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Executive acting in breach of judgements would be invitation to anarchy: Supreme Court

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In a strong reprimand to Centre, the Supreme Court just recently on 7 December 2020 has in a latest, learned, laudable and landmark judgment titled KK Agarwal vs Sanjiv Nandan Sahai [CONMT.PET.(C) No. 429/2020 in C.A. No. 14697/2015] has led from the front in pulling up the Central Government for not appointing law member in Central Electricity Regulatory Commission [CERC] which is certainly most baffling! Why is law member not being appointed? The Supreme Court Bench headed by Justice Sanjay Kishan Kaul minced no words in remarking that executive acting in breach of judgments would be invitation to anarchy. Centre must now take this most seriously and do the needful in this direction as called upon by the top court!

To start with, the ball is set rolling in the opening para of this notable judgment authored by a three Judge Bench of the Apex Court headed by Justice Sanjay Kishan Kaul and also included Justice Dinesh Maheshwari and Justice Hrishikesh Roy wherein it is put forth that, “Application for exemption from filing duly affirmed affidavit is allowed.”

Needless to say, the Bench then minces no words to put across its strong views that, “We have shown considerable restraint in this matter. Our restraint seems to be misunderstood!”

While elaborating further, it is then brought out in the next para that, “The Civil Appeal in question dealt with the matter of appointment under the Electricity Regulatory Commission Act, 1998. Vide judgment dated 12th April, 2018, we rejected the challenge to the extent that a prayer had made that the Chairman of the Commission must be a man of law but simultaneously opined that “thus, if the Chairman of the Commission is not a man of law, there should, at least, be a member who is drawn from the legal field.”

As a corollary, the Bench then observes in the next para that, “In the conspectus of the aforesaid, we observed in paras 107 and 110 as under:

“107. We are thus, of the view that it is mandatory to have a person of law, as a member of the State Commission. When we say so, it does not imply that any person from the field of law can be picked up. It has to be a person, who is, or has been holding a judicial office or is a person possessing professional qualifications with substantial experience in the practice of law, who has the requisite qualifications to have been appointed as a Judge of the High Court or a District Judge.

108. XXX

109. XXX

110. We are, thus, of the unequivocal view that for all adjudicatory functions, the Bench must necessarily have at least one member, who is or has been holding a judicial office or is a person possessing professional qualifications with substantial experience in the practice of law and who has the requisite qualifications to have been appointed as a judge of the High Court or a District Judge.”

In view of the aforesaid, the Bench then observes in the next para that, “In view of the aforesaid position, in the concluding paragraph 114, we issued certain directions as under:

“114. In view of our observations above, we conclude as under:

i. Section 84(2) of the said Act is only an enabling provision to appoint a High Court Judge as a Chairperson of the State Commission of the said Act and it is not mandatory to do so.

ii. It is mandatory that there should be a person of law as a Member of the Commission, which requires a person, who is, or has been holding a judicial office or is a person possessing professional qualifications with substantial experience in the practice of law, who has the requisite qualifications to have been appointed as a Judge of the High Court or a District Judge.

iii. That in any adjudicatory function of the State Commission, it is mandatory for a member having the aforesaid legal expertise to be a member of the Bench.

iv. The challenge to the appointment of the Chairman and Member of the Tamil Nadu State Commission is rejected as also the suo moto proceedings carried out by the Commission.

v. Our judgment will apply prospectively and would not affect the orders already passed by the Commission from time to time.

vi. In case there is no member from law as a member of the Commission as required aforesaid in para 2 of our conclusion, the next vacancy arising in every State Commission shall be filled in by a Member of law in terms of clause (ii) above.”

For the sake of clarity, the Bench then clarifies that, “We took care to protect the past orders by making our judgment apply prospectively. In sub-para (vi) we clearly directed that if there was no member from law as a member of the Commission, the next vacancy arising in every State Commission shall be filled by a member of law in terms of Clause (ii) above.”

To put things in perspective, the Bench then seeks to make it clear that, “The Contempt proceedings arose because according to the petitioner, the directions of this Court were sought to be breached on account of appointments made to the Central Commission on 21.01.2019 and thereafter on 07.04.2020 without appointing a member from law. The Contempt Petition was listed before us on 27.07.2020, when we expressed a view that prima facie we were satisfied that it appears to be a case of willful disobedience of the judgment of this Court and directed issuance of notice. Thereafter, the matter has been heard from time to time and on 28.08.2020, we unequivocally expressed the view that the appointment of any member after our judgment could not take place without first appointing a member from law. We recorded the submission of the learned Solicitor General that a third time process for appointing of a person of law (the earlier two processes not having found any suitable person), is expected to be concluded in the month of September, 2020. We, however, noticed that the appointment contrary to our judgment cannot be permitted to prevail and, thus, the person so appointment could not function without first appointing a person of law. The learned Solicitor General thus, stated that one or more person who is so appointed would be asked to proceed on leave till such time as the person from law is appointed. We took care to clarify that our order was not a reflection on the merit of the persons so appointed but it was necessary to ensure that the true intent and spirit of order passed by this Court was adhered to.”

