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Indian Laws - Case Laws
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2023 (3) TMI 1572
Quashing of F.I.R. No. 430 dated 16.10.2017 under Sections 420, 120- B and 506 of the Indian Penal Code, 1860 - Civil dispute or criminal offence - appellant's failure to execute the sale deed as per the Agreement to Sell - HELD THAT:- A breach of contract does not give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction. Merely on the allegation of failure to keep up promise will not be enough to initiate criminal proceedings. From the facts available on record, it is evident that the respondent No. 2 had improved his case ever since the first complaint was filed in which there were no allegations against the appellant rather it was only against the property dealers which was in subsequent complaints that the name of the appellant was mentioned.
The entire idea seems to be to convert a civil dispute into criminal and put pressure on the appellant for return of the amount allegedly paid. The criminal Courts are not meant to be used for settling scores or pressurise parties to settle civil disputes. Wherever ingredients of criminal offences are made out, criminal courts have to take cognizance. The complaint in question on the basis of which F.I.R. was registered was filed nearly three years after the last date fixed for registration of the sale deed. Allowing the proceedings to continue would be an abuse of process of the Court.
Conclusion - i) Civil disputes arising out of breach of contract cannot be converted into criminal cases by filing complaints under Sections 420, 120-B, and 506 IPC without clear evidence of fraud or criminal conspiracy. ii) The Court has the power to quash F.I.R.s and criminal proceedings where they constitute an abuse of process or are founded on non-cognizable offences.
The impugned order passed by the High Court deserves to be set aside - Petition allowed.
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2023 (3) TMI 1567
Jurisdiction - Whether the order passed by the Armed Forces Tribunal would be amenable to challenge in the writ jurisdiction Under Article 226 of the Constitution of India before any High Court? - HELD THAT:- Often many jurisprudential principles of other tribunals cannot be imported into the decisions of the Armed Forces Tribunal. The Armed Forces have their own Rules and procedures, and if there is proper exercise of jurisdiction in accordance with the norms of the Armed Forces, the High Court or this Court have been circumspect in interfering with the same, keeping in mind the significance of the role performed by the Armed Forces.
The principles of basic structure have withstood the test of time and are emphasized in many judicial pronouncements as an ultimate test. This is not something that can be doubted. That being the position, the self-restraint of the High Court Under Article 226 of the Constitution is distinct from putting an embargo on the High Court in exercising this jurisdiction Under Article 226 of the Constitution while judicially reviewing a decision arising from an order of the Tribunal.
On the legislature introducing the concept of "Tribunalisation" (one may say that this concept has seen many question marks vis-à-vis different tribunals, though it has also produced some successes), the same was tested in L. Chandra Kumar3 case [1997 (3) TMI 90 - SUPREME COURT] before a Bench of seven Judges of this Court. Thus, while upholding the principles of "Tribunalisation" Under Article 323A or Article 323B, the Bench was unequivocally of the view that decisions of Tribunals would be subject to the jurisdiction of the High Court Under Article 226 of the Constitution, and would not be restricted by the 42nd Constitutional Amendment which introduced the aforesaid two Articles.
This should have put the matter to rest, and no Bench of less than seven Judges could have doubted the proposition. The need for the observations in the five-Judges' Bench in Rojer Mathew3 case [2019 (11) TMI 716 - SUPREME COURT (LB)] qua the Armed Forces Tribunal really arose because of the observations made in Major General Shri Kant Sharma and Anr.3 [2015 (11) TMI 1316 - SUPREME COURT].
Thus, it is, reiterated and clarified that the power of the High Court Under Article 226 of the Constitution is not inhibited, and superintendence and control under Article 227 of the Constitution are somewhat distinct from the powers of judicial review Under Article 226 of the Constitution.
Conclusion - The power of judicial review under Article 226 is part of the Constitution's basic structure and cannot be restricted by the Armed Forces Tribunal Act.
Appeal disposed off.
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2023 (3) TMI 1559
Dacoity - challenge to sentence passed by the sentencing court - impugned judgment is based on conjectures and surmises - convicting court did not record the statement under section 313 of the Code properly which violates the fundamental principles of natural justice - HELD THAT:- The convicting court was not justified in convicting the appellants for the offence punishable under section 395 IPC. The prosecution could prove that the appellant Bharat Kumar Goswami had participated in snatching of bag from the complainant Manish Aggarwal PW1 and subsequently recoveries as detailed herein above were affected at the instance of the appellants and convict Kanhaie Jha. The impugned judgment convicting the appellants for the offence punishable under section 395 was passed on factually and legally unsustainable surmises and assumptions and without adequate support of evidence. It is proved that the appellant Jitender @ Jitu and Azad @ Gaurav received/retained the stolen property. The prosecution, from the quality and quantity of evidence, could only prove guilt of the appellant Bharat Kumar Goswami for offence punishable under section 379/356/34 IPC and guilt of the appellants Jitender @ Jitu and Azad @ Gaurav for the offence punishable under section 411 IPC.
The Criminal Appeals bearing no 593/2022, 354/2022 and 367/2022 preferred by the appellants Azad @ Gaurav, Jitender @ Jitu and Bharat Kumar Goswami, respectively to challenge the impugned judgment passed by the convicting court whereby appellants along with the convict Kanhaie Jha were convicted for the offence under section 395 IPC is partly allowed. The appellant Bharat Kumar Goswami is convicted for offences punishable under section 379/356 IPC and the appellants Jitender @ Jitu and Azad @ Gaurav are Convicted for offence punishable under section 411 IPC.
The order on sentence dated 04.06.2022 passed by the sentencing court is also modified. The appellant Bharat Kumar Goswami is sentenced to undergo rigorous imprisonment for a period of two years along with fine of Rs. 2000/-in default of payment of fine to further undergo simple imprisonment of two months for offence punishable under section 379 IPC and to undergo rigorous imprisonment for a period of six months along with fine of Rs. 500/-in default of payment of fine to further undergo simple imprisonment of one month for offence punishable under section 356 IPC. Both the sentences shall run concurrently. The benefit of section 428 of the Code is extended to the appellant Bharat Kumar Goswami.
The appellants Jitender @ Jitu and Azad @ Gaurav are individually sentenced to undergo rigorous imprisonment for a period of two years along with fine of Rs. 2000/-in default of payment of fine to further undergo simple imprisonment of two months for the offence punishable under section 411 IPC. The benefit of section 428 of the Code is extended to the appellants Jitender @ Jitu and Azad @ Gaurav.
Applications disposed off.
