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Indian Laws - Case Laws
Showing 501 to 520 of 27626 Records
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2024 (7) TMI 1604
Appointment of arbitrator to decide the disputes between the parties and the present petition be treated as an application under Section 17 of the Arbitration and Conciliation Act, 1996 - HELD THAT:- With the consent of learned counsel for the parties, the petition is disposed of by appointing Hon’ble Mr. Justice S. Ravindra Bhat, former Judge, Supreme Court of India as the learned arbitrator to adjudicate the disputes between the parties under a Share Purchase Agreement.
The present petition will be treated as an application under Section 17 of the Act before the learned arbitrator. The respondent may file a reply to the application under Section 17 of the Act, within ten days from today or as soon as the learned arbitrator enters upon the reference, whichever is later.
Petition disposed off.
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2024 (7) TMI 1603
Challenge to TET examination of the year 2017 conducted by the WBBPE - HELD THAT:- The Board is directed to produce an authenticated copy of such resolution before this Court on the adjourned date.
List the matter on 12th July, 2024 for further consideration.
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2024 (7) TMI 1598
Cancellation of tender that had been awarded to the Appellant for the maintenance of two underpasses on Public-Private Partnership basis - scope of judicial review of the actions of the State in matters relating to contract/tender disputes under writ jurisdiction - violation of Article 14 of the Constitution of India.
What is the scope of judicial review of the actions of the State in the matters relating to contract/tender disputes under writ jurisdiction? - HELD THAT:- The present dispute even if related to a tender, cannot be termed as a pure contractual dispute, as the dispute involves a public law element. Although there is no discharge of a public function by the Respondent towards the Appellant yet there is a right to public law action vested in him against the Respondent in terms of Article 14 of the Constitution. This is because the exercise of the executive power by it in the contractual domain i.e., the cancelling of the tender carries a corresponding public duty to act in a reasonable and rationale manner. Thus, the writ petition filed by the Respondent was maintainable and the relief prayed for could have been considered by the High Court in exercise of its writ jurisdiction.
The approach of the court must be to respect the expertise and discretion of administrative authorities while still protecting against arbitrary and capricious actions.
Whether the action on the part of the Respondent herein in cancelling the tender vide its notice dated 07.02.2023 was amenable to the writ jurisdiction of the High Court? If so, whether the said action could be termed as arbitrary or unfair and in consequence of violation of Article 14 of the Constitution of India? - HELD THAT:- Once a decision has been officially made through proper means and channel, any internal deliberations or file notings that formed a part of that decision-making process can certainly be looked into by the Court for the purposes of judicial review in order to satisfy itself of the impeccability of the said decision.
Once a decision is made, all opinions and deliberations pertaining to the said decision in the internal file-notings become a part of the process by which the decision is arrived at, and can be looked into for the purposes of judicial review. In other words, any internal discussions or notings that have been approved and formalized into a decision by an authority can be examined to ascertain the reasons and purposes behind such decisions for the overall judicial review of such decision-making process and whether it conforms to the principles enshrined in Article 14 of the Constitution.
If the purported action of cancelling the tender is claimed to have been taken in view of certain technical faults in the same or even a change in policy the same ought to be clearly reflected from its internal file notings as-well, pursuant to which the purported decision was taken.
It is evident that the Notice of Cancellation dated 07.02.2023, issued to the Appellant, was at the behest of the concerned minister. The Respondent clearly recorded that, because instructions for cancellation had been received from the higher-ups, there was no option but to proceed with the cancellation. Even before the Respondent could properly and thoroughly explore the possibility of acceding to such request by consulting its legal cell, the tender was cancelled only at the instance and specific instructions of the concerned minister.
Considerations of public interest should not be narrowly confined to financial aspects. The courts must have a more holistic understanding of public interest wherever the fairness of public authorities is in question, giving due regard to the broader implications of such action on the stability of contractual obligations. Merely because the financial terms of a contract are less favourable over a period of time does not justify its termination. Such decisions must be based on a careful consideration of all relevant factors, including the potential harm to the integrity and sanctity of contractual relationships. The larger interest of upholding contracts cannot be discarded in the name of monetary gain labelled as public interest.
The present lis is nothing but a classic textbook case of an arbitrary and capricious exercise of powers by the Respondent to cancel the tender that was issued to the Appellant on the basis of extraneous considerations and at the behest of none other but the concerned Minister-In-Charge.
Conclusion - i) The writ petition filed by the Appellant was maintainable, as the cancellation of the tender involved a public law element. The cancellation was not a mere contractual dispute but an arbitrary exercise of executive power. ii) The litigation at hand is nothing but a classic textbook case of an arbitrary exercise of powers by the Respondent in cancelling the tender that was issued in favour of the Appellant and that too at the behest of none other than the concerned Minister-In-Charge and thereby rendering the Notice of Cancellation dated 07.02.2023 illegal. iii) The order dated 16.09.2023 passed by the Urban Development and Municipal Affairs Department, Government of West Bengal merely transferred the operation and maintenance of the underpasses including the right to receive revenue from KMDA to KMC and therefore will have no effect on any rights that accrued in favour of the Appellant as such rights are independent of the authority in control of operations and maintenance.
The notice of cancellation dated 07.02.2023 is quashed and the impugned judgment and order passed by the High Court is hereby set aside - Appeal allowed.
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2024 (7) TMI 1597
Interpretation and application of promotion rules within the Bihar State Electricity Board, specifically regarding the concept of "Kal Awadhi" and its implications for retrospective promotions - promotion to the post of Joint Secretary with effect from 29th July 1997, instead of 5th March 2003 - HELD THAT:- It is no longer res integra that a promotion is effective from the date it is granted and not from the date when a vacancy occurs on the subject post or when the post itself is created. No doubt, a right to be considered for promotion has been treated by courts not just as a statutory right but as a fundamental right, at the same time, there is no fundamental right to promotion itself.
In State of Bihar and Ors. v. Akhouri Sachindra Nath and Ors. [1991 (4) TMI 469 - SUPREME COURT], it was held that retrospective seniority cannot be given to an employee from a date when he was not even borne in the cadre, nor can seniority be given with retrospective effect as that might adversely affect others.
The same view was reiterated in Keshav Chandra Joshi and Ors. v. Union of India and Ors. [1990 (11) TMI 428 - SUPREME COURT], where it was held that when a quota is provided for, then the seniority of the employee would be reckoned from the date when the vacancy arises in the quota and not from any anterior date of promotion or subsequent date of confirmation.
In Nani Sha and Ors. v. State of Arunachal Pradesh and Ors. [2007 (5) TMI 593 - SUPREME COURT] it was observed that mere existence of a vacancy is not sufficient for an employee to claim seniority and the date of actual appointment has to be in accordance with the prescribed procedure.
