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State needs to fix responsibility: Bombay High Court

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Bombay High Court

It is really great, good and genuine that the Aurangabad Bench of Bombay High Court in Arun and Shailendra vs The State of Maharashtra and 4 others in Criminal Writ Petition No. 574 of 2013 delivered on December 1, 2020 has directed the State Government of Maharashtra to pay Rs. 50,000 each towards compensation to two men who were illegally detained in Beed District of Aurangabad Division for six days in 2013. It also very rightly directed that in such cases the State needs to obtain explanation from the erring authority and fix some kind of responsibility. The Division Bench of Justice TV Nalawade and Justice MG Sewlikar of the Aurangabad Bench were hearing a criminal writ petition filed by Arun Tagad and Shailendra Tagad seeking compensation of Rs 5 lakh each for the said illegal detention.

To start with, Justice TV Nalawade who authored this latest, landmark, learned and laudable judgment for himself and Justice MG Sewlikar sets the ball rolling by first and foremost pointing out the purpose of filing petition in para 2 stating that, “The petition is filed for giving direction to Respondents to pay compensation of Rs.5,00,000/- to each of Petitioners on the ground that the Petitioners were illegally arrested and detained in custody at the instance of police.”

To put things in perspective, the Bench then states in para 3 that, “The submissions made and record show that on 28th January, 2013, FIR was given to Beed Rural Police Station against the Petitioners by one lady and the crime for the offences punishable under Sections 323, 324, 504 and 506 read with 34 of the Indian Penal Code was registered. On 30th January, 2013, both the Petitioners were arrested by police of Rural Police Station, Beed and the Petitioners were produced before the Judicial Magistrate First Class, Beed on the same day. The Judicial Magistrate First Class granted bail to both the Petitioners and they were released when they furnished personal bond and surety bond. It is the contention of Petitioners that when they came out of the campus of Court, same police arrested them immediately and they were taken before the Executive Magistrate, Beed.”

While elaborating further, the Bench then states in para 4 that, “On 30th January, 2013, both the Petitioners were produced before the Executive Magistrate, Beed and the Executive Magistrate made order against the Petitioners and directed them to give interim bond with two solvent sureties of Rs.25,000/- each. On 30th January, 2013, the Petitioners moved an application before the Executive Magistrate and requested the Magistrate to permit them to give cash security in place of surety bond and they submitted that they had applied for getting solvency certificate, but such certificate generally is not issued immediately. The Executive Magistrate did not allow this application and adjourned the matter to next date.”

While elaborating on the contention of the petitioner, the Bench then states in para 5 that, “It is the contention of Petitioners that there were malafides in the action taken by police and the Executive Magistrate had also did not pass necessary orders and due to that they were illegally detained in jail from 30th January, 2013 for about six days. It is the contention of Petitioners that they are not habitual offenders. It is their contention that Petitioner No.2 was surveying in the military at the relevant time and Petitioner No.1 was a respected person and resident of same locality and so detention was not necessarily in the chapter case. It is contended that he arrest and detention were illegal and there is violation of the fundamental rights of the Petitioners. The following specific reliefs are claimed in the present matter:

“B) It may kindly be hold and declared that, the police have no power or authority to arrest the petitioners U/sec. 107 of Cr.P.C. after getting bail.

C) It may kindly be declared and hold that, order dated 30.1.2013 passed by Executive Magistrate is illegal and violates the fundamental rights of the petitioners.

D) It may kindly be declared and hold that, the respondent No.4 illegally detained the petitioners. E) It may kindly be declared and hold that, the respondents violated the fundamental rights of the petitioners therefore the petitioners are entitled to get compensation from the state.

F) It may kindly be declared and hold that, the respondents no. 4 and 5 violates the fundamental rights of the petitioners therefore state is liable to pay compensation.

G) It may kindly be declared and hold that, Petitioners are entitled compensation of Rs.5,00,000/- each from the state.”

While elaborating on the contents of the FIR, the Bench then enunciates in para 6 that, “The submissions made and copy of FIR dated 28th January, 2013 show that incident had allegedly taken place on 22nd January, 2013 at about 08:30 pm. A lady aged about 35 years had given FIR against the present two Petitioners and one Mahendra Tagad, who is a brother of Petitioner No.2. She had made allegations that these three accused had picked up quarrel with her family on the ground that her family had not allowed them to use the bullocks and bullock cart for fetching water. The lady had alleged that during quarrel, Petitioner Shailendra and other Accused Mahendra had assaulted her with fist blows and kick blows and Petitioner No.1 Arun had assaulted her with stick. It is her contention in the FIR that she sustained bleeding injury in the incident and she was somehow saved by her family members and neighbours. It is her contention that her husband was not at home at the relevant time. The contents of FIR show that both the Petitioners were known to her as they hail from her village.”

