CAN’T OUST WOMAN FROM MATRIMONIAL HOME ON THE BASIS OF SUMMARY PROCEEDINGS UNDER SENIOR CITIZENS ACT: ALLAHABAD HC - The Daily Guardian
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CAN’T OUST WOMAN FROM MATRIMONIAL HOME ON THE BASIS OF SUMMARY PROCEEDINGS UNDER SENIOR CITIZENS ACT: ALLAHABAD HC

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While firmly espousing, endorsing and vindicating the right of the woman to her matrimonial home, the Allahabad High Court has in an extremely brilliant, bold, balanced and brief 10-page judgment titled Smt. Khushboo Shukla vs District Magistrate, Lucknow & Ors in Misc. Single No. – 16212 of 2021 delivered just recently on November 2, 2021 has made it explicitly clear that the wife cannot be ousted from her matrimonial home on the basis of the summary proceedings under the Senior Citizens Act, 2007. It must be mentioned here that the Single Judge Bench comprising of Hon’ble Justice Vivek Chaudhary of Lucknow Bench of Allahabad High Court while setting an exemplary trend came to the aid of a widow by setting aside an eviction order passed against her and her son from her in-laws house. Most brilliantly, Justice Vivek while referring to the December 2020 ruling of the Apex Court in the case of S Vanitha vs Deputy Commissioner, Bengaluru Urban District [Civil Appeal No. 3822 of 2020] thus held that, “Senior Citizens Act, 2007 and PWDV Act, 2005 are to be read simultaneously and a wife cannot be ousted from her matrimonial home on the basis of the summary proceedings under the Senior Citizens Act, 2007.”

To start with, the ball is set rolling first and foremost in para 1 of this cogent, courageous, composed, commendable and convincing judgment authored by a single Judge Bench of Justice Vivek Chaudhary of Lucknow Bench of Allahabad High Court wherein it is put forth that, “Present is an unfortunate litigation between the petitioner widow and her only son with her in-laws (private respondents).”

While dwelling on the purpose of filing the writ petition, the Bench then points out in para 2 that, “The writ petition is filed challenging the order dated 14.07.2021 passed by the Sub Divisional Magistrate, Sadar, Lucknow in Case No.75 of 2019, filed under the U.P. Maintenance and Welfare of Parents and Senior Citizens Rules, 2014 (hereinafter referred to as ‘Senior Citizens Rules, 2014’) whereby direction for eviction of petitioner from the House No.3/347, Vishal Khand, Gomti Nagar, Lucknow (house at Gomti Nagar, Lucknow) within 15 days of receiving of the order has been issued.”

To put things in perspective, the Bench then while elaborating on the facts of the case then envisages in para 3 that, “Facts of the case are that petitioner Smt. Khushboo Shukla and Sri Gaurav Shukla got married on 04.02.2013. Initially, they were living with the parents of Sri Gaurav Shukla in House No. 54/4, Veer Nagar, Udaiganj, Lucknow (house at Udaiganj, Lucknow). However, soon thereafter certain family disputes arose and, therefore, petitioner and her husband started living separately on the ground floor of the house at Gomti Nagar, Lucknow. On 21.07.2015, a son Shikhar Salil Shukla was born out of the wedlock. Husband of petitioner Sri Gaurva Shukla expired on 15.07.2019 leaving behind his minor son, wife and his parents. Petitioner alleges that after the death of her husband, private respondents started harassing her, including for dowry. In the said background, she lodged several F.I.Rs. She also filed a Complaint Case No. 1136 of 2019; ‘Khushboo Shukla & another Vs. Kavita Shukla & others’ on 06.11.2019 before the Court of Special Chief Judicial Magistrate (A.P.), Lucknow, under Section 12 and 13 of the Protection of Women from Domestic Violence Act, 2005 (PWDV Act, 2005). By the said complaint case, she sought maintenance for herself and her son and also prayed for restraining the private respondents from dispossessing the petitioner and her son from the house at Gomti Nagar, Lucknow, wherein she was residing since before the death of her husband. Meanwhile, private respondents also filed a Case No.75 of 2019 on 25.10.2019 under Rule 21 and 22 of the Senior Citizens Rules, 2014. By the said case, the private respondents asked for possession of house at Gomti Nagar, Lucknow by evicting the petitioner from the same. By order dated 17.02.2020, Special Additional Chief Judicial Magistrate (A.P.), Lucknow in Complaint Case No.1136 of 2019 filed by petitioner granted maintenance of Rs.3000/- per month to petitioner and Rs. 2000/- per month to her son and further restricted the private respondents from evicting the petitioner from the house at Gomti Nagar, Lucknow. The private respondents have not challenged the said order. Soon thereafter, the Sub-Divisional Magistrate, Sadar, Lucknow in Case No. 75 of 2019 filed by private respondents passed the impugned order dated 14.07.2021 directing eviction of the petitioner from the house at Gomti Nagar, Lucknow within 15 days of receiving the award. Thus, the present writ petition is filed challenging the order dated 14.07.2021.”