Conclusion - The Division Bench of the High Court ought to have refrained from interfering with the findings returned by the learned Single Judge who has rightly held that merely because the Respondent had completed the Kal Awadhi for promotion from the post of Under Secretary to Joint Secretary, would not necessarily entitle him for appointment from the date the post fell vacant. This is not a case where the Respondent has been deprived of promotion to the next higher post, nor is it a case where the action of the Board was guided by any malafides or colourable exercise of power. The action of the Board was purely guided by administrative exigencies. The Resolution of the Board dated 26th December, 1991 for fixing the Kal Awadhi was only directory in nature and cannot be treated as statutory for the Respondent to have claimed an entitlement to promotion reckoned from 29th July, 1997, instead of 5th March, 2003.
The impugned order dated 20th October 2011 is set aside and the order dated 3rd October, 2007 passed by the learned Single Judge is restored - Appeal allowed.
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2024 (7) TMI 1590
Maintainability of petition - availability of alternative remedy - Legality of arrest of the Petitioner at the hand of the Respondent - gross violation of the provisions of Section 41A of the Code of Criminal Procedure - HELD THAT:- This Court is of the opinion that the petitioner herein had raised an objection regarding non-compliance of Section 41A of Cr.P.C. when his police custody remand had been sought by the State, and the same was dealt with and rejected by the learned Magistrate vide a detailed order dated 19.05.2024. Since a separate application in this regard had also been filed by the petitioner, the same was rejected by the learned Magistrate on the ground that the grounds raised in the said i.e. non- compliance of Section 41A of Cr.P.C., have already been dealt with by the learned Magistrate in his order dated 19.05.2024, and, therefore, the same had become infructuous.
It is true that the petitioner herein has not challenged the dismissal of the abovesaid application by the learned Magistrate, which he should have challenged before the learned Sessions Court as per the provisions of law, before approaching this Court. However, this Court is also of the opinion that it is not the non-compliance of Section 41A of Cr.P.C. alone which has been challenged before this Court, but also the manner in which he was arrested, the malafide of arrest and breach of his fundamental rights.
Maintainability of a writ petition, in light of availability of alternative remedy - HELD THAT:- It will be apt to take note of the observations of the Hon'ble Apex Court in case of M/S RADHA KRISHAN INDUSTRIES VERSUS STATE OF HIMACHAL PRADESH & ORS. [2021 (4) TMI 837 - SUPREME COURT] where it was held that 'When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion.'
Thus, one of the exceptions to the general rule that a writ petition would not be maintainable when an alternative remedy is available, is when a writ petition has been filed for enforcement of fundamental rights as enshrined in the Constitution of India. As noted above, the petitioner herein has specifically alleged breach of his fundamental rights by the State/police, while challenging his arrest on grounds of non-compliance of Section 41A of Cr.P.C. and directions of the Hon'ble Apex Court.
Conclusion - This Court is, therefore, of the opinion that at this stage, the petition before this Court is maintainable to the extent of issuance of notice to the respondent. The merit of the case will, however, be decided only after a reply is filed in this case by the State.
Let the matter be listed on 08.07.2024.
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2024 (7) TMI 1589
Seeking grant of regular bail under Section 439 of the Code of Criminal Procedure, 1973 - alleged assault - complain submits that she was brutally assaulted and apprehends danger to her life - HELD THAT:- The factors which are to be borne in mind while considering an application for bail amongst other circumstances have been reiterated in PRASANTA KUMAR SARKAR VERSUS ASHIS CHATTERJEE AND ORS. [2010 (10) TMI 1199 - SUPREME COURT] and may be beneficially referred.
Allegations of assault at the Chief Minister’s Office cum Residence made by the complainant(a sitting Member of Parliament) against PS to the Chief Minister, cannot be disbelieved merely on account of delay in registration of FIR, since the events unfolded after the incident, reflect that complainant was in a traumatized condition faced with the unprovoked brutal assault. Complainant would not have herself made a call on 112 during the course of assault, in case no such incident had occurred - despite mustering the courage to visit the police station on the same day and informing the SHO, complainant returned without lodging the FIR. In the peculiar facts and circumstances, it may be preposterous at this stage to infer that petitioner has been falsely implicated and allegations have been concocted, since apparently the complainant had no motive to implicate the petitioner.
No doubt, the petitioner happens to be only designated as a PS but the facts and circumstances reflect that he yields considerable influence and it cannot be ruled out that witnesses may be influenced or evidence may be tampered with, in case the petitioner is released on bail, at this stage.
Conclusion - The petitioner should not be granted bail, given the serious nature of the allegations, the potential for evidence tampering, and the influence the petitioner could exert over witnesses.
Bail application dismissed.
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2024 (7) TMI 1580
Invocation of doctrine of forum conveniens - Territorial jurisdiction of Delhi High Court to entertain the writ petition filed by the petitioner-institute - Seeking direction to respondents to grant renewal permission to the petitioner institute for 150 seats for admission to the MBBS Course for Academic Year 2024-25 - HELD THAT:- It is noted that the petitioner-institute is situated in the State of Punjab and the medical college is affiliated with Baba Farid University of Health Science and is under the administrative control of the Director, Medical Education and Research, Punjab, SAS Nagar, Mohali, Punjab. The petitioner-institute is also approved and recognized by the State Government of Punjab. The ground on which the petitioner-institute has approached this High Court is that the Head Office of National Medical Commission i.e., respondent no. 2 is situated within the territorial jurisdiction of this Court. However, merely because the office of respondent no. 2 is situated within the territorial jurisdiction of this Court, it cannot be a ground to entertain the instant writ petition.
As per the Kusum Ingots & Alloys Ltd. v. Union of India [2004 (4) TMI 342 - SUPREME COURT], in case a small part of cause of action arises within the territorial jurisdiction of a High Court, the same by itself may not be considered to be a determinative factor to compel that particular High Court to exercise its jurisdiction. Further, in appropriate cases, the Court may decline to exercise its discretion by invoking the doctrine of forum conveniens.
A Coordinate Bench of this Court in the case of Chinteshwar Steel Pvt. Ltd. v. Union of India [2012 (10) TMI 1281 - DELHI HIGH COURT], has held that in case of pan India Tribunals, or Tribunals/statutory authorities having jurisdiction over several States, the situs of the Tribunal would not necessarily be the marker for identifying the jurisdictional High Court.
This Court also notes, based on judicial precedents, that Courts have the power under Article 226 of the Constitution of India to exercise or decline their discretion to entertain writ petitions when the petitioner has an alternative, more appropriate, and convenient High Court to approach. It is reiterated that it is a settled position of law that if only a part of the cause of action arises within the territorial jurisdiction of the Court, the Court may decline to entertain the case if it is of the opinion that it is not the forum conveniens.
Conclusion - The jurisdiction is not solely determined by the location of a respondent's office but requires a substantial part of the cause of action to arise within the jurisdiction.