To say the least, the Bench then states that, “Since the Government seemed to be in a hurry to see that the functioning of the commission is not affected, we gave liberty in terms of the last direction, making it clear that if a person of law was so appointed within this period of time, the persons who would go on leave would be permitted to rejoin.”

As it turned out, the Bench then makes it a point to bring out that, “All that anxiety was only before the Court and there appears to be little intent in the same as on 25.09.2020 and thereafter on 26.10.2020, we were still awaiting the appointment of the member from law. On 25.09.2020, the process to be undertaken was only set out as submitted by learned ASG, who was unable to give the exact time frame for appointment while emphasizing that the working of the Commission should not come to a standstill. We did not accept the plea while recording as under:

“We are, however, now persuaded. In view of the submission that is emphasised, there are many Tribunals which are non-functional or hardly functional because vacancies have been left un-filled. This is the larger issue which the Government must examine as when it creates Tribunals, vacancies must be filled in time anticipating even the future vacancies. This has not happened. There are Tribunals even more important than the Tribunal in question in terms of their remits, where such a situation prevails. We thus see no reason why a different scenario has to prevail for the Tribunal in question, specially because the process as envisaged under our judgment has not been followed.

We are thus not inclined to vary the arrangement made vide order dated 28th August, 2020 which shall continue till such time as the person of Law is so appointed.”

Going ahead, the Bench then states that, “On 26.10.2020, we had an applicant before us whose proceedings had been concluded and informed us that about 174 judgments were lying reserved. We called upon the Commission to place on record an affidavit setting out the accuracy of those facts, while once again recording the submission of learned Solicitor General that four weeks’ more time is expected to complete the process and we observed:

“The great anxiety expressed on the last date seems to have vanished!””

Furthermore, the Bench then also hastens to add that, “The commission has placed an affidavit before us showing the summary of petitions where orders have been reserved by the Commission as annexure A-1 which number 177. The month wise breakup is as under:

Frankly speaking, the Bench then also brings out that, “We did put to learned senior counsel for the Commission that we are unable to appreciate orders pending from February 2020 albeit a small number of these orders ought to have been pronounced much earlier. Most of the orders are from the period May to August, 2020 till this Court’s interdict.”

Without mincing any words, the Bench then also makes it a point to put across that, “A valiant endeavour has been made by Mr. Maninder Singh, learned senior counsel and Mr. Nikhil Nayyar, learned senior counsel to persuade us to lift the interdict to the extent of permitting the judgments to be pronounced as the consumers are affected. Unfortunately, the Government is showing no anxiety about the interests of the consumers or the Commission as it is taking its own sweet time. We would once again like to draw attention to what we had observed on 25.09.2020 and extracted aforesaid. We are, thus, not persuaded to lift the interdict despite the best persuasion of learned senior counsels.”

Most significantly, the Bench then minces no words to state in simple and straight language that, “We have to express our anguish with the manner in which the Government sought to act, contrary to a judgment of this Court. It is the legislative function to pass the Acts and the administrative function to implement the provision of that Act. It is left to the judiciary to interpret the law. The law was interpreted by our judgment. The Executive cannot be expected to act nor permitted to act in breach of the judgment of this Court. This would be invitation to anarchy! The mutual respect of the three pillars of democracy requires each of them to respect the role and functioning of the other.”

Not stopping here, the bench then further goes on to add in this para that, “In the present case, we have already expressed our prima facie view of a willful disobedience of the orders of this Court. The passage of time also doesn’t seem to have awoken the Government to the problem at hand and almost four months have passed since then. We are unable to come to the aid of the consumers because the Government does not seem to be interested in coming to the aid of the consumers or making the Commission functional, which is not an unusual scenario seeing the functioning of the other Tribunals and Commissions, on account of lack of appointments to deal with the matters.”

Finally, the Bench then goes on to hold that, “Having expressed our anguish, we now specifically posed a question to learned Additional Solicitor General as to when should we keep the matter, so that the Government would have completed the task by then. Learned Additional Solicitor General requests the matter be kept on 20.01.2021, as according to her the matter is pending consideration before the ACC. List on 20.01.2021.”

To sum it up, the three Judge Bench of the Apex Court comprising of Justice Sanjay Kishan Kaul, Justice Dinesh Maheshwari and Justice Hrishikesh Roy have minced no words to voice its seething anger at Centre for having not appointed law member in CERC. The Bench also laments that the Government was showing no anxiety about the interests of the consumers or the Commission. Centre must at least now wake up and adhere to what the Apex Court has held so explicitly, elegantly, eloquently and effectively in this leading case! There can be no denying or disputing it!

Month Total

1 February 2020 5

2 March 2020 4

3 April 2020 0

4 May 2020 23

5 June 2020 41

6 July 2020 47

7 August 2020 57

Total 177

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Legally Speaking

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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