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2023 (3) TMI 1557
Condonation of delay in filing appeal - Whether delay in filing of an appeal under Section 21 of the National Investigation Agency Act, 2008 beyond 90 days can be condoned under Section 5 of the Limitation Act, 1963? - HELD THAT:- Baburam Upadhyay [1960 (11) TMI 116 - SUPREME COURT] has considered the provisions of Section 116A (1) of the Representation of People Act, 1951 and held that, since the period of limitation was different from that of the Code of Civil Procedure, and Representation of People Act, 1951 being a special law, the period of limitation prescribed in Representation of People Act, 1951 shall apply. However, it has held that, Section 12 of the Limitation Act, 1963 would apply to exclude the time taken by the appellant to obtain the certified copy of the impugned order.
Hukudev Narain Yadav [1973 (12) TMI 92 - SUPREME COURT] has considered the issue as to whether Section 4 to 24 of the Limitation Act, 1963 stood excluded by the provisions of the Representation of People Act, 1951 or not. It has held that, Court has to see whether scheme of special law, nature of remedy of law show that the legislature intended to limit the provisions of the Limitation Act, 1963. Even if the special law does not exclude the provisions of the Limitation Act, 1963 by express reference, Court has to examine whether and to what extent the provisions of nature, subject matter and scheme for special law exclude their operation.
The time period that has been stipulated in Section 21 of the Act of 2008 is the bone of contention in the present proceedings since the appellants are seeking to prefer an appeal which is beyond 90 days from the date of the impugned judgement and order of the Special Court. The impugned judgement and order of the Special Court is otherwise appealable in view of the same having finally disposed of the trial, convicting the appellants and sentencing the appellants to imprisonment. - It has been recognised by different authorities that, the doctrine of limitation is founded on considerations of public policy and expediency. Statutes of limitation do not create new obligations but only provide periods within which action must be brought to Court. The object of limitation statute is to compel litigants to be diligent in seeking remedies in Courts of law by prohibiting stale claims. The law of limitation does not destroy the primary or substantive right itself but puts an end to the accessory right of action. The judicial remedy is barred but the substantive right itself survives and continues to be available. The rules of limitation are not meant to destroy the rights of the parties.
Section 12 of the Limitation Act, 1963 is founded on the principle that no party can be prejudiced by an act of Court. In such context, where the Court has delayed the delivery of the certified copy of its judgement or order, the period taken by the Court to deliver the certified copy of its judgement or order is excluded from the calculation of the period of limitation prescribed by the statute for preferring an appeal.
Conclusion - An appeal sought to be filed after expiry of the period of 90 days from the date of the judgement or order or sentence, under Section 21 of the Act of 2008 cannot be entertained. The period of 90 days from the date of the judgement or order or sentence has to be calculated on the principles analogous to Section 12 of the Limitation Act, 1963.
Application dismissed as not maintainable.
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2023 (3) TMI 1540
Seeking appointment of an Arbitrator for adjudicating the disputes that have arisen between the parties in relation to the Purchase Orders that were placed upon the petitioner by the respondent - non-payment of alleged dues by the respondent - Section 11 of the Arbitration and Conciliation Act, 1996 - HELD THAT:- A reading of Section 18(3) of the MSMED Act would show that where the conciliation proceedings initiated under sub-Section 2 of Section 18 of the MSMED Act are not successful and stand terminated without settlement between the parties, the Facilitation Council is empowered to either itself take up the dispute for arbitration or refer it to any institution or Centre providing alternate dispute resolution services for such arbitration. The provision further states that upon taking up of arbitration by the Facilitation Council itself or upon such reference to any institution or centre, the provisions of the Arbitration Act shall apply to the dispute as if the arbitration was in pursuance of an arbitration agreement referred to in sub-Section 1 of Section 7 of the Arbitration Act. The use of the word “then” clearly indicates the intent of the legislature that it is only when the arbitration proceedings are initiated in form of the Facilitation Council itself taking it up or referring the dispute to any institution or Centre providing alternate dispute resolution services for such arbitration that the provisions of the Arbitration Act are to apply.
The Supreme Court in Gujarat State Civil Supplies Corporation Limited v. Mahakali Foods Pvt. Ltd. [2022 (11) TMI 91 - SUPREME COURT] observed that the provisions of the Arbitration Act would apply only after the process of Conciliation initiated by the Facilitation Council under Section 18(2) of the MSMED Act fails and the Council either itself takes up the dispute for arbitration or refers it to any institution or Centre for such arbitration as contemplated under Section 18(3) of the MSMED Act.
Section 11(6) of the Arbitration Act can be invoked only where inter-alia the institution which has been entrusted to perform any function under the appointment procedure agreed upon by the parties fails to perform such function. The existence of an arbitration agreement as defined in Section 7 of the Arbitration Act, therefore, is a sine qua non for exercise of jurisdiction under Section 11(6) of the Arbitration Act. It is only on the failure of the institution to act in accordance with a duty cast upon it under the appointment procedure agreed upon in the arbitration agreement as provided in Section 7(1) of the Arbitration Act, that the jurisdiction of the Court under Section 11(6) of the Arbitration Act can be invoked.
In the present case, as admittedly there is no arbitration agreement between the parties, the present petition is not maintainable.
The present petition is, accordingly, dismissed.
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2023 (3) TMI 1537
Seeking grant of regular bail - several injuries, dangerous to life or not - offence under Section 307 of IPC, 1860 or not - HELD THAT:- The petitioner is on bail in 5 cases and sentence stands suspended in the case where he has been convicted in FIR No. 302 dated 23.11.2016 under Sections 307, 452, 323, 324, 325, 427, 148, 149, 506, 369 of IPC, registered at Police Station Jodhewal, this Court cannot lose sight of the fact that after a lapse of more than two years, trial is proceeding at a snail pace at the hands of prosecution.
A Division Bench of this High Court in RAJENDER SINGH VERSUS STATE OF HARYANA [2022 (1) TMI 1471 - PUNJAB AND HARYANA HIGH COURT] has held that a right under Article 21 of the Constitution of India includes right to speedy trial and expeditious disposal which is also in public interest.
This Court would go little further to consider that there is a difference between grant of bail under Section 439 and 438 of Cr.P.C., as compared to suspension of sentence under Section 389 of Cr.P.C.. In the case of suspension of sentence, the conviction order is already there whereas while considering the petition either under Section 438 or 439 Cr.P.C., there may be presumption of innocence which in fact is a fundamental postulate of criminal jurisprudence - This Court is conscious of the fact that the petitioner in the instant case is a prior convict and involved in other FIRs as has been pointed out by learned State counsel.