Petition dismissed.
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2024 (7) TMI 1569
Seeking to relax the condition imposed by the trial Court directing him to deposit cash security, while he was enlarged on bail - offences punishable under Sections 370, 323 and 343 read with Section 34 of the Indian Penal Code, Sections 3, 4 and 5 of the Immoral Traffic Prevention Act, 1956 and Section 14 of the Foreigners Act, 1946 - HELD THAT:- Petitioner was ordered to execute a personal bond for Rs.1,00,000/- with one solvent surety for the likesum. Apart from other conditions imposed, he was also directed to deposit cash security of Rs.50,000/-. Such onerous condition to deposit cash security was not warranted and in view of the said condition imposed by the trial Court, petitioner is still in judicial custody.
In the order dated 04.03.2024 passed in Criminal Miscellaneous No.1970/2024 by the Court of XLV Additional City Civil and Sessions Judge, Bengaluru, directing the petitioner to deposit cash security of Rs.50,000/- is hereby relaxed - Petition is allowed.
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2024 (7) TMI 1542
Seeking grant of regular bail - recovery of commercial quantity of contraband (Ganja) - Applicability of rigors of Section 37 of the NDPS Act - HELD THAT:- It is settled law that the Court, while considering the application for grant of bail, has to keep certain factors in mind, such as, whether there is a prima facie case or reasonable ground to believe that the accused has committed the offence; circumstances which are peculiar to the accused; likelihood of the offence being repeated; the nature and gravity of the accusation; severity of the punishment in the event of conviction; the danger of the accused absconding or fleeing if released on bail; reasonable apprehension of the witnesses being threatened; etc.
The present case is based allegedly on a chance recovery and it is possible that the Investigating Agency did not get sufficient time to prepare. However, given the crowded nature of the place from where the recovery was made, it is peculiar that no public witness has joined the search - A bald statement has been made, as stated in the chargesheet filed, that 4-5 passers-by were asked, however, they refused to join the investigation and left the spot citing legitimate compulsion related to journey. The recovery in the present case was effectuated at Exit Gate No.1 in front of Coolie Hall, Pahar Ganj Side, New Delhi Railway Station.
In the present case, while the charges have been framed against the applicant, none of the witnesses have been examined yet. As noted above, the applicant has been in custody since 25.12.2021. There is no likelihood of the trial being completed in the near future.'The Hon’ble Apex Court in Badsha SK. v. The State of West Bengal [2023 (9) TMI 1567 - SC ORDER], granted bail to the petitioner wherein who had been in custody for more than two years with the trial yet to begin.
Similarly, in Man Mandal & Anr. v. The State of West Bengal [2023 (9) TMI 1568 - SC ORDER] the petitioner therein had been in custody for almost two years and the Hon’ble Apex Court found that the trial is not likely to be completed in the immediate near future. The petitioner was, therefore, released on bail.
Thus, it is evident that despite the stringent requirements imposed on the accused under Section 37 of the NDPS Act for the grant of bail, it has been established that these requirements do not preclude the grant of bail on the grounds of undue delay in the completion of the trial. Various courts have recognized that prolonged incarceration undermines the right to life, liberty, guaranteed under Article 21 of the Constitution of India, and therefore, conditional liberty must take precedents over the statutory restrictions under Section 37 of the NDPS Act.
This Court is of the opinion that the applicant has made out a prima facie case for grant of bail on the grounds of absence of independent witnesses and prolonged delay in the trial.
The applicant is, therefore, directed to be released on bail on furnishing a personal bond for a sum of ₹50,000/- with two sureties of the like amount, subject to the satisfaction of the learned Trial Court, on the fulfilment of conditions imposed - bail application allowed.
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2024 (7) TMI 1540
Seeking grant of regular bail - recovery of Ganja - commercial quantity of contraband - procedural irregularities in the investigation - delay in filing the application under Section 52A of the NDPS Act and sending samples to FSL - HELD THAT:- It is settled law that the Court, while considering the application for grant of bail, has to keep certain factors in mind, such as, whether there is a prima facie case or reasonable ground to believe that the accused has committed the offence; circumstances which are peculiar to the accused; likelihood of the offence being repeated; the nature and gravity of the accusation; severity of the punishment in the event of conviction; the danger of the accused absconding or fleeing if released on bail; reasonable apprehension of the witnesses being threatened; etc.
In the present case, no notice under Section 100 (8) of the CrPC was given to any person on the refusal to support the Investigating Agency during the search procedure. The secret information was received almost three hours prior to the accused person ('Mohd Munib') being apprehended on 05.09.2022. Subsequently, on a disclosure given by the accused ('Mohd Munib') co-accused ('Gopal Dangi') was apprehended on 12.09.2022. It is peculiar that the Investigating Agency was unable to associate even a single public witness at the time, especially since the prosecution had prior secret information and the applicants were apprehended at a public place.
Delay in trial and long period of incarceration is also an important factor which has to be kept in mind while considering the application for Bail - In the present case, the matter is at the stage of prosecution evidence. It is stated that only one witness has been partly examined out of the twenty- two listed prosecution witnesses. The applicant - Mohd. Munib has been in custody since 06.09.2022 and the applicant - Gopal Dangi has been in custody since 12.09.2022. There is no likelihood of the trial being completed in the near future.
It is evident that despite the stringent requirements imposed on the accused under Section 37 of the NDPS Act for the grant of bail, it has been established that these requirements do not preclude the grant of bail on the grounds of undue delay in the completion of the trial. Various courts have recognized that prolonged incarceration undermines the right to life, liberty, guaranteed under Article 21 of the Constitution of India, and therefore, conditional liberty must take precedents over the statutory restrictions under Section 37 of the NDPS Act - this Court is of the opinion that the applicants have made out a prima facie case for grant of bail on the grounds of absence of independent witnesses and prolonged delay in the trial.
The applicants are, therefore, directed to be released on bail on furnishing a personal bond for a sum of Rs. 50,000/- each with two sureties of the like amount, subject to the satisfaction of the conditions imposed - bail application allowed.
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2024 (7) TMI 1539
Seeking grant of regular bail - possession of 305 gms of Heroin, which is commercial quantity - applicant submits that in order to allay the apprehension of the applicant being a flight risk, the applicant volunteers to surrender his passport to the concerned I.O. - Sections 21 NDPS Act, Section 14 Foreigner Act and Sections 471/474 IPC - HELD THAT:- Considering the period of custody as well as the fact that till date only 6 witnesses have been examined and that the trial is likely to take some time, this Court is of the opinion that parameters of Section 37 stand satisfied. It is directed that the applicant be released on regular bail subject to his furnishing a personal bond in the sum of Rs.50,000/- with one surety of the like amount to the satisfaction of the concerned Jail Superintendent/ concerned Court/Duty M.M., subject to depositing the passport with the concerned I.O. and subject to fulfilment of conditions imposed - bail application allowed.