No doubt, the Bench then rightly points out in para 4 that, “Learned counsel for petitioner submits that though initially petitioner was granted an interim protection by this Court but the same could not be extended and her belongings were thrown on the road and she was forcefully evicted from the house at Gomti Nagar, Lucknow on 08.09.2021.”

In hindsight, the Bench then recalls in para 5 that, “This court passed an order on 17.09.2021 and tried for an amicable solution between the parties as both counsels for the parties agreed for mediation. However, the parties could not come up with a settlement suitable for both the parties.”

Be it noted, the Bench then hastens to add in para 9 that, “The Senior Citizens Act, 2007 is divided in the separate chapters. Chapter-II runs from Section 2 to 18. Chapter-II of the Senior Citizens, Act, 2007 provides for “Maintenance of Parents and Senior Citizens”. Under Section 4 it provides that senior citizens including parents who are unable to maintain themselves from their own earning or property shall be entitled to make application under Section 5 before the Tribunal. Section 6 provides for jurisdiction and procedure of the Tribunal. Section 7 provides for constitution of Maintenance Tribunal. Section 8 provides for summary procedure of inquiry to be conducted by the Tribunal. Section 9 provides for order for maintenance in the given cases. Section 10 provides for alteration of order of maintenance and further directions. Section 15 and 16 provide for constitution of Appellate Tribunal and appeals. Section 17 and 18 prescribe with regard to legal representation and maintenance officer. Thus, Chapter-II is a complete code in itself with regard to claim of maintenance by senior citizens and its disposal by the Tribunal, appeal against such an order before the Appellate Tribunal and execution of the same. Therefore, Section 16 relates to appeal against the order passed by the Maintenance Tribunal and no further. Chapter-V of the Senior Citizens, Act, 2007 provides for “Protection of Life and Property of Senior Citizen”. Section 22 of the same reads as:-

“Section 22-Authorities who may be specified for implementing the provisions of this Act:- (1) The State Government may, confer such powers and impose such duties on a District Magistrate as may be necessary, to ensure that the provisions of this Act are properly carried out and the District Magistrate may specify the officer, subordinate to him, who shall exercise all or any of the powers, and perform all or any of the duties, so conferred or imposed and the local limits within which such powers or duties shall be carried out by the officer as may be prescribed.

(2) The State Government shall prescribe a comprehensive action plan for providing protection of life and property of senior citizens.”

Under the said Section, the State Government may confer power and impose duties upon the District Magistrate as may be necessary for implementing the provisions of the Senior Citizens, Act, 2007. In exercise of the said power under Rule 21 of the Senior Citizens, Rules, 2014, the duties and powers of District Magistrate is prescribed as follows:-

“21. Duties and Power of the District Magistrate.-(1) The District Magistrate shall perform the duties and exercise the powers mentioned in sub-rules (2) and (3) so as to ensure that the provisions of the Act are properly carried out in his district.