No doubt, at the time of granting bail, the criminal antecedents of the petitioner are to be looked into but at the same time it is equally true that the appreciation of evidence during the course of trial has to be looked into with reference to the evidence in that case alone and not with respect to the evidence in the other pending cases. In such eventuality, strict adherence to the rule of denial of bail on account of pendency of other cases/convictions in all probability would lend the petitioner in a situation of denial the concession of bail - If such proposition is accepted and applied at least in this case wherein the petitioner has already faced 2 years, 3 months and 15 days of incarceration, keeping the petitioner inside is clearly violative of right to speedy trial under Article 21 of the Constitution of India, which is likely to take long time being at the initial stage after a lapse of considerable time.
The present petition is allowed and the petitioner is directed to be released on regular bail on his furnishing bail and surety bonds to the satisfaction of the Chief Judicial Magistrate/Duty Magistrate, concerned.
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2023 (3) TMI 1533
Grant of benefit of an Emergency Credit Line Guarantee Scheme (ECLGS) to the petitioners - whether the petitioners are entitled to grant of the benefit of the ECLGS and whether the respondent no. 3 (R3) which is a private Financial Institution comes within the jurisdiction of a Writ Court for issue of a writ of Mandamus against the respondent no. 3? - HELD THAT:- The respondent FI had a duty and an obligation to extend the benefit of the ECLGS to the petitioners at the relevant point of time and its inaction and failure to do so makes the impugned action amenable to interference by the Writ Court. The reasons for which the writ petition has been held to be eligible are also to be referred to in this context. This Court had passed the judgment on substantially similar facts in OLIVE TREE RETAIL PRIVATE LIMITED AND ORS. VERSUS SOUTH INDIAN BANK LIMITED AND ORS. [2023 (1) TMI 1423 - CALCUTTA HIGH COURT] with reference to the ECLGS. The material shown to this Court by the respondent does not persuade this Court to come to a different view in the present facts.
Petition is accordingly allowed by directing the R3 Financial Institution to consider grant of benefit of the ECLGS to the petitioners in terms of the Resolution Framework/s circulated by the RBI and the Guidelines published by the NCGTC on 30.3.2022 with regard to the ECLGS. The eligibility of the petitioners shall be considered in accordance with the relevant ECLGS and the Resolution Framework which would apply to the petitioners’ case.
The writ petition is disposed of.
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2023 (3) TMI 1532
Dishonour of Cheque - Grant of interim compensation under Section 143A of the Negotiable Instrument Act, 1881 - non-speaking order - non-application of mind - violation of principles of natural justice - exercise of extraordinary jurisdiction of this Court - HELD THAT:- Section 143A of the N.I. Act was inserted by Act 20 of 2018 and was brought into effect from 01.09.2018. It is also important to understand the intent behind introduction of said section to the Act as there is a huge backlog of pendency of cases pertaining to dishonour of cheques and it is because of delaying tactics of the drawers of cheques due to easy filing of appeals and obtaining stay on proceedings. Thus, it is necessary to provide relief during pendency of the proceedings to the complainants who are waiting for years on account of undue delays and dilatory tactics, the provision has been inserted by amending the Act.
It is settled position of law that, when there is a discretionary power, the Court has to exercise it by assigning proper reasons of the conclusion, failing which the exercise of discretion will become arbitrary.
Whether case is made out for exercising extraordinary jurisdiction of this Court warranting interference with the impugned order? - HELD THAT:- This Court is of considered view that, the discretion having not been properly exercised by the trial Court while awarding 20% amount of compensation. The learned trial Court has not assigned any reasons as to why the complainant has been awarded interim compensation @ 20% of the cheque amount and not less than 20%. It is the discretion of the Court to award interim compensation from 1% to 20%, but subject to recording of proper reasons. On the facts of the present case, the learned trial Court has rightly did not discussed with the issue of defense raised by the accused herein as the question of disputed facts require to be tried after full fledge of the trial. However, the trial Court while determining the percentage of interim compensation, he or she should have assigned proper reasons stating that why the interim compensation amount @ 20% is required to be paid by the accused. It is mandatory on the part of the trial Court that whenever the Court exercise its jurisdiction under Section 143A of the Act, it shall record reasons as to why it directs the accused person to pay the interim compensation to the complainant. There is no straight jacket formula for assigning reasons, but it may vary case to case and depends upon facts of each case.
This Court is in complete agreement with the contention raised by learned counsel for the applicants that, discretionary order without reasons is not sustainable in the eye of law. This Court is of considered opinion that, the impugned order is devoid of any reasons as conclusion arrived at by the trial Court for awarding 20% of the cheque amount, is without assigning proper and sufficient reasons and discretionary power having not been properly exercised by the Court, as a result, the impugned order is not sustainable in the eye of law.
The impugned order dated 13.04.2022 is quashed and the matter is remanded back to the trial Court with a direction to decide the application Exh.14 within a period of 30 days from the date of receipt of this order, in accordance with law - Appeal allowed by way of remand.
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2023 (3) TMI 1531
Dishonour of Cheque - legally enforceable debt - rebuttal of presumption - Section 139 of the NI Act - HELD THAT:- Under Section 138 of the NI Act, where a cheque is issued by the drawer in the discharge of any debt or any other liability is returned by the bank unpaid, because the amount standing to the credit of that account is insufficient to honour the cheque, the said person is deemed to have committed an offence, subject to proviso to Section 138 which provides that the cheque should have been presented to the bank within the period of six months from the date of which it is drawn or within the period of its validity, whichever is earlier.
The payee must also make a demand for the payment of the said amount by giving a notice in writing to the drawer of the cheque within 30 days of the receipt of the information by him from the bank regarding the return of the cheque unpaid, despite this demand, the drawer fails to make the payment within fifteen days of the receipt of the notice, a cause of action arises for prosecuting him for the offence punishable under Section 138 of the Act. Section 142 provides that the court shall take cognizance of an offence punishable under Section 138 of the Act upon receipt of a complaint in writing made by the payee or, as the case may be, the holder in due course of the cheque. Such complaint must be made within one month of the date on which the cause of action arises under Clause (c) of the proviso to Section 138. However, discretion is given to the court to take cognizance of the complaint even after the prescribed period, if the complainant satisfies the court that he had sufficient cause for not making the complaint within such period.
