significant that Section 100 is enacted with an intent to secure the remedies under 2019 Act dealing with protection of the interests of Consumers, even after the RERA Act was brought into force - the proceedings initiated by the complainants in the present cases and the resultant actions including the orders passed by the Commission are fully saved.
Appeal dismissed.
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