(2) It shall be the duty of the District Magistrate to:

(i) ensure that life and property of senior citizens of the district are protected and they are able to live with security and dignity,

(ii) oversee and monitor the work of Maintenance Tribunals Maintenance Officers of the district with a view to ensuring timely and fair disposal of applications for maintenance, and execution Tribunals’ orders;

(iii) oversee and monitor the working of old age homes in the district so as to ensure that they conform to the standards laid down in these rules and any other guidelines and orders of the Government;

(iv) ensure regular and wide publicity of the provisions of the Act, Central and State Governments, programmes for the welfare of senior citizens;

(v) encourage and co-ordinate with panchayats, municipalities, Nehru Yuva Kendras, educational institutions and especially their National Service Scheme Units, Organisations, specialists, experts activists, etc. working in the district so that their resources efforts are effectively pooled for the welfare district; senior citizens of the district;

(vi) ensure provision of timely assistance and relief to senior citizens in the event of natural calamities and other emergencies:

(vii) ensure periodic sensitisation of officers of various Departments and Local Bodies concerned with welfare of senior citizens, towards the needs of such citizens, and the duty of the officers towards the latter,

(viii) review the progress of investigation and trial of cases relating to senior citizens in the district, except in cities having a Divisional Inspector General of Police.

(ix) ensure that adequate number of prescribed application forms for maintenance are available in officers of common contact for citizens like Panchayats, Block Development Offices, Tahsildar Offices, District Social Welfare Offices, Collectorate, Police Station etc.; (x) promote establishment of dedicated helplines for senior citizens at district headquarters, to begin with; and

(xi) perform such other functions as the Government, may by order, assign to the District Magistrate in this behalf, from time to time.

(3) With a view to performing the duties mentioned in sub-rule (2), the District Magistrate shall be competent to issue such directions, not inconsistent with the Act; these rules, and general guidelines of the Government, as may be necessary, to any concerned Government or statutory agency or body working in the district, and especially to the following:

(a) Officers of the State Government in the Police, Health and Publicity Departments, and the Department dealing with welfare of senior citizens;

(b) Maintenance Tribunals and Conciliation Officers;

(c) Panchayats and Municipalities; and

(d) Educational Institution.”

Under Rule 21(2)(i), the District Magistrate is to ensure that life and property of senior citizens are protected and they are able to live with security and dignity. In exercise of the said powers, the proceedings are held by the Sub Divisional Magistrate, Sadar, Lucknow and impugned order of eviction is passed. There is no appeal provided against an order passed under Rule 22 of the Senior Citizens, Rules, 2014 and the rules are silent in this regard. The power of appeal provided under Section 16 of the Senior Citizens Act, 2007 with regard to Appellate Tribunal constituted under Section 15 is only relating to any order passed under Chapter-II which relates to maintenance of senior citizens and parents. Neither the Maintenance Tribunal constituted under Section 7 has any power to direct eviction nor such power is vested in the Appellate Tribunal. They both can only pass order with regard to maintenance of senior citizens and parents. The power of eviction is exercised under Rule 21 which is framed for giving effect to powers under Section 22 of the Senior Citizens Act, 2007 which falls under Chapter-V of the Act. There is no provision of appeal against any of these orders either under Chapter-V of the Senior Citizens Act, 2007 or under the Senior Citizens Rules, 2014. Therefore, submission of counsel for private respondents that appeal would lie before the Appellate Tribunal constituted under Section 15 read with Section 16 of the Senior Citizens Act, 2007 before the Appellate Tribunal constituted for the purposes of maintenance is incorrect and is rejected.”

To be sure, the Bench then adds in para 10 that, “Coming to the merits of the case, learned counsel for petitioner submits that the impugned order is illegal and directly in teeth of the apex court judgement reported in 2020 SCC OnLine SC 1023 (S. Vanitha vs. Deputy Commissioner, Bengaluru Urban District and Other) which is opposed by the private respondents.”