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2024 (7) TMI 1538
Seeking release on bail - Recovery of commercial quantity of Charas (contraband item) - compliance with procedural requirements for sampling under Standing Order No. 1/88 - delay in filing application under Section 52A of the NDPS Act and sending samples to FSL - Rigours of Section 37 of the NDPS Act - Delay in filing application under Section 52A of the NDPS Act & delay in sending samples to FSL - HELD THAT:- It is settled law that the Court, while considering the application for grant of bail, has to keep certain factors in mind, such as, whether there is a prima facie case or reasonable ground to believe that the accused has committed the offence; circumstances which are peculiar to the accused; likelihood of the offence being repeated; the nature and gravity of the accusation; severity of the punishment in the event of conviction; the danger of the accused absconding or fleeing if released on bail; reasonable apprehension of the witnesses being threatened; etc.
Rigours of Section 37 of the NDPS Act - HELD THAT:- The accusation in the present case is with regard to the recovery of commercial quantity of contraband. Once the rigours of Section 37 of the NDPS Act are attracted, as provided under the Section, the Court can grant bail only when the twin conditions stipulated in Section 37(1)(b) of the NDPS Act are satisfied in addition to the usual requirements for the grant of bail – (1) The court must be satisfied that there are reasonable grounds for believing that the person is not guilty of such offence; and (2) That the person is not likely to commit any offence while on bail.
Delay in filing application under Section 52A of the NDPS Act & delay in sending samples to FSL - HELD THAT:- In the present case, the applicant was arrested on 18.02.2021 and the application for sampling was filed under Section 52A of the NDPS Act before the learned Magistrate on 09.04.2021. The order for sampling was passed by the learned Magistrate on 22.04.2021. The samples drawn on spot were sent to FSL for report on 01.04.2021 and the samples drawn before the learned Magistrate were sent to FSL on 30.04.2021.
Scope of Section 52A of the NDPS Act - HELD THAT:- The purpose of incorporation of Section 52A of the NDPS Act is to mitigate the issue of the hazardous nature of the contraband, vulnerability to theft, substitution, constraint of proper storage space, etc. The same is a measure to safeguard the primary evidence even when the contraband is disposed - it is clear that the provision of Section 52A of the NDPS is mandatory and is to be duly complied with before disposal/destruction of the contraband. The same also makes it clear that it is a safeguard against unruly practices to prevent substitution of the contraband which could prejudice the accused person.
Section 52A of the NDPS Act provides the procedure as to how the prosecution is required to prepare the inventory and file an appropriate application before the Magistrate for resultant sampling and certification of the inventory without causing delay - It is provided that in such a scenario, the certificate issued by the Magistrate would be treated as the primary evidence. That necessarily means that in a case where narcotic drugs or psychotropic substances are disposed of, the factum of recovery and the nature and authenticity of the contraband which forms the subject matter of the trial can be proved as per the method and manner as laid down in Section 52A of the NDPS Act by way of producing the certificate given by the Magistrate for inventory as stated therein.
Belated filing of application under Section 52A of the NDPS Act - HELD THAT:- As long as the prosecution is able to justify the delay on its end, mere delay would not vitiate the evidence. To hold otherwise would lead to an odd situation where even a few hours post the threshold of 72 hours would nullify the evidence. The Court has to be cognizant of the ground realities where situations may arise where the sample was not sent to FSL on time or the application under Section 52A of the NDPS Act could not be preferred on time.
A Coordinate Bench of this Court in the case of Rishi Dev @ Onkar Singh v. State (Delhi Admn) [2008 (5) TMI 762 - DELHI HIGH COURT], held that the delay in sending samples to FSL is to be properly explained by the prosecution. It was also observed that the said reason should be evident from the record itself.
In the present case, evidently, the application under Section 52A of the NDPS Act was preferred almost two months after the seizure of the contraband from the applicant. It is open to the applicant to press the aforesaid defence at the time of the trial. However, at this stage, the applicant has failed to establish a prima facie case as to how he has been prejudiced on account of the delayed compliance. In the opinion of this Court, any observation as to the veracity of the recovery on account of delay to grant bail to the applicant would be premature.
Improper Sampling: Non-Compliance Of Standing Order No. 1/88 - HELD THAT:- The substantial compliance of the Standing Orders is a requirement of law and is to be insisted upon to maintain the sanctity of the samples of the seized contraband - the provision of Section 52A of the NDPS Act applies in regard to the disposal of the seized contraband. The manner of mixing the samples is provided for the purpose of filing an application under Section 52A of the NDPS Act and for the disposal of the contraband.
Section 52A of the NDPS Act prescribes the procedure for disposal of seized narcotic drugs and psychotropic substances and the same, in no manner, lays down the procedure for search of the accused and the resultant seizure of the contraband. As discussed above, the Standing Orders issued by the Government from time to time, while exercising power under Section 52A of the NDPS Act, though are a requirement of law which need to be substantially complied with, however, the intent and the provisions thereof, in the opinion of this Court, cannot be imported in the procedure for search and seizure at the time of investigation.
Effect of non-compliance at the stage of bail - HELD THAT:- It has been observed by the Courts on numerous occasions that the police officials fail to strictly adhere to the minute intricacies of the mandate of the standing instructions. Even though the same shows an abysmal state of affairs, this Court is of the opinion that accused persons cannot be allowed to go scot free on minute irregularities in procedure especially when the prosecution has the opportunity to furnish credible explanation - Prima facie, prejudice caused to the applicant due to the procedural lapse is to be seen in such a case. The lapse should be such that it leaves no conclusion other than the trial being vitiated. Noncompliance of standing orders would, at best, cast suspicion over the veracity of the samples of the seized substance. The same can be overcome by the prosecution by producing evidence to the contrary.
This Court is thus not inclined to grant bail to the applicant on the ground of improper sampling.
Non-Joinder of Independent Witnesses and No Photography/ Videography - HELD THAT:- In the present case, secret information was received at about 8:55PM on 15.02.2021. It is the case of the prosecution that the raiding team reached near the Ramlila Maidan at about 9:40 PM and asked 5-7 people along the route to join the investigation, however, all of them left stating their compulsions. It is stated that another attempt was made after reaching the spot to include passers-by in the investigation, however, they left as well. It is stated in the FIR that no notice could be served to the said individuals due to lack of time. Around 11 PM, the co-accused was spotted and subsequently apprehended. Subsequently, the applicant was apprehended at the instance of the co-accused - In the present case, no notice under Section 100 (8) of the CrPC was given to any person on the refusal to support the Investigating Agency during the search procedure. The secret information was received almost two hours prior to the co-accused being apprehended. It is peculiar that the Investigating Agency was unable to associate even a single public witness in the same time, especially since the prosecution had prior secret information and the applicant and coaccused were apprehended at a public place.