Needless to say, after going through the contents of FIR, the Bench then holds in para 7 that, “The contents of FIR and the submissions made in the present proceeding do not show that there was previous enmity of the Petitioners with the informant. The FIR was also not given immediately. From the contents of FIR and the circumstances, it is not possible to infer that even family of the informant had a feeling that there was possibility of commission of similar offence by the Petitioners and other accused. The crime was registered for the offences punishable under Sections 324, 323, 504, 506 read with 34 of the Indian Penal Code and this crime is bailable. It is not disputed that the Petitioners were arrested on 30th January, 2013 and on the same day Judicial Magistrate First Class released them on bail.”

Going ahead, the Bench then states in para 8 that, “In the reply filed by Respondent, police head constable, who was investigating the aforesaid crime, it is contended that the Deputy Superintendent of Police, Beed Division had directed this police station to take preventive measures against the Petitioners. It is contended that the direction was given on wireless. Photocopy of wireless message is also produced. It is the contention of police head constable Bansi Jaibhaye that when the Petitioners were released on bail by Judicial Magistrate First Class, he asked the Petitioners to appear before the Executive Magistrate on the same day and he did not arrest them. It is contended that on that day, report was submitted to Executive Magistrate and the Executive Magistrate directed the Petitioners to give bond of Rs.25,000/- with two solvent sureties. It is contended that as the Petitioners failed to comply this order, the matter was adjourned to 5th February, 2013 by the Executive Magistrate.”

As a corollary, the Bench then observes in para 9 that, “The aforesaid circumstances show that even when bailable offence was registered, both the Petitioners were arrested and they were produced before the Magistrate when they could have been released on bail in the police station. The message given by the Sub-Divisional Police Officer shows that he had directed to take preventive measure and due to that the police head constable gave report to Executive Magistrate and it can be said that the report was given after release of Petitioners on bail by the Judicial Magistrate First Class. The submissions made and the record show that the police station requested the Executive Magistrate to start chapter proceeding under Section 107 of the Code of Criminal Procedure and obtain interim bond from them under Section 116(3) of the Code of Criminal Procedure.”

Be it noted, the Bench then states in para 10 that, “On the report given by the police for starting chapter proceeding, the Executive Magistrate made order of following nature in Marathi: “The opponents were produced by police head constable Jaibhaye. The opponents were directed to give personal bond and bond of two sureties of Rs.25,000/- by each of them. If the opponents fail to furnish bond, they are to be taken to jail and they are to be kept in jail till next date. The next date is fixed as 5th February, 2013.”

While elaborating further, the Bench then points out in para 11 that, “There is a copy of application, which was given by Petitioners on 30th January, 2013 and it can be said that this application was moved after passing of aforesaid order by Executive Magistrate. This application shows that the Petitioners offered to give cash security of aforesaid amount and it was also submitted that two sureties like Umakant Tagad, resident of Kumshi, District Beed and Harishchandra Raosaheb Nikam were present to execute the bond as surety. It was also written in the application that for getting solvency certificate in respect of these sureties, applications were already moved, but it may take some time. On this application, the Executive Magistrate made order that the amount was to be accepted on 1st February, 2013. There is a copy of another application given for the Petitioners by their Advocate and it is dated 31st January, 2013. This application shows that it was again requested to Executive Magistrate to give time for getting solvency certificate and atleast 2-3 days time was required for that. On this application, the Executive Magistrate made order, which is as follows:

“Time granted. Release on today.”

However, it is the contention of the Petitioners that they were detained in custody for about six days i.e. till 5th February, 2013.”

It is worth noting that it is then put forth in para 12 that, “As the Petitioners have contended that both the arrest and the detention was illegal, this Court is discussing the provisions of the Criminal Procedure Code. It is already observed that the offence for which crime was registered is bailable and so they could have been released on bail in the police station itself. The provision of Section 107 of the Code of Criminal Procedure falls in Chapter VIII. The purpose of Chapter VIII is given in the heading of the Chapter and it shows that the provisions are made for security for keeping the peace and for good behaviuor. The scheme of this Chapter shows that in different circumstances, chapter cases can be started under different sections like Section 107 to 110. The power given under Section 106 of the Code of Criminal Procedure is of different nature and that need not be discussed in the present matter. In the present matter, there was a proposal to start chapter proceeding under Section 107 of the Code of Criminal Procedure and so this provision needs to be considered. The provision runs as under:

“107. Security for keeping the peace in other cases.– (1) When an Executive Magistrate receives information that any person is likely to commit a breach of the peace or disturb the public tranquillity or to do any wrongful act that may probably occasion a breach of the peace or disturb the public tranquillity and is of opinion that there is sufficient ground for proceeding, he may, in the manner hereinafter provided, require such person to show cause why he should not be ordered to execute a bond with or without sureties for keeping the peace for such period, not exceeding one year, as the Magistrate thinks fit.””