Quite sagaciously and forthrightly, the Bench then waxes eloquent to state in para 11 that, “In the present case, the impugned order is passed by the Sub-Divisional Magistrate, Sadar, Lucknow ignoring the law settled by the apex Court in case of S. Vanitha (supra). Paragraph-38 and 39 of the said judgment reads:-

“38. The above extract indicates that a significant object of the legislation is to provide for and recognize the rights of women to secure housing and to recognize the right of a woman to reside in a matrimonial home or a shared household, whether or not she has any title or right in the shared household. Allowing the Senior Citizens Act 2007 to have an overriding force and effect in all situations, irrespective of competing entitlements of a woman to a right in a shared household within the meaning of the PWDV Act 2005, would defeat the object and purpose which the Parliament sought to achieve in enacting the latter legislation. The law protecting the interest of senior citizens is intended to ensure that they are not left destitute, or at the mercy of their children or relatives. Equally, the purpose of the PWDV Act 2005 cannot be ignored by a sleight of statutory interpretation. Both sets of legislations have to be harmoniously construed. Hence the right of a woman to secure a residence order in respect of a shared household cannot be defeated by the simple expedient of securing an order of eviction by adopting the summary procedure under the Senior Citizens Act 2007.

39. This Court is cognizant that the Senior Citizens Act 2007 was promulgated with a view to provide a speedy and inexpensive remedy to senior citizens. Accordingly, Tribunals were constituted under Section 7. These Tribunals have the power to conduct summary procedures for inquiry, with all powers of the Civil Courts, under Section 8. The jurisdiction of the Civil Courts has been explicitly barred under Section 27 of the Senior Citizens Act 2007. However, the over-riding effect for remedies sought by the applicants under the Senior Citizens Act 2007 under Section 3, cannot be interpreted to preclude all other competing remedies and protections that are sought to be conferred by the PWDV Act 2005. The PWDV Act 2005 is also in the nature of a special legislation, that is enacted with the purpose of correcting gender discrimination that pans out in the form of social and economic inequities in a largely patriarchal society. In deference to the dominant purpose of both the legislations, it would be appropriate for a Tribunal under the Senior Citizens Act, 2007 to grant such remedies of maintenance, as envisaged under S.2(b) of the Senior Citizens Act 2007 that do not result in obviating competing remedies under other special statutes, such as the PWDV Act 2005. Section 26 of the PWDV Act empowers certain reliefs, including relief for a residence order, to be obtained from any civil court in any legal proceedings. Therefore, in the event that a composite dispute is alleged, such as in the present case where the suit premises are a site of contestation between two groups protected by the law, it would be appropriate for the Tribunal constituted under the Senior Citizens Act 2007 to appropriately mould reliefs, after noticing the competing claims of the parties claiming under the PWDV Act 2005 and Senior Citizens Act 2007. Section 3 of the Senior Citizens Act, 2007 cannot be deployed to over-ride and nullify other protections in law, particularly that of a woman’s right to a ‘shared household’ under Section 17 of the PWDV Act 2005. In the event that the “aggrieved woman” obtains a relief from a Tribunal constituted under the Senior Citizens Act 2007, she shall duty-bound to inform the Magistrate under the PWDV Act 2005, as per Sub-section (3) of Section 26 of the PWDV Act 2005. This course of action would ensure that the common intent of the Senior Citizens Act 2007 and the PWDV Act 2005 of ensuring speedy relief to its protected groups who are both vulnerable members of the society, is effectively realized. Rights in law can translate to rights in life, only if there is an equitable ease in obtaining their realization.”

As a corollary, the Bench then observes in para 12 that, “From the aforesaid judgment of the Supreme Court, it stands settled that both the Acts i.e. Senior Citizens, Act, 2007 and PWDV Act, 2005 are to be read simultaneously and a wife cannot be ousted from her matrimonial home on the basis of the summary proceedings under the Senior Citizens Act, 2007. In the present case, the Sub-Divisional Magistrate, Sadar, Lucknow has passed the order in violation of the law settled by the Supreme Court by directing eviction of the petitioner under the provisions of Senior Citizens Act, 2007.”