Thus, while it is true that the effort, if any, made by the prosecution to have the search conducted in the presence of the independent witnesses would be tested during the course of trial and the same may not be fatal to the case of the prosecution, however, the benefit, at this stage, cannot be denied to the accused.
Delay In Trial - HELD THAT:- It is trite law that grant of bail on account of delay in trial cannot be said to be fettered by the embargo under Section 37 of the NDPS Act - it is evident that despite the stringent requirements imposed on the accused under Section 37 of the NDPS Act for the grant of bail, it has been established that these requirements do not preclude the grant of bail on the grounds of undue delay in the completion of the trial.
In the present case, the trial is likely going to take long. Speedy trial in such circumstances does not seem to be a possibility. The applicant cannot be made to spend the entire period of trial in custody especially when the trial is likely to take considerable time.
This Court is of the opinion that the applicant has made out a prima facie case for grant of bail on the ground of absence of independent witnesses, no photography or videography of the recovery and prolonged delay in the trial - In the present case, the prosecution has been given an adequate opportunity to oppose the present application. In view of the facts of the case, prima facie, this Court is of the opinion, that at this stage, there are reasonable grounds to believe that the applicant is not guilty of the alleged offence. Moreover, it is also not disputed that the applicant has clean antecedents, and is thus not likely to commit any offence whilst on bail.
The applicant is, therefore, directed to be released on bail on furnishing a personal bond for a sum of ₹1,00,000/- with two sureties of the like amount, subject to the satisfaction of the learned Trial Court, on the fulfilment of conditions imposed - bail application allowed.
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2024 (7) TMI 1536
Seeking grant of bail - illegal trafficking of Heroin - Improper sampling and mixing of substances - Delay in filing the application under Section 52A of the NDPS Act - Delay in trial and prolonged incarceration - HELD THAT:- It is settled law that the Court, while considering the application for grant of bail, has to keep certain factors in mind, such as, whether there is a prima facie case or reasonable ground to believe that the accused has committed the offence; circumstances which are peculiar to the accused; likelihood of the offence being repeated; the nature and gravity of the accusation; severity of the punishment in the event of conviction; the danger of the accused absconding or fleeing if released on bail; reasonable apprehension of the witnesses being threatened; etc.
The bar under Section 37 of the NDPS Act is attracted against the applicant as commercial quantity of contraband is involved in the present case.
The issue in regard to improper sampling and any alleged non-compliance of the Standing Order No. 1/88 would be a matter of trial. No benefit can be given to the accused for the alleged non-compliance, at this stage, while considering the application for bail.
In the present case, the charges have been framed against the applicant for the offences under Sections 29, 21 and 23 of the NDPS Act, which are punishable with a minimum punishment of 10 years and a minimum fine of ₹1,00,000/-. Admittedly, the applicant has spent almost three and a half years in custody, however, he has not undergone a minimum of five years of incarceration in the present case to be entitled to bail solely on the ground of delay in trial. It does not seem entirely implausible at this stage that the trial will not conclude within the next one and a half years - considering that the case is pending since the year 2021, this Court considers it apposite to request the learned Trial Court to expedite the trial.
This Court is of the opinion that the applicant has not made out a prima facie case for grant of bail - the bail application is dismissed.
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2024 (7) TMI 1517
Grant of bail - admissibility of statements - Evidence against the present applicant - statements of approvers and witnesses should be disregarded at the stage of bail or not - benefit of the proviso to Section 45 of PMLA being a woman.
Material Collected by Central Bureau of Investigation Against the Applicant Ms. K. Kavitha - HELD THAT:- Evidence in the form of chats retrieved from the mobile phone of Sh. Buchi babu have revealed that Ms. K. Kavitha’s partnership in M/s Indo Spirits, through her proxy Sh. Arun R. Pillai, as well as her assistance to Sh. Raghav Magunta, the approver, in obtaining an NOC for his firm i.e. M/s Pixie Enterprises for Airport retail zone. Furthermore, the photographs retrieved from Sh. Manoj Rai’s phone revealed the details of a meeting that had taken place on 20.09.2021, organized by M/s Pernod Ricard India Pvt. Ltd., to appoint M/s Indo Spirits as a wholesaler, in which Sh. Sharath Chandra Reddy of M/s Aurbindo Group, Sh. Buchibabu, Sh. Sameer Mahendru, Sh. Arun R. Pillai, Sh. Abhishek Boinpally, etc. were present.
In view of the material collected by the investigating agency, this Court is of the opinion that Smt. K. Kavitha was prima facie one of the main conspirators in the criminal conspiracy hatched in relation to formulation and implementation of Delhi Excise Policy 2021-22.
Material Collected by Directorate of Enforcement Against the Applicant Smt. K. Kavitha - HELD THAT:- This Court is of the opinion that Smt. K. Kavitha was prima facie involved in payment of kickbacks, establishing M/s Indo Spirit for recoupment of kickbacks, and in various other processes and activities relating to proceeds of crime, and thus, in commission of offence of money laundering as defined under Section 3 of PMLA, for the purpose of appreciating as to whether the twin condition under Section 45 PMLA are met or not and to arrive at a decision as to whether there was material collected by the investigating agencies against the present applicant.
Whether the statements of approvers and witnesses should be disregarded at the stage of bail? - HELD THAT:- Recording of statements of witnesses, complainant, and in many cases an accused turning approver and his statement being recorded by a judicial magistrate, as well as collection of digital or forensic evidence in various forms results in incriminating material being in possession of the investigating agency, which is placed before the Trial Court for the purpose of its satisfaction regarding grant of remand or bail. Similarly, at the stage of grant of bail before a higher Court, it will be the abovesaid initial material which will be placed before it for the purpose of reaching a conclusion regarding grant of bail or not. It is to be noted that at this stage when the chargesheet has not been filed, the conclusion of investigation and the entire material which will be part of a chargesheet will not be before a Court of law - As per the existing law, the Courts have to rely upon the statements of the witnesses etc. as mentioned above for the purpose of making out a prima facie view regarding involvement of an accused and the extent thereof for the purpose of exercising discretion to grant or deny bail.
This Court is of the opinion that the present bail applications have to be decided on the basis of facts and material collected by the investigating agencies and the contentions regarding grant of bail raised by the learned defence counsels in light of the law and the judicial precedents.
Whether the applicant is entitled to grant of bail at this stage? - HELD THAT:- Having gone through the material placed on record by the Directorate of Enforcement, including the statements of witnesses recorded under Section 50 of PMLA, statements of approvers recorded under Section 164 of Cr.P.C., other documentary evidence collected by the investigating agencies including the recovery of chats, etc., which have been discussed in the preceding paragraphs in detail, this Court is of the view that a prima facie case of commission of money laundering under Section 3 of PMLA against the applicant Smt. K. Kavitha is made out for the purpose of deciding his bail application, since it prima facie appears from such material collected by the Directorate of Enforcement that she was involved in various processes and activities relating to proceeds of crime, and this Court, even considering the broad probabilities of the case, cannot reach a conclusion that the applicant is not guilty of the offence of money laundering, at this stage for the purpose of deciding the bail application. To conclude, the twin conditions under Section 45 of PMLA are not fulfilled in the present case, so as to entitle the applicant to grant of bail in case registered by Directorate of Enforcement.