What is emerging from the materials on record is that the signatures of the petitioner, Pradip Patangia on the cheque cheque bearing No. 305949, dated 16.08.2016, drawn on SBI, and Gul Kumar Kalita on cheque cheque bearing No. 000014 dated 16.08.2016, drawn on the HDFC Bank, Tezpur Branch are not disputed by the petitioners. The petitioners have also not disputed that there are transactions between the parties. Therefore, once the petitioners have admitted that the cheques bear their signature there is presumption that there exists a legally enforceable debt or liability under Section 139 of the N.I. Act. However, such a presumption is rebuttable in nature and the accused is required to lead the evidence to rebut such presumption.
Coming back to the facts in the present case and considering that the petitioners have not denied their signatures on the cheques in question and that even according to the petitioners, agreement was made between the parties for cancellation of execution of deed for sale of land, there is a presumption under Section 139 of the NI Act that there exists a legally enforceable debt or liability. Of course, such presumption is rebuttable in nature and the same could only be done by adducing evidence at trial, but at this stage as the minute appreciation of evidence is not to be done complaint could not be quashed on this score. Therefore, at this stage of trial, the respondent/complainant is entitled for the presumption as provided under Section 139 of the NI Act.
This Court does not find any merit in this petition. Thus, the criminal petitions being Criminal Petition No. 156 of 2018 and Criminal Petition No. 242 of 2018 are dismissed.
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2023 (3) TMI 1529
Seeking grant of regular bail - Smuggling - heroin - recovery of commercial quantity of drugs - discrepancy between the secret information and the notice under section 50 - violations of Sections 55 and 57 of the NDPS Act - non-joinder of independent parties.
Discrepancy between the secret information and the notice under section 50 - HELD THAT:- The FIR is matching the secret information, but the section 50 notice is differs to the FIR and the secret information. The role of the applicant differs in the section 50 notice. As per the FIR and secret information, it was mentioned that the applicant will only collect/purchase heroin from one Rashid Khan. However, in the notice u/s 50, the role of the applicant is more detailed. In the notice under section 50 it was alleged that the applicant was involved in the buying of the contraband as well as the supply - The notice is not be read with the mathematical precision and as long as the word purchase/ collect is appearing in section 50 notice, there is no material inconsistency to that an extent to render the notice as invalid. The question whether the section 50 is an afterthought can only be decided once the parties are in the witness box.
A bare perusal of the refusal makes it clear that that both refusals are verbatim and identical. The same raises a suspicion in favor of the applicant and against the respondent that the section 50 notice as well as the refusal were fashioned by the Police authorities in Police Station after arrest and seizure. However, again whether it was fashioned in the police station or it is a coincidence that both refusals are verbatim and identical can only be decided once the evidence is led and trial has taken place.
Alleged violations of Sections 55 and 57 of the NDPS Act - HELD THAT:- In the present case, neither any report qua the seizure nor the arrest of the accused was prepared either by the first 10 or by the second IO to their higher officials. No report U/s 57 NDPS was filed along with the charge sheet. This is an admitted fact that during the course of the argument of bail application before the Trial Court, the counsel of the applicant has raised the issue qua the section 57 NDPS Act. Thereafter, in the form of the supplementary charge sheet, the prosecution filed the report Us 57 NDPS Act on 09.05.2022 before the Trial Court - Although there seems to be prima facie a violation of 55& section 57 of the NDPS act the same would not entitle the Applicant for bail as these are not mandatory conditions - There was no service of section 50 notice cannot be conclusively said in a bail application under NDPS Act involving commercial quantity. These are all issues which require trial.
Non-joinder of independent witnesses - HELD THAT:- In the present case, understandably it would have been difficult to join any public person during the search seizure and other proceeding at the spot since it was late at night. However, the raiding team has also not conducted any videography during the search and seizure - merely because independent witnesses were not present or no videography was recorded, the conclusion cannot not be drawn that accused was falsely implicated.
There is illegality in notice served U/s 50 NDPS Act dated 27.10.2020. The section 50 categorically mandates that where the accused requires a search, the search has to be done by nearest gazetted officer/nearest magistrate - the section 50 notice served upon the applicant and the co-accused informs incorrectly that they can be searched by any gazetted information/magistrate. This is where the violation of section 50 lies.
It is correct that both the accused persons were informed that of their rights regarding personal search but the same was not informed as per the strict provisions of section 50.
The applicant's alleged refusal that he is unwilling to be searched is irrelevant. The notice u/s 50 NDPS act itself is faulty in law. Therefore, it cannot be said that accused's unwillingness to be searched in front of an officer who is a member of the raiding team is a voluntary expression of their desire for giving up their right to be searched. The notice of section 50 served to the applicant clearly violates the law and is a misdirection. As a result, the applicant was misled into believing that his search was to be before any gazetted officer and not the nearest. Further the fact was conducted before ACP Rich pal is far from an independent search as ACP Rich pal was part of the raiding team.
Whether invalid notice vitiates recovery? - HELD THAT:- It may be relevant to refer to the observations of the Constitution Bench in Vijaysinh Chandubha Jadeja v. State of Gujarat, [2010 (10) TMI 934 - SUPREME COURT], wherein the Bench held there must be strict compliance of Section 50 of the NDPS Act.
In the present case, conditions under section 50 have been violated and the procedure established has not been followed. The same give rise to reasonable grounds for granting bail.
The basic requirements of Section 50 of the NDPS Act not having been complied with in the instant case, in view of which the rigours of section 37 would not be an obstacle in the release of the applicant.
The applicant shall furnish a personal bond in the sum of Rs. 50,000/- each with 01 surety in the like amount, to the satisfaction of the Trial Court - the applicant should be enlarged on bail subject to fulfilment of conditions imposed - application disposed off.
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2023 (3) TMI 1528
Challenge to a a common interim order - HELD THAT:- In view of the fact, that the writ petitions are pending before the learned single judge, these appeals are disposed of with directions imposed - The interim direction shall continue to operate during the pendency of the writ actions preferred by the appellants in the abovementioned appeals.
Application closed.
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2023 (3) TMI 1526
Application filed u/s 439 of the Code of Criminal Procedure, 1973 for grant of bail - offences punishable under Sections 420, 406, 408, 409, 468, 471 r/w 34 of Indian Penal Code and Sections 3, 4, 5 of the Maharashtra Protection of Interest of Depositors (In Financial Establishments) Act, 1999 - HELD THAT:- The applicant submits that pursuant to the order passed by this Court dated 14 February 2023, the applicant has deposited the said amount of Rs. 75,00,000/-. 6. Considering the facts and circumstances of the case and as the applicant is in jail for about three years, I am inclined to release the applicant on bail.