Most commendably and also most significantly, what forms the cornerstone of this extremely learned judgment is then summarized in para 15 wherein it is held that, “This Court does not find any force in the submissions of the private respondents. Conflicting submissions without any supportive cogent evidence are being made with regard to the tenants on the floors above. On one hand it is stated that tenants are planted by the petitioner and on the other hand it is claimed that petitioner is disturbing their movements. A categorical statement is given by the petitioner that she is neither interfering in lives or movements of the persons living above the ground floor nor any of them is a tenant of the petitioner or planted by her. There is nothing specifically stated by the private respondents as to how the petitioner is damaging the property. There is no finding given in the impugned order that petitioner has occupied any of the floors other than the ground floor in an illegal manner or that she has obstructed the movements of any person of floors above the ground floor. There is no finding that petitioner has caused any damage to the property in any manner whatsoever. In absence of any such finding, the impugned order could not have been passed. Further, admittedly, the private respondents are having number of properties. They are living in their own house at Udaiganj, Lucknow. Petitioner with her son was living on the ground floor of the multi-story house at Gomti Nagar, Lucknow. Petitioner and her son have no concern with any of the floors above the ground floor of the said house from which they have been evicted in furtherance of the impugned order. I do not find any circumstance under which it can be stated that they were causing any damage or interfering in any manner with the lives of the private respondents. On the contrary, by their ousting they have been left roofless and to put great inconvenience.”

As it turned out, the Bench then holds in para 16 that, “In the given facts and circumstances of the case, the impugned order dated 14.07.2021 cannot stand and is aside. Respondents are directed to hand over the possession of the ground floor of the House No.3/347, Vishal Khand, Gomti Nagar, Lucknow to the petitioner and her son forthwith. Petitioner shall not in any manner interfere with the ingress and egress of the occupants of the floors above the ground floor. Private respondents also shall not disturb or interfere in any manner with the living of the petitioner and her son in the said property.”

Finally, the Bench then concludes by holding in para 17 that, “With the aforesaid, present writ petition stands allowed.”

In sum, Justice Vivek Chaudhary of the Lucknow Bench of Allahabad High Court has very commendably delivered an extremely brilliant judgment which protects women from being evicted by her in-laws or husband on the basis of summary proceedings under the Senior Citizens Act. All the Judges of India must definitely always adhere to what Justice Vivek Chaudhary has laid down so exceptionally well in this leading case. No denying it!

Sanjeev Sirohi, Advocate.

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GAUHATI HIGH COURT QUASHES NO-CONFIDENCE MOTION AGAINST GRAM PANCHAYAT PRESIDENT CITING PARTICIPATION OF MEMBER DISQUALIFIED FOR HAVING THREE CHILDREN

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The Gauhati High Court in the case Jugitawali Pawe v State of Assam and 15 ors observed and quashed a resolution expressing no-confidence in the petitioner – the President of a Gram Panchayat, as a result of which she as removed from office. It was stated that it is as per the citing no compliance with Assam Panchayat Act, 1994, reading with Rule 62 of the Assam Panchayat (Constitution) Rules, 1995.

It was preferred by the petitioner to the materials available on record to argue that one of the members of the Gaon Panchayat, the respondent. The respondent voted against the petitioner and had given birth to her third child the previous year. Moreover, by virtue of Section 111(2)(a) of the Assam Panchayat Act, 1994, reading with Rule 62 of the Assam Panchayat (Constitution) Rules, 1995, the petitioner stood automatically disqualified on the date of voting. Following, which her vote was taken by passing No-confidence motion.

It was prayed by the petitioner in the plea for setting aside the impugned resolution and for issuance of a direction to restore his client back in the office. Thereafter, to initiate fresh proceedings, liberty should be granted to the respondent, following the due process.

It was agreed by the Counsel representing for the respondent that the said member of the panchayat had been disqualified but retained on the ground that the disqualification would have no bearing on the petitioner’s case, as the impugned resolution was passed before the declaration of petitioner disqualification.

In the present case, It was noticed by Justice Suman Shyam the member had voted against the petitioner and without her vote. The petitioner would not have been ousted from office. Justice Shyam also found no dispute about the fact that the member had incurred disqualification under the law prior the date of adoption of the impugned resolution. Justice Shyam found it unnecessary to delve into other aspects of the matter which includes the procedural formalities for declaring the member a disqualified candidate.