Whether the Applicant Fulfils the Triple Test for Grant of Bail? - HELD THAT:- As far as triple test for grant of bail is concerned, this Court notes that during the course of investigation, the applicant had presented nine mobile phones for examination on 21.03.2023 before the Directorate of Enforcement, which were found to be formatted with no data. She had denied formatting the devices and had informed the investigating agency that the said phones belonging to her were given by her to her household staff and other staff and that she had got them back for the purpose of handing over to the investigating agency - this Court is also of the opinion that many of the crucial witnesses in this case are either close associates or employees of the present applicant, and since it is the case of applicant herself that she is a well-accomplished woman and holds position of eminence in the field of politics, the possibility of influencing witnesses cannot also be ruled out at this stage. Thus, this Court is of the opinion that the applicant herein does not fulfill the triple test for grant of bail.
Whether the applicant is entitled to the benefit of the proviso to Section 45 of PMLA being a woman? - HELD THAT:- The Hon’ble Supreme Court in the case of Saumya Chaurasia v. Directorate of Enforcement [2023 (12) TMI 685 - SUPREME COURT] has observed that though the Courts should be sensitive and sympathetic to the vulnerable groups such as women, it must also recognize that educated and well-placed women may engage themselves in illegal activities. Therefore, courts are required to exercise their discretion judiciously, considering factors such as the extent of involvement and evidence against the accused when applying this proviso.
Smt. K. Kavitha cannot be equated to a vulnerable woman who may have been misused to commit an offence, which is the class of women for whom the proviso to Section 45 of PMLA has been incorporated, as held by the Hon’ble Apex Court in case of Saumya Chaurasia. Accordingly, this Court is of the considered opinion that Smt. K. Kavitha is not entitled to the benefit of proviso to Section 45 of PMLA.
Tthis Court is of the view that no case for grant of regular bail is made out at this stage - the present bail applications are dismissed.
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2024 (7) TMI 1452
Challenge to proceedings initiated by the appellant – State Bank of India under the SARFAESI Act, 2002 - HELD THAT:- There being a mortgage and the loan amounts recoverable, the appellant is entitled to proceed under the SARFAESI Act - the liability of the guarantor is joint and several with the principal debtor.
The impugned judgment is set aside. Consequently, the appellant– State Bank of India is entitled to proceed under the SARFAESI Act, including the notice under Section 13(4), which was impugned and quashed vide the impugned judgment - Appeal allowed.
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2024 (7) TMI 1451
Requirement of pre-deposit towards compliance with proviso to Section 43 (5) of Real Estate (Regulation and Development) Act, 2016 (RERA) - liability of the Appellant to pay such interest is not in praesenti but in future - direction to deposit of the entire amount of interest when proviso to sub-Section (5) of Section 43 permits deposit of 30% of the penalty.
Requirement of pre-deposit towards compliance with proviso to Section 43 (5) of Real Estate (Regulation and Development) Act, 2016 (RERA) - HELD THAT:- The requirement of making pre-deposit under Proviso to Section 43 (5) is applicable only in respect of an appeal filed by the promoter. When the flat purchaser/allotee files an appeal, there is no requirement of making any pre-deposit. Since the appeals in the present case are filed by the promoter, Proviso to Section 43 (5) gets attracted. According to the Appellant, ‘the total amount to be paid to the allotee including interest and compensation imposed on him’ within the meaning of the Proviso has to be the amount which is payable on the date of passing of Order by MahaRERA. That such ‘total amount’ does not and cannot mean the amount which is payable to the complainant in future.
It must be borne in mind that the special exemption for deferring the payment of interest by Appellant is given only for the purpose of ensuring that the entire project is not put in jeopardy and that other flat/office purchasers do not suffer. This dispensation is not granted to protect any interest of the promoter. Such deferment would therefore not mean that promoter would get a licence to treat the Order passed by MahaRERA as imposing no obligation as on the date of passing of the Order. If the promoter decides to challenge MahaRERA’s order, the protection of deferment of payment of interest cannot be applied while deciding the issue of pre-deposit under Proviso to Section 43 (5). There is determination of the amount by the Regulatory Authority, the liability on promoter is fastened and only the time for making the payment is postponed. Therefore it cannot be countenanced that no liability is fixed at the present on Appellant.
The objective behind making mandatory pre-deposit under proviso to Section 43 (5) is to put a deterrent on promoters from engaging flat purchasers in endless litigation without any consequences for him. If this objective is borne in mind, permitting Appellant to prosecute Appeals challenging MahaRERA’s order without any consequence of making pre- deposit would destroy the very objective behind incorporation of Proviso to sub Section 5 of Section 43.
Even if liability to pay interest is deferred by MahaRERA in the overall interest of the project, such deferment is granted only if the promoter is willing to be abide by the Order of the Regulatory Authority. Such deferment will have no effect on promoter’s liability to make pre-deposit under Proviso to sub Section 5 of Section 43. Therefore, Appellant must deposit the amount quantified by the Appellate Tribunal as a pre-condition for entertainment of its Appeals.
The Appellant must deposit the amount of interest as directed by MahaRERA as a pre-condition for entertainment of Appeals before the Appellate Tribunal, even though its liability to pay such interest is not in praesenti but in future. This would however be subject to deduction of amount of interest in respect of COVID-19 pandemic period as per Notifications/Order Nos. 13 and 14 dated 2 April 2020 and 18 May 2020.
Deposit of 30% penalty under Proviso to sub-Section 5 of Section 43 - HELD THAT:- It is fairly conceded that what is directed to be paid by MahaRERA is not penalty but interest, which would be covered by the expression ‘the total amount to be paid to the allotee’. In the light of the above, the second question formulated can be answered holding that the entire amount awarded by MahaRERA (subject to minor modification) must be deposited and issue of deposit of any penalty does not arise in the present case.
The Appeals filed by Appellant are partly allowed to the limited extent of directing the Appellate Tribunal to deduct the amount of interest payable during the moratorium period covered by Notifications/Order Nos. 13 and 14 dated 2 April 2020 and 18 May 2020 issued by MahaRERA. The Judgment and Order of the Appellate Tribunal dated 31 October 2022 shall be modified to this limited extent and rest of the Order is maintained.