The applicant - Suryaji Pandurang Jadhav be released on bail in Crime No. 26 of 2020 registered at Shivaji Nagar Police Station, Pune for the offences punishable under Sections 420, 406, 408, 409, 468, 471 r/w 34 of Indian Penal Code and Sections 3, 4, 5 of the Maharashtra Protection of Interest of Depositors (In Financial Establishments) Act, 1999, on furnishing P.R. Bond in the sum of Rs.25,000/- with one or two sureties in the like amount.
Application allowed.
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2023 (3) TMI 1524
Territorial limits of the Nagpur Bench of Court - Tender floated by the respondent in the matter of transportation of Raw Coal transportation against Road-cum-Rail (RCR) Allocation from Kusmunda/Gevra/Dipka mines of South East Coalfield Limited (SECL) to the Thermal Power Stations of the respondent - HELD THAT:- A perusal of the E-Tender document indicates that it has been published by the respondent through its Head Office at Mumbai. All steps commencing from registration of the prospective bidders, sale of the tender document, holding of the pre-bid meeting followed by the entire process till opening of the financial bids is to be conducted at the Head Office at Mumbai. It is true that certain acts such as submission of E-Tender document and payment of amount in that regard are permitted to be done online. Merely because the petitioner who has its Office at Nagpur has downloaded the E-Tender document at Nagpur and thereafter sought to upload the E-Tender document from Nagpur, the same would not be sufficient to confer territorial jurisdiction at Nagpur in absence of any part of a cause of action having arisen here.
The extension of time from 03.03.2023 to 09.03.2023 has occurred at the Head Office at Mumbai. Even the fact that the transportation of Raw Coal at some Thermal Power Stations situated within the territorial jurisdiction of this Bench is not a relevant factor at this pre-bid stage. The issue in question is of the extension of time for submission of bids which the petitioner alleges is contrary to the conditions of the notice inviting tender.
As observed by this Court in BALAJI VENTURES PVT. LTD. VERSUS MAHARASHTRA STATE POWER GENERATION COMPANY LTD., VIMALA INFRASTRUCTURE (INDIA) PVT. LTD. [2022 (1) TMI 1453 - BOMBAY HIGH COURT], it is only that fact which has a nexus or relevance with the lis that is involved that gives rise to a cause of action which would be relevant as held in UNION OF INDIA VERSUS ADANI EXPORTS LTD. [2001 (10) TMI 321 - SUPREME COURT] - on perusing the writ petition and reading the entire tender document that no part of cause of action arises within the territorial limits of Nagpur Bench for the writ petition to be entertained in the light of the reliefs sought therein.
The writ petition for absence of cause of action or even part thereof arising at the Nagpur Bench of the High Court. The writ petition is thus not entertained on merits and it is disposed of.
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2023 (3) TMI 1523
Challenge to Look Out Circular issued against him by Respondent Nos. 3 and 4 (Ministry of Corporate Affairs and Serious Fraud Investigation Office) - HELD THAT:- After having perused the report and the communication dated 18th January, 2022, and the latest proforma which the SFIO has issued to the Bureau of Immigration, this Court is of the opinion that the present case would fall under Clause (i) of the Office Memorandum dated 22nd February, 2021.
In terms of the Office Memorandum and in view of the SFIO’s own stand, it is directed that the immigration authorities shall inform the SFIO about the entry and exit of the Petitioner from time to time. No other embargo would exist on the Petitioner for his travel from and into India. It is clarified that the Petitioner would have no obligation to inform the SFIO about his travel outside India. The obligation would be of the immigration authorities to inform the SFIO.
The above change in the status of the LOC, shall be subject to the following conditions:- i) The Petitioner shall present himself in the Indian Embassy in Oman on the first Monday of every month ii) The Petitioner’s undertaking filed in compliance of order dated 12th April, 2021 that he shall present himself before the Authorities upon a 15 days' notice, shall continue.
Petition disposed off.
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2023 (3) TMI 1503
Maintainability of review petition - Delay in filing review/recall applications - object and purpose of filing these review petitions is to seek review of the judgment impugned in the review petitions and for rehearing of the Special Leave Petitions or the Civil Appeals - scope of review as provided under Order XLVII Rule 1 CPC - whether, on the basis of a subsequent decision, on a pure question of law, the earlier decisions arrived at, on the basis of law as it was, could now be recalled at the instance of one of the parties to the earlier decisions?
HELD THAT:- When a review application is filed by an aggrieved party, the same can be dismissed ex parte without issuing notice to the other side on the ground that there is no sufficient ground to call upon the opposite party to show cause as to why review should not be granted. If notice is issued to the other side, then, after hearing both sides, it is necessary to consider whether the review petition ought to be allowed or rejected. It is at that stage the maintainability of the review petition would also have to be considered such as if there is a bar to the very maintainability of the review petition having regard to the scope to Order XLVII Rule 1 CPC. Then, the review petition has to be dismissed at that stage itself. But, if the Court is convinced that there is ground for reviewing the order or judgment impugned, then the review petition has to be allowed by recalling the orders sought to be reviewed.
Rule 1 of Order XLVII of the S.C. Rules, 2013 made by virtue of Article 145 of the Constitution of India states that, in any civil case, review lies on any of the grounds stated under Order XLVII Rule 1 CPC. Thus, the scope and power to review a judgment or order by the Supreme Court is restricted to the contours of Order XLVII Rule 1 CPC. Further, though the power to review is conferred by the Constitution and is therefore a Constitutional power, that power is circumscribed by the CPC and S.C. Rules, 2013.
On a consideration of Order XLVII Rule 1 CPC, it is noted that there are three main grounds referred to above on which a review of a decree or order could be sought by an aggrieved person. Much emphasis has been laid by the learned senior counsel for the review petitioners herein, on the expression “sufficient reason” so as to contend that since Pune Municipal Corporation was decided contrary to the intent and purport of Section 24(2) of L.A. Act, 2013 and the same has been overruled by a Larger Bench comprising of five Judges in Indore Development Authority, there is sufficient reason to review all judgments passed by this Court following Pune Municipal Corporation. Hence, the present review petitions have been filed although there may be a delay in doing so.