It is observed that the impugned resolution was declared to be vitiated and liable to be set aside. Further, the Court restored the petitioner to the office of the President of the Bongalmara Gaon Panchayat with immediate effect and it was stated by the court that the order will not stand in the way should the authorities or any member of the Gaon Panchayat propose a fresh motion of “no-confidence” against the petitioner and the due process of law needs to be followed.

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Halt DDA’s demolition action against jhuggis in Nizamuddin’s Gyaspur area, orders Delhi High Court

As per the JJ Rehabilitation and Relocation Policy 2015 and the Delhi Urban Shelter Improvement Board, the residents who can establish their residence prior to 01.01.2015 are eligible for rehabilitation under the JJ Rehabilitation and Relocation Policy 2015.

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plea in Delhi High Court seeking repatriation of 56 pregnant nurses

The Delhi High Court in the case Manoj Gupta & Ors. v. DDA & Ors observed and has ordered status quo on the Delhi Development Authority’s proposal to demolish jhuggi clusters in city’s Gyaspur area in Hazrat Nizamuddin. The vacation bench comprising of Justice Neena Bansal Krishna observed in the petition filled by the residents and the court granted an interim relief.

It was ordered by the court status quo till July 11, the next date of hearing.

The bench orally remarked that a ten-day delay in demolition won’t make a difference but if today it is demolished and later, we come to know that they were entitled, who’s going to… the bench will consider it on July 11, 2022 but in the Meanwhile, some protections are entitled them. Adding this, Status quo be maintained. If since 1995, they have been there, heavens won’t come down if for 10 more days they are protected.

In the plea the petitioner stated that the T-Huts settlement in the area, which was stated by the authorities to vacate. It has been in existence for almost two decades and compromise of 32 jhuggis or households.

In the plea it was alleged that the bulldozers have been parked around the camp and a DDA official has orally asked them to vacate the area and it is noted that till date no proper notice have been sent to them nor has DDA conducted any survey of the area.

Furthermore, the DDA did not provide any alternate arrangement for their rehabilitation which resulted in extreme distress among the residents.

Moreover, it was admitted by the petitioner that the land in question belongs to DDA and they may seek that status-quo to be maintained at the site. It was urged that the residents should not be physically dispose or evicted from the demolition site until the survey is conducted and rehabilitation is provided to the residents as per the DUSIB policy of 2015.

As per the JJ Rehabilitation and Relocation Policy 2015 and the Delhi Urban Shelter Improvement Board. The residents who can establish their residence prior to 01.01.2015 are eligible for rehabilitation under the JJ Rehabilitation and Relocation Policy 2015.

It is observed that in the case Ajay Maken v. Union of India, Reliance is placed on the Supreme Court decision and the High Court decision in the case Sudama Singh & Ors. v. Government of Delhi & Anr, it was held in the case that that removal of jhuggis without ensuring relocation would amount of gross violation of Fundamental Rights under Article 21 of the Constitution. Further, it was held that the agencies conducting the demolitions ought to conduct survey before undertaking any demolition.

It is submitted that these observations would apply across the board, in the entire NCT of Delhi.

Advocates Vrinda Bhandari, Shiyaz Razaq, Kaoliangpou Kamei, Jepi Y Chisho and Paul Kumar Kalai, represented the petitioner.

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TELANGANA HIGH COURT: PLACE OF RESIDENCE OF THE ARBITRATOR WOULD NOT BE THE SEAT OF ARBITRATION

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The High Court of Telangana in the case M/s S. Square Infra v. Garneni Chalapathi Rao observed and held that the place of residence of the arbitrator would not determine the seat of arbitration.

The Single bench comprising of Justice P. Sree Sudha observed and held that merely because an arbitrator residing in Hyderabad has been appointed, it does not mean that only the Courts at Hyderabad would have the jurisdiction to decide all the matters arising out of arbitration agreement.