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2024 (7) TMI 1390
Nature of Royalty - Distribution of legislative powers between the Union and the States on the taxation of mineral rights - true nature of royalty determined under Section 9 read with Section 15(1) of the MMDR Act - ‘royalty is in the nature of tax or not - scope of Entry 50 of List II of the Seventh Schedule - ambit of the limitations imposable by Parliament in exercise of its legislative powers under Entry 54 of List I - Does Section 9, or any other provision of the MMDR Act, contain any limitation with respect to the field in Entry 50 of List II? - expression “subject to any limitations imposed by Parliament by law relating to mineral development” in Entry 50 of List II pro tanto subjects the entry to Entry 54 of List I, which is a non-taxing general entry - any departure from the general scheme of distribution of legislative powers as enunciated in M P V Sundararamier [1958 (3) TMI 40 - SUPREME COURT] or not - scope of Entry 49 of List II and whether it covers a tax which involves a measure based on the value of the produce of land - constitutional position be any different qua mining land on account of Entry 50 of List II read with Entry 54 of List I or not - Entry 50 of List II is a specific entry in relation to Entry 49 of List II, and would consequently subtract mining land from the scope of Entry 49 of List II.
What is the true nature of royalty determined under Section 9 read with Section 15(1) of the MMDR Act? Whether royalty is in the nature of tax?
As per Dr Dhananjaya Y Chandrachud, CJI (majority view) - Royalty is not a tax. Royalty is a contractual consideration paid by the mining lessee to the lessor for enjoyment of mineral rights. The liability to pay royalty arises out of the contractual conditions of the mining lease. The payments made to the Government cannot be deemed to be a tax merely because the statute provides for their recovery as arrears.
As per NAGARATHNA, J. (dissenting view) - The true nature of royalty determined under Section 9 read with Section 15(1) of the MMDR Act, 1957 is that it is in the nature of a tax coming within the scope and ambit of Article 366(28) of the Constitution which defines taxation to include the imposition of any tax or impost, whether general or local or special and the word “tax” is to be construed accordingly.
What is the scope of Entry 50 of List II of the Seventh Schedule? What is the ambit of the limitations imposable by Parliament in exercise of its legislative powers under Entry 54 of List I? - Does Section 9, or any other provision of the MMDR Act, contain any limitation with respect to the field in Entry 50 of List II? - Whether the expression “subject to any limitations imposed by Parliament by law relating to mineral development” in Entry 50 of List II pro tanto subjects the entry to Entry 54 of List I, which is a non-taxing general entry? Consequently, is there any departure from the general scheme of distribution of legislative powers as enunciated in M P V Sundararamier [1958 (3) TMI 40 - SUPREME COURT]?
As per Dr Dhananjaya Y Chandrachud, CJI (majority view) - Entry 50 of List II does not constitute an exception to the position of law laid down in M P V Sundararamier (supra). The legislative power to tax mineral rights vests with the State legislatures. Parliament does not have legislative competence to tax mineral rights under Entry 54 of List I, it being a general entry. Since the power to tax mineral rights is enumerated in Entry 50 of List II, Parliament cannot use its residuary powers with respect to that subject-matter.
Entry 50 of List II envisages that Parliament can impose “any limitations” on the legislative field created by that entry under a law relating to mineral development. The MMDR Act as it stands has not imposed any limitations as envisaged in Entry 50 of List II - The scope of the expression “any limitations” under Entry 50 of List II is wide enough to include the imposition of restrictions, conditions, principles, as well as a prohibition.
As per NAGARATHNA, J. (dissenting view) - Entry 50 - List II of the Seventh Schedule is, no doubt, a taxation Entry which deals with taxes on mineral rights. But this Entry is subject to any limitations imposed by Parliament by law relating to mineral development. The use of the word “any” means the limitation could be in any form which can be imposed only by the Parliament by law relating to mineral development. In view of the use of the expression “any limitations”, it must be given the widest possible meaning to include a limitation in the form of Sections 9 and 9A, 25 or any other provision of the MMDR Act, 1957 and Rules made thereunder which act as a limitation to Entry 50 - List II.
The expression “subject to any limitations imposed by Parliament by law relating to mineral development” in Entry 50 - List II pro tanto subjects the Entry to Entry 54 - List I. The use of the expression “any limitations” would mean that the taxing Entry would be subject to a nontaxing or general Entry such as in Entry 54 - List I which could also be termed as a regulatory Entry. Consequently, there is a departure from the general scheme of distribution of legislative powers as enumerated in MPV Sundararamier insofar as Entry 50 - List II read with Entry 54 - List I is concerned which is unique to Entry 50 – List II. This is having regard to the significance of Entry 54 – List I which also overrides Entry 23 – List II.
What is the scope of Entry 49 of List II and whether it covers a tax which involves a measure based on the value of the produce of land? Would the constitutional position be any different qua mining land on account of Entry 50 of List II read with Entry 54 of List I? - Whether Entry 50 of List II is a specific entry in relation to Entry 49 of List II, and would consequently subtract mining land from the scope of Entry 49 of List II?
As per Dr Dhananjaya Y Chandrachud, CJI (majority view) - The State legislatures have legislative competence under Article 246 read with Entry 49 of List II to tax lands which comprise of mines and quarries. Mineralbearing land falls within the description of “lands” under Entry 49 of List II - The yield of mineral bearing land, in terms of the quantity of mineral produced or the royalty, can be used as a measure to tax the land under Entry 49 of List II. The decision in Goodricke [1994 (11) TMI 353 - SUPREME COURT] is clarified to this extent.
Entries 49 and 50 of List II deal with distinct subject matters and operate in different fields. Mineral value or mineral produce can be used as a measure to impose a tax on lands under Entry 49 of List II - The “limitations” imposed by Parliament in a law relating to mineral development with respect to Entry 50 of List II do not operate on Entry 49 of List II because there is no specific stipulation under the Constitution to that effect.
The decisions in INDIA CEMENT LIMITED VERSUS STATE OF TAMIL NADU [1989 (10) TMI 53 - SUPREME COURT], Orissa Cement [1991 (4) TMI 436 - SUPREME COURT], Federation of Mining Associations of Rajasthan [1991 (8) TMI 350 - SUPREME COURT], Mahalaxmi Fabric Mills [1995 (2) TMI 435 - SUPREME COURT], Saurashtra Cement [2000 (10) TMI 954 - SUPREME COURT], Mahanadi Coalfields [1995 (4) TMI 285 - SUPREME COURT], and P Kannadasan [1996 (7) TMI 554 - SUPREME COURT] are overruled to the extent of the observations made in the present case.
As per NAGARATHNA, J. (dissenting view) - Entry 49 - List II deals with taxation of lands and buildings. It does not cover taxes on mineral bearing lands. The constitutional position is different qua mineral bearing lands on account of Entry 50 - List II read with Entry 54 - List I and Section 2 of the MMDR Act, 1957. Consequently, any imposition on the basis of royalty by a State Legislature or involving royalty as a measure of the value of the minerals extracted from the land is impermissible.