Applying the Explanation to the facts of the present case, it was contended that in Indore Development Authority, the judgment in Pune Municipal Corporation was overruled on a pure question of law and further, all other judgments following Pune Municipal Corporation also stood overruled. But the overruling of the decision in Pune Municipal Corporation by a subsequent decision of a Larger Bench of five Judges in Indore Development Authority is not a ground for review and recall of the very decision in Pune Municipal Corporation and all other decisions following Pune Municipal Corporation. It was submitted that the Explanation to Order XLVII Rule 1 CPC bars the review petition being entertained in the instant cases. Hence, in these cases, the review petitions may have to be rejected/dismissed.
The Explanation to Order XLVII Rule 1 CPC is in the nature of an exception to the expression “for any other sufficient reason”. This would mean that if, in the mind of a Court there is a sufficient reason for the review of a judgment, it cannot be on the ground/reason covered in the Explanation to Order XLVII Rule 1 CPC. Thus, the circumstances mentioned in the Explanation would be an exception and is outside the scope and ambit of “for any other sufficient reason” - the bar is for a Court to review its judgment, when a Court superior to it has subsequently reversed or modified a judgment on a question of law. As far as this Court is concerned, a superior Court would mean a Larger Bench of this Court which would pass a judgment or order contrary to the judgments sought to be reviewed.
Having regard to the scope and ambit of the Explanation to Order XLVII Rule 1 CPC, these review petitions are not maintainable and the judgment and the orders of this Court ought not be reviewed and the review petitions are liable to be dismissed.
The review petitions are disposed of.
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2023 (3) TMI 1494
Lack of territorial jurisdiction to entertain the petition - an overriding effect of MSMED Act has over Arbitration and Conciliation Act, 1996 - whether the learned District Judge was right in rejecting the petition filed by the appellant on the ground that the learned District Judge does not have the territorial jurisdiction to entertain the petition? - HELD THAT:- It is a settled law that a place which is provided under the exclusive jurisdiction clause agreed between the parties determines the territorial jurisdiction of the Court to entertain a petition under Section 34 of the Act of 1996. Though in the present case, there was no arbitration clause, but still the parties have conferred exclusive jurisdiction to the Courts in Delhi. The same shall mean that any challenge to the arbitration award in terms of Section 19 of the MSMED Act would necessarily lie before the Court in Delhi. So, it follows that a challenge to the award passed under the MSMED Act shall necessarily be in terms of Section 34 of the Act of 1996 and surely the principles as governed under the Act of 1996 shall apply to such challenge.
It may be stated here that a learned Single Judge of this Court in the case of AHLUWALIA CONTRACTS (INDIA) LTD. VERSUS OZONE RESEARCH & APPLICATIONS (I) PVT. LTD. AND ORS. [2023 (1) TMI 1377 - DELHI HIGH COURT], is of the view that the seat of arbitration shall be the place where Facilitation Council is situated (Nagpur in that case). Hence, a petition filed before this Court under Section 34 of the Act of 1996, shall not be maintainable.
The impugned order passed by the learned District Judge rejecting the petition filed by the appellant herein under Section 19 of the MSMED Act read with Section 34 of the Act of 1996, on the ground that the Court has no territorial jurisdiction is contrary to the settled position of law and the same is liable to be set aside.
The objections filed by the appellant, are restored on the file of the learned District Judge (Commercial Court), Shahdara, Delhi, for adjudication of the same on merits in accordance with law.
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2023 (3) TMI 1491
Permission to petitioners to appear in the IInd and IIIrd Semester Examinations of B.T.C. Training Course-2012 and to continue their studies for the said course - HELD THAT:- After the judgement of Meghalaya High Court in CMJ FOUNDATION AND ORS. VS. STATE OF MEGHALAYA AND ORS. [2015 (7) TMI 1437 - MEGHALAYA HIGH COURT] as well as amendment in Section 48 of Amendment Act 2019, the CMJ University informed the petitioners, the petitioner no. 2 under the RTI Act, 2005 to the effect that the students named Desh Deepak Registration No. 10111010119125 and Sunil Kumar, Registration No. 10111010119126 of Bachelor of Arts Degree has completed their verification and therefore, the verification of both the students are complete according to the records of the University and the Degree of both the aforesaid students are valid.
The Degrees obtained by the petitioners from the CMJ University, Meghalaya in the year -2012 are treated to be valid one - the writ petition is allowed with the direction to the State Government of U.P. to continue the petitioners with the B.T.C. Training Course- 2012, if the same is surviving.
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2023 (3) TMI 1490
Maintainability of Writ Petitions instituted by the Appellants before the Orissa High Court - Constitutional validity of abolition of the OAT - Article 323-A of the Constitution makes it mandatory for the Union Government to establish SATs or not - invocation of Section 21 of the General Clauses Act to rescind the notification establishing the OAT, thereby abolishing the OAT - abolition of the OAT, violative of Article 14 of the Constitution and violative of the fundamental right of access to justice - violation of principles of natural justice by failing to provide the OAT Bar Association and the litigants before the OAT with an opportunity to be heard before arriving at a decision to abolish the OAT - validity of notification dated 2 August 2019 - transfer of cases from the OAT to the Orissa High Court has the effect of enlarging the jurisdiction of the latter or not - State Government took advantage of its own wrong by ceasing to fill the vacancies in the OAT or not - failure of the Union Government to conduct a judicial impact assessment before abolishing the OAT - Union Government became functus officio after establishing the OAT.
An overview of the proceedings arising from the abolition of the Madhya Pradesh Administrative Tribunal (MPAT) and the Tamil Nadu Administrative Tribunal (TNAT) - HELD THAT:- The MPAT Abolition Case [2004 (9) TMI 665 - SUPREME COURT] concerned the powers of the State of Madhya Pradesh under the Madhya Pradesh Reorganization Act 2000 as well as the constitutional validity of certain provisions of that enactment. This Court was not called upon to adjudicate whether Section 21 of the General Clauses Act would be applicable to Section 4(2) of the Administrative Tribunals Act. A decision on the abolition of an SAT by the exercise of special powers under a legislation enacted for the reorganization of a state does not have any bearing on whether an SAT may be abolished in exercise of powers under the Administrative Tribunals Act. The MPAT Abolition Case is therefore not germane to the issue of whether Section 21 of the General Clauses Act would be applicable to Section 4(2) of the Administrative Tribunals Act. However, the issue whether the decision to abolish the MPAT was arbitrary, unreasonable and therefore violative of Article 14 of the Constitution was decided in that case - The proceedings arising from the TNAT Abolition Case (supra) in appeal before this Court, too, do not have a bearing on the approach to be adopted while deciding the merits of the issues because the question of law was expressly kept open.