Facts of the Case:

In the present case, after the dispute arouse between the parties, the respondent sent a letter to the petitioner for nomination an arbitrator who is residing in Hyderabad. To its said notice, petitioner replied and declined the appointment of the arbitrator for the reason that there was no dispute which required the appointment of an arbitrator.

A suit was filled by the respondent before the VII Additional District Judge Sangareddy, seeking for relief of permanent injunction. An application was filled by the petitioner under Section 8 of the Arbitration & Conciliation Act and the parties referred to the arbitration.

An application was filled by the respondent under section 9 of the Arbitration & Conciliation Act before the Principal District Judge, Sangareddy, Subsequently, an application was filled by the petitioner for transferring the application from the Court at Sangareddy to Court at Hyderabad.

Contentions made by Parties:

On the following grounds, the petitioner sought the transfer of application.

An arbitrator residing in Hyderabad was nominated to respondent. However, only the courts in Hyderabad would have the jurisdiction to decide all the matters arising out of the arbitration.

It was stated that the nomination of an arbitrator residing in Hyderabad amounted to designating Hyderabad as the Seat of Arbitration.

On the following grounds, the respondent countered the submissions of the petitioner:

An application was filled by the petitioner under Section 8 of the A&C Act before the Court at Sangareddy. However, in terms of Section 42 of the A&C Act, only the court at Sangareddy would have the jurisdiction to decide all the matters arising out of arbitration.

Court Analysis:

The Court held that the seat of arbitration would not be decide by the place of residence of the arbitrator.

The argument of the petitioner was rejected by the court that since the respondent had initially nominated an arbitrator residing in Hyderabad, the Hyderabad Court would have the jurisdiction.

The court stated that merely because a party has nominated an arbitrator who resides in Hyderabad, the same would not designate Hyderabad as the Seat of arbitration in absence of any designation of the seat under the arbitration agreement.

It was further stated by the court that the application filled by the petitioner filled under Section 8 application before the Court at Sangareddy consequent to which the parties were referred to arbitration. Therefore, the Court would have the jurisdiction, in terms of Section 42 of the A&C Act.

The Transfer petition was dismissed by the Court.

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DELHI HIGH COURT REMANDS IN THE MATTER BACK TO ASSESSING OFFICER AFTER SETTING ASIDE: JUST 3 DAYS’ TIME GRANTED TO RESPOND TO THE INCOME TAX NOTICE

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plea in Delhi High Court seeking repatriation of 56 pregnant nurses

The Delhi High Court in the case Shubham Thakral Vs ITO, the Delhi bench comprising of Justice Manmohan and Justice Manmeet Pritam Singh Arora observed and remanded the matter back to the assessing officer as just 3 days’ time was granted to respond to the income tax notice.

In the present case, the petitioner/assessee assailed the notice under Section 148A (b) of the Income Tax Act, 1961 and the order passed under Section 148A (d) for the Assessment Year 2018–19.

It was contended by the assessee that only three days’ time was granted to the assessee to respond, as against the mandatory statutory period of at least seven days. However, despite of the fact that the annexure attached to the notice gave the petitioner eight days to respond, the e-filing submission portal was closed earlier, in violation of Section 148A (b) of the Income Tax Act.

Furthermore, the petitioner relied on the decision of Delhi High Court, in the case of Shri Sai Co-operative Thrift and Credit Society Ltd versus ITO, the Delhi High Court in the case held that under Section 148A (b), a minimum time of seven days has to be granted to the assessee to file its reply to the show cause notice.

No objections were raised by the department/respondent to the matter being returned to the Assessing Officer for a fresh decision in accordance with the law. Accordingly, the court set aside the order passed under Section 148A (d) for the Assessment Year 2018-19. The Assessing officer was directed by the court to pass a fresh reasoned order in accordance with the law after considering the reply of the petitioner, which was directed to be filed within a week.

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ALLAHABAD HIGH COURT: ADVOCATES SHOULDN’T ADVISE CLIENTS TO REAGITATE MATTERS IF THERE IS NO ERROR APPARENT ON FACE OF RECORD

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The Allahabad High Court in the case Malhan and 17 Others Vs. State Of U.P. And Another observed and stated that an advocate should be given such a piece of advice when there is no error apparent on the face of the record nor was there any reason why the matter be re-agitated it was finally decided.