Entry 50 - List II is a specific Entry in relation to Entry 49 - List II and would consequently subtract mining lands from the scope of Entry 49 - List II. This is particularly so having regard to Entry 50 - List II to be read with Entry 54 - List I and Section 2 of the MMDR Act, 1957.
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2024 (7) TMI 1389
Jurisdiction of the Civil Court u/s 34 of SARFAESI Act - suit for declaration and permanent prohibitory injunction - Order VII, Rule 11 read with Section 151 of the CPC - whether there is any substantial question of law involved in this second appeal? - HELD THAT:- It is a settled law that the existence of substantial question of law is the sine qua non for the exercise of jurisdiction under Section 100 of the Code. Section 100 provides that the second appeal would lie to the High Court from a decree passed in appeal by any court subordinate to the High Court if the High Court is satisfied that the case "involves a substantial question of law". It further provides that the memorandum of appeal shall precisely state the substantial question of law involved in the appeal and the High Court on being satisfied that the substantial question of law is involved in a case formulate the said question. Subsection (5) provides that the "appeal shall be heard on the question so formulated" - It is abundantly clear from the analysis of Section 100 that if the appeal is entertained without framing the substantial questions of law, then it would be illegal and would amount to failure or abdication of the duty cast on the court.
In Santosh Hazari vs. PurushottamTiwari [2001 (2) TMI 131 - SUPREME COURT], the Hon’ble Supreme Court has held that 'To be a question of law “involving in the case” there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter.'
The perusal of the aforesaid section shows that no civil court shall have any jurisdiction to entertain any suit or proceeding in respect of any matter, which the Debt Recovery Tribunal is empowered by or under SARFESI Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under the aforesaid Act.
It is clear that no civil court can exercise jurisdiction to entertain any suit or proceeding in respect of any matter which Debt Recovery Tribunal or Appellate Tribunal is empowered to determine and no injunction can be granted by any court taken in pursuance of any power conferred by or under the SARFESI Act or under the Recovery of Debts Due to Banks and Financial Institutions Act.
In the instant case, except for the use of the word “fraud”, no particulars of the allegations of fraud have been specifically pleaded as mandated by the provisions of Order 6 Rule 4 of the Civil Procedure Code,1908. Thus, the plea of jurisdiction of the Civil Court based on the allegations of fraud cannot be countenanced. Hence in view of provisions of Section 34 of the SARFESI Act, both the learned Courts below have rightly rejected the plaint.
Thus, no question of law, what to say of a substantial question of law is involved in the instant case. Accordingly, it is found that no illegality or perversity in the judgments passed by both the Courts below in rejecting the plaint under Order 7 Rule 11 CPC - appeal dismissed.
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2024 (7) TMI 1351
Forum shopping - direction to respondents to provide an alternate flat in vicinity as that of flat which was booked by the petitioners in their project namely NBCC Green view Apartments - direction to respondents to refund the amount paid by the petitioners with reciprocal interest @ 15% per annum and with compensation for mental torture, agony, and harassment; and to pay extra compensation - HELD THAT:- This is a classic case of extreme hardships suffered by a home buyer who has been made to run from pillar to post after having spent his entire life savings. It is unfortunate that a 'State' under Article 12 of the Constitution of India has raised this objection that the Petitioner is guilty of forum shopping. A helpless home buyer who has sunk his life savings has no other option but to knock door after door and hoping against hope that he ould be able to get his money back.
In the present case, the Petitioner entered into the agreement way back in the year 2012. In five years, the Petitioner has pumped in over Rs. 76 lakhs. A 'No Dues Certificate' has been given to the Petitioner. Structural defects have been found out in the construction after certain persons started occupying the flats. Petitioners and several other persons have been left in lurch and have been forced to knock the doors of various forums.
NBCC is an instrumentality of the State. It is well settled that the 'State' is duty bound to act reasonably and fairly. In NOIDA ENTREPRENEURS ASSOCIATION VERSUS NOIDA & ORS. [2011 (5) TMI 1043 - SUPREME COURT], the Apex Court held that the State or the public authority which holds the property of the public acts as a trustee, and therefore, has to act fairly and reasonably. The State or the instrumentality of the State is accountable to the people and it is supposed to act in public good promoting public interest. An action of a State or the instrumentality of the State stands vitiated if it lacks bonafides.
Admittedly, the total consideration of the flat has been paid in 2017. Material on record indicates that there are structural defects in the buildings. In view of the fact that the Petitioner has been deprived of his money for the last 10 years, structurally defective houses have been constructed by the NBCC, the Petitioner has been left in complete lurch, the refusal of the Respondent which is a State to pay interest on the amounts which it held in trust of the Petitioners and the reluctance to ensure that the Petitioner is rehabilitated effectively, the Respondent should be dealt with severely.
This Court is, therefore, inclined to allow the instant writ petition directing the Respondent/NBCC to return the entire amount of money paid by the Petitioners within a period of six weeks from today along with interest @ 12% from 30.01.2021 till today - In view of the fact that the Petitioner has been forced to shift accommodation and fend for himself in the last seven years and has been put to extreme mental agony, this Court is inclined to direct the NBCC to pay a sum of Rs.5 lakh to the Petitioner.
Petition allowed.
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2024 (7) TMI 1308
Dishonour of Cheque - vicarious liability in criminal law - Whether the signatory of the cheque, authorized by the "Company", is the "drawer" and whether such signatory could be directed to pay interim compensation in terms of section 143A of the Negotiable Instruments Act, 1881 leaving aside the company? - HELD THAT:- The High Court's interpretation of Section 7 of the NI Act accurately identified the "drawer" as the individual who issues the cheque. This interpretation is fundamental to understanding the obligations and liabilities under Section 138 of the NI Act, which makes it clear that the drawer must ensure sufficient funds in their account at the time the cheque is presented. The appellants' argument that directors or other individuals should also be liable under Section 143A misinterprets the statutory language and intent. The primary liability, as correctly observed by the High Court, rests on the drawer, emphasizing the drawer's responsibility for maintaining sufficient funds.
The general rule against vicarious liability in criminal law underscores that individuals are not typically held criminally liable for acts committed by others unless specific statutory provisions extend such liability. Section 141 of the NI Act is one such provision, extending liability to the company's officers for the dishonour of a cheque - The High Court rightly emphasized that liability under Section 141 arises from the conduct or omission of the individual involved, not merely their position within the company.
The High Court’s decision to interpret 'drawer' strictly as the issuer of the cheque, excluding authorized signatories, is well-founded. This interpretation aligns with the legislative intent, established legal precedents, and principles of statutory interpretation. The primary liability for an offence under Section 138 lies with the company, and the company’s management is vicariously liable only under specific conditions provided in Section 141. The appellants' submissions are thus rejected, and the High Court’s judgment is upheld.
Appeal dismissed.
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