The Writ Petitions instituted before the Orissa High Court were maintainable - HELD THAT:- In State of Orissa v. Ram Chandra Dev [1963 (11) TMI 82 - SUPREME COURT]], a Constitution Bench of this Court held that the existence of a right is the foundation of a petition Under Article 226 - In this case, the Odisha Retired Police Officers' Welfare Association alleged that its right to speedy redressal of grievances (a facet of the fundamental right of access to justice) was violated. The OAT Bar Association joined the Odisha Retired Police Officers' Welfare Association in alleging that the state's action of abolishing the OAT violated its right Under Article 14 of the Constitution. Having alleged that these rights were violated by the abolition of the OAT, they were entitled to invoke the High Court's jurisdiction Under Article 226 of the Constitution. Whether there is substance in the grievance is a separate matter which has to be analysed.
Article 323-A does not preclude the Union Government from abolishing SATs - HELD THAT:- Article 323-A does not specify the conditions in which the power to enact laws providing for the adjudication of certain disputes by administrative tribunals must be exercised. It therefore cannot be said that Parliament was obligated to exercise this power upon the fulfilment of certain conditions - The consequences of reading Article 323-A as mandating the creation of administrative tribunals, would be to foreclose the possibility of the adoption of an alternate course of action to achieve the desired objective of reducing arrears and ensuring speedy justice. This, too, indicates that it could not have been the intention of Parliament to mandate the establishment of administrative tribunals as the only remedy to mounting arrears or as the only manner in which speedy justice could be secured.
The word "may" in Article 323-A of the Constitution is not imparted with the character of the word "shall." Article 323-A is a directory, enabling provision which confers the Union Government with the discretion to establish an administrative tribunal. The corollary of this is that Article 323-A does not act as a bar to the Union Government abolishing an administrative tribunal once it is created.
Applicability of Section 21 of the General Clauses Act - HELD THAT:- This Court answered in the negative because Section 3 of the Commissions of Inquiry Act 1952 provided for the power to fill any vacancies whereas Section 7 provided for the only situation in which a Commission which was already constituted would cease to exist. This Court observed that the Commissions of Inquiry Act 1952 did not provide for the power to reconstitute a Commission or replace its members. The scheme of the enactment and its context indicated that Section 21 of the General Clauses Act could not be invoked. Further, the object of the Commissions of Inquiry Act 1952 would be frustrated if the appropriate government were permitted to reconstitute a Commission midway through the task that it was charged with completing because it made it possible for an independent agency to exist, free from governmental control. In the present case, there is no such impediment to the application of Section 21 of the General Clauses Act. The object of the Administrative Tribunals Act would not stand frustrated if an SAT is created and then abolished - The natural consequence of the Union Government rescinding the notification establishing the OAT would be to restore the status quo ante. Nothing in either Article 323-A of the Constitution or the Administrative Tribunals Act prevents such a revival. Further, the absence of a provision in the Constitution which explicitly permits a revival does not act as a barrier to such a revival. For the reasons discussed above, the Union Government's reliance on Section 21 of the General Clauses Act is in accordance with law.
The notification dated 2 August 2019 is not violative of Article 14 of the Constitution - HELD THAT:- The absence of a right to be heard before the formulation or implementation of a policy does not mean that affected parties are precluded from challenging the policy in a court of law. What it means is that a policy decision cannot be struck down on the ground that it was arrived at without offering the members of the public at large (or some Section of it) an opportunity to be heard. The challenge to a policy may be sustainable if it is found to vitiate constitutional rights or is otherwise in breach of a mandate of law - the decision to abolish the OAT cannot be assailed on the ground that there was a violation of the principles of natural justice. Article 14 of the Constitution has not been violated.
The Union Government did not become functus officio after establishing the OAT - HELD THAT:- The doctrine of functus officio gives effect to the principle of finality. Once a judge or a quasi-judicial authority has rendered a decision, it is not open to her to revisit the decision and amend, correct, clarify, or reverse it (except in the exercise of the power of review, conferred by law). Once a judicial or quasi-judicial decision attains finality, it is subject to change only in proceedings before the appellate court - The doctrine of functus officio exists to provide a clear point where the adjudicative process ends and to bring quietus to the dispute. Without it, decision-making bodies such as courts could endlessly revisit their decisions. With a definitive endpoint to a case before a court or quasi-judicial authority, parties are free to seek judicial review or to prefer an appeal. Alternatively, their rights are determined with finality. Similar considerations do not apply to decisions by the state which are based entirely on policy or expediency.
In the present case, the State and Union Governments' authority has not been exhausted after the establishment of an SAT. Similarly, the State and Union Governments cannot be said to have fulfilled the purpose of their creation and to be of no further virtue or effect once they have established an SAT. The state may revisit its policy decisions in accordance with law. For these reasons, the Union Government was not rendered functus officio after establishing the OAT.
The notification dated 2 August 2019 is valid despite not being expressed in the name of the President of India - HELD THAT:- In the present case, the notification dated 2 August 2019 was not issued in the name of the President. However, this does not render the notification invalid. The effect of not complying with Article 77 is that the Union Government cannot claim the benefit of the irrebuttable presumption that the notification dated 2 August 2019 was issued by the President. Hence, the Appellants' argument that the notification dated 2 August 2019 is invalid and unconstitutional is specious - In the present case, the notification dated 2 August 2019 was issued in exercise of the statutory powers under the Administrative Tribunals Act - the notification dated 2 August 2019 is valid despite not being expressed in the name of the President of India.
The abolition of the OAT is not violative of the fundamental right of access to justice - HELD THAT:- The fundamental right of access to justice is no doubt a crucial and indispensable right under the Constitution of India. However, it cannot be interpreted to mean that every village, town, or city must house every forum of adjudication created by statute or the Constitution. It is an undeniable fact that some courts and forums will be located in some towns and cities and not others. Some or the other litigants will be required to travel some distance to access a particular forum or court - the Orissa High Court has established benches which will operate virtually in multiple cities and towns across the state. This negates the Appellants' argument that the Orissa High Court is less accessible than the OAT. In fact, the number of virtual benches of the High Court is greater than the number of benches of the OAT. Litigants from across the state can access the High Court with greater ease than they could access the OAT - Litigants may therefore approach the Orissa High Court for the resolution of disputes. The abolition of the OAT does not leave litigants without a remedy or without a forum to adjudicate the dispute in question. It is therefore not violative of the fundamental right of access to justice.