The bench comprising of Justice Dr. Kaushal Jayendra Thaker and Justice Vivek Varma observed while dealing with the civil review application wherein the bench observed the concerned advised his client to make a chance by filling the instant review application after a period of six year.

In the present case, a civil review petition was filled along with the application under section 5 of the Limitation Act, 1963., the application was filled for seeking condonation of delay in filling the application, the application was filled with a delay of six years i.e., 1900 days.

It was stated by the applicant that the review application could not be filled due to the blockage of public transportation on account of the COVID-19 guidelines.

Moreover, the court observed that the appeals were disposed of by the Apex Court in the year 2016 and only in 2020-2021, the pandemic struck India and furthermore, it cannot be said that due to the COVID guidelines the public transportation was blocked and however, the applicant could not come to Allahabad Court to file review.

Further, it was stated that the court asked the counsel for the review applicants to explain the delay in filling the review application, to which the council gave a strange reply that the counsel had advised the clients that they must take a chance by filling this review application after a period of six years.

Following this, the Court observed:

The court noted that an advocate should not give such an advice when there is no error apparent on the face of record nor was there any other reason that when the matter was finally decided, why the matter be re-agitated.

It was stated that the court has no reason to condone the delay of six years as the same was not explained as to why this review application is filed after such an inordinate delay.

The Court opined that the lapse in approaching the court within the time is understandable but a total inaction for long period of delay without any explanation whatsoever and that too in absence of showing any sincere attempt on the part of suiter, this would add to his negligence and the relevant factor going against him.

The court observed that careless and reckless is shown by the review applicant in approaching the court and due to the condemnation of delay in the application with a token cost of Rs.10,000/, the court dismissed the application.

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SUPREME COURT CRITICISES HIGH COURT: POSTING ANTICIPATORY BAIL PLEA AFTER TWO MONTHS CAN’T BE APPRECIATED

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The Supreme Court in the case Sanjay versus The State (NCT of Delhi) & ANR observed and stated that in the case where personal liberty is involved, the court is expected to pass orders at the earliest while taking into account the merits of the matter in one way or other. Further, the top court observed that posting of an application for anticipatory bail after a couple of months cannot be appreciated by the court.

The bench comprising of Justice C. T. Ravikumar and the Justice Sudhanshu Dhulia was hearing a June 2 SLP against the Delhi High Court in a petition filed under section 420, 467, 468, 471, 120-B, 34 of the Indian Penal Code, 1860 for seeking anticipatory bail in a 2022 FIR, a notice is issued. It was stated that the learned APP for the state is present and accepts the notice and seeks time to file status report. The High Court in the impugned order stated that Let the status report be filed by the state prior to the next date with an advance copy to the learned counsel for the petitioner. The matter is to be list on 31.08.2022.

It was noted by the bench comprising of Justice Ravikumar and the Justice Dhulia that in the captioned Special Leave Petition, the grievance of the petitioner is that the application for anticipatory bail moved by the petitioner, being Crl. M.A. No. 11480 of 2022 in Bail Application No. 1751 of 2022 without granting any interim protection, was posted to 31.08.2022. on 24.05.2022, the bail application was moved on.

However, the bench asserted that the bench is of the considered view that in a matter involving personal liberty, the Court is expected to to pass orders at the earliest while taking into account the merits of the matter in one way or other.

It was declared by the bench that at any rate posting an application for anticipatory bail after a couple of months cannot be appreciated by the court.

Further, the bench requested to the High Court to dispose off the application for anticipatory bail on its own merits and in accordance with law expeditiously, preferably within a period of three weeks after reopening of the Court. Adding to it, the bench stated that if the main application could not be disposed off, for any reason, within the stipulated time, relief sought for in the interlocutory and on and on its own merits, the application shall be considered.

While disposing of the SLP, the bench directed in its order that we grant interim protection from arrest to the petitioner herein, Till such time.

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