The State Government did not take advantage of its own wrong - HELD THAT:- The State Government discontinued appointments to the OAT as a result of its decision to abolish the OAT and not vice versa. The Appellants' averment confuses the sequence of events on which their argument is based. The State Government based its decision on an evaluation of the OAT's functioning in the year 2014, which was prior to its decision to abolish the OAT. Hence, there is no "wrong" which the State Government took advantage of. Similarly, we do not agree with the argument of the Appellants that the Union of India had systematically made the OAT non-functional - The lis before the Orissa High Court was limited to the validity of the decision to abolish the OAT.
The failure of the Union Government to conduct a judicial impact assessment before abolishing the OAT does not vitiate its decision to abolish the OAT - HELD THAT:- An assessment such as the one directed to be conducted would only shed light on the impediments faced in the delivery of justice. The lack of an assessment precludes any well-informed, intelligent action concerning tribunals in the country (as a whole). This, in turn, has cascading effects for the citizenry, which is deprived of a well-oiled machinery by which it can access justice. We therefore reiterate the directions of this Court in Rojer Mathew [2019 (11) TMI 716 - SUPREME COURT] and direct the Ministry of Law and Justice to conduct a judicial impact assessment at the earliest.
Thus, the abolition of the OAT was constitutionally valid - The challenge to the constitutional validity of the impugned notification dated 2 August 2019 by which the OAT was abolished is rejected. The judgment of the High Court shall stand affirmed.
Appeal dismissed.
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2023 (3) TMI 1489
Fair Rent Determination - building has been let out to the Union of India for use by the Income Tax Department - Chief Commissioner, Income Tax fixed the fair rent in terms of the CPWD recommendation - as submitted that since the CPWD rates were being followed all along and even the fair rent was ascertained on the basis of such rates, there was no reason for the respondent-Authorities to withhold the rent to the petitioners in terms of the CPWD rates, as they came out from time to time.
HELD THAT:- Although the respondents have argued that the CPWD rates, as per the Manual on Infrastructure of CBDT, are merely advisory, the Chief Commissioner of Income Tax, while fixing the fair rent for the premises lastly, had himself relied on the CPWD rates. As such, there is no plausible reason to deviate from such rent structure subsequently.
The respondents have all along acted on the basis of the CPWD rates for assessing the rent for the premises-in-question. Since the Circular dated January 30, 1987 also indicates that the rent has to be revised in respect of buildings hired by the Income Tax Department as per the CPWD Code, the respondent-Authorities cannot deviate from such norms now, more so in the absence of any alternative yardstick.
The petitioners, in their supplementary affidavit, have clearly enumerated the arrears of rent as per the CPWD rates.
Admittedly, the respondent no. 1 vacated the rented premises “Parmar Building” and gave possession of the same to the petitioners on June 30, 2021. As such, the rent due to the petitioners has to be cleared by the respondents in favour of the petitioners up to the said date.
Such date has been disclosed by the petitioners in their supplementary affidavit filed in connection with the writ petition. The respondents’ opposition thereto does not, in specific terms, deny either the date of handing over possession by the respondent-Authorities or the calculations made by the petitioners in the said supplementary affidavit.
Inasmuch as the respondents’ claim of Municipal Tax and maintenance and repair charges due from the landlords/petitioners is concerned, the document on record clearly indicate that the fair rent adjudicated by the Chief Commissioner, Income Tax indicated that Municipal Taxes and maintenance and repair charges were to be borne by the petitioners.
Although learned counsel for the respondents has vociferously argued that such amounts were not paid by the petitioner, neither has it been averred by the respondents as to whether they paid such sums and, if so, what was the quantum paid by them, nor has any such claim been made by the petitioners before any forum till date. Moreover, the said question has to be adjudicated by taking detailed evidence, which is beyond the scope of the writ court.
Whether the order of the Chief Commissioner, Income Tax would prevail in the teeth of the specific provisions laid down in Section 151 of the 1990 Act, which applies to the present case and provides for apportionment of property tax by the person primarily liable to pay, by recovery of the same from the occupiers of the premises - There can neither by any agreement against the statute, nor can the assessment of fair rent by the Chief Commissioner, Income Tax prevail over the provisions of law. Since the 1990 Act prevails in respect of the building-in-question in view of it being situated within the territorial jurisdiction of Asansol, such question is also required to be decided prior to observing that any amount, if at all, is due by way of Municipal Taxes from the petitioners to the respondents.
Inasmuch as the maintenance and repair charges are concerned, the respondents have produced precious nothing to substantiate their claim of having borne the expenses in that regard. Unless specific pleading is made and proof is furnished in that regard, in any event, the respondents are not entitled to get any such amount from the petitioners.
Question of adjustment of such dues from the amount payable by way of rent to the petitioners - such argument has to negated at the outset, also on another score. It is well-settled that unless there is a specific agreement between the lessor and lessee and/or landlord and tenant to the effect that repair and maintenance charges shall be adjusted from the rent, such adjustment cannot be claimed as a matter of right by the respondents/lessees.
Since the possession was handed over as long back as on June 30, 2021, the respondents are undoubtedly at liberty to institute a regular civil suit to make such money claim before a competent court of law.
However, in view of the above discussions, there is no scope of this Court adjusting such amount of Municipal Taxes and alleged repair and maintenance charges within the ambit of the present writ petition.
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2023 (3) TMI 1486
True effect of Article 324 and, in particular, Article 324(2) of the Constitution - requirement of having a full-proof and better system of appointment of members of the Election Commission - challenge to policy's implementation by the Union of India - violations of fundamental rights guaranteed by the Constitution of India - balance between environmental conservation and individual liberties.
HELD THAT:- The significant legal precedents regarding the scope of governmental authority in environmental matters and the protection of individual rights within the framework of environmental regulation are established.
Until the Parliament makes a law in consonance with Article 324(2) of the Constitution, the following guidelines shall be in effect:
(1) It is declared that the appointment of the Chief Election Commissioner and the Election Commissioners shall be made on the recommendations made by a three-member Committee comprising of the Prime Minister, Leader of the Opposition of the Lok Sabha and in case no Leader of Opposition is available, the Leader of the largest opposition party in the Lok Sabha in terms of numerical strength and the Chief Justice of India.
(2) It is desirable that the grounds of removal of the Election Commissioners shall be the same as that of the Chief Election Commissioner that is on the like grounds as a Judge of the Supreme Court subject to the "recommendation of the Chief Election Commissioner" as provided under the second proviso to Article 324(5) of the Constitution of India.
(3) The conditions of service of the Election Commissioners shall not be varied to his disadvantage after appointment.
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