As we see, what Section 107 basically postulates is then stated in para 13 that, “The provision of Section 107(1) of the Code of Criminal Procedure shows that there are conditions for starting the proceeding under this section and the conditions are as under:

(i) That there was information against the opponent that he was likely to commit breach of peace or he was likely to disturb the public tranquillity or the opponent was likely to do any wrongful act, which may occasion breach of peace or disturbance of public tranquillity;

(ii) There should be material before the Executive Magistrate for forming opinion that there is aforesaid probability;

(iii) There should be subjective satisfaction of Executive Magistrate that such ground exists and that opinion needs to be formed on the basis of material;

(iv) After forming such opinion, the Executive Magistrate needs to issue show cause notice against the opponent and then it can be said that the Executive Magistrate has taken cognizance of the matter and the chapter proceeding starts.”

Simply put, the Bench then notes in para 14 that, “In the present matter, the record shows that there was only police report of aforesaid police head constable before the Executive Magistrate and that was in respect of registration of aforesaid crime. The report does not show that any document including copy of aforesaid FIR was supplied to the Executive Magistrate. On this report itself, the Executive Magistrate made the order and directed the Petitioners to execute interim bond under Section 116(3) of the Code of Criminal Procedure of aforesaid nature. The record produced and the reply of the police head constable does not show that before passing such order, any order of show cause as required under Section 111 of the Code of Criminal Procedure was made. Section 111 of the Code of Criminal Procedure runs as under:

“111. Order to be made.– When a Magistrate acting under section 107, section 108, section 109 or section 110, deems it necessary to require any person to show cause under such section, he shall make an order in writing, setting forth the substance of the information received, the amount of the bond to be executed, the term for which it is to be in force, and the number, character and class of sureties (if any) required.”

What next follows is then stated in para 15 that, “It is contended by the police head constable in the reply that he had only directed the Petitioners to appear before the Executive Magistrate when they were released on bail by the Judicial Magistrate First Class. This contention appears to be incorrect and false. The aforesaid order of interim bond made by Executive Magistrate shows that the Petitioners were brought before the Executive Magistrate by police head constable Jaibhaye. This circumstance supports the contention of the Petitioners that immediately after their release on bail by the Judicial Magistrate First Class, they were taken in custody by police and they were produced before the Executive Magistrate. Though there is such clear probability, there is no record to show their formal arrest under any provision of law after they were released by the Judicial Magistrate First Class in aforesaid crime.”

To be sure, the Bench then states in para 16 that, “Even if the contention of police head constable Jaibhaye is accepted as it is that he had directed the Petitioners to appear before the Executive Magistrate, he could not have done it in view of the provisions of Chapter VIII. Only after passing of some order under Section 107 read with Section 111 of the Code of Criminal Procedure, the opponents can be directed to appear before the Executive Magistrate if they are not arrested under any provision of law.”

Of course, the Bench then envisages in para 18 that, “The provision of Section 113 and relevant portion of provision of Section 116 of the Code of Criminal Procedure quoted above shows that when chapter proceeding is started under Section 107 of the Code of Criminal Procedure, the Executive Magistrate is not expected to issue warrant. He can issue only summons or notice and send show cause notice under Section 111 of the Code of Criminal Procedure to opponents. The grounds given in Section 107 of the Code of Criminal Procedure are not that serious and they do not show that there is urgency and they need to be arrested first. Ordinarily, for proposing chapter case under Section 108, 109 and 110 of the Code of Criminal Procedure, police use provision of Section 151 of the Code of Criminal Procedure and they make arrest and then they produce the accused alongwith proposal of chapter case before the Executive Magistrate. The provision of Section 151 of the Code of Criminal Procedure enables police to arrest the opponent as the police form opinion that there is a possibility of commission of cognizable offence by the opponent. There is no such possibility when chapter case is to be started under Section 107 of the Code of Criminal Procedure. Thus, arrest before issuing show cause notice under Section 111 of the Code of Criminal Procedure when chapter proceeding is to be filed under Section 107 of the Code of Criminal Procedure is not permissible and it is illegal. Similarly, in view of the provision of Section 116(3) of the Code of Criminal Procedure, interim bond cannot be obtained from the opponent when chapter proceeding is started against him under Section 107 of the Code of Criminal Procedure.”

Of course, the nutshell of the above discussion then makes the Bench observe in para 19 that, “The aforesaid discussion shows that the order of Executive Magistrate asking the present Petitioners to execute interim bond of aforesaid nature is illegal. The bond was involving onerous condition, two sureties having solvency certificate of Rs.25,000/- each for each opponent. These circumstances show that there were malafides and intention of the police was to see that the Petitioners are arrested and they are kept behind bars for few days. The record and circumstances show that the Executive Magistrate acted as per such desire of police and he did not apply his mind. The Executive Magistrate ought to have gone through the aforesaid provisions which show that he had no such jurisdiction.”

It is also worth noting that the Bench then elucidates in para 20 that, “In Criminal Writ Petition No.955 of 2019, (Kisan Rupa Pawar and another Vs. The State of Maharashtra and others) decided at this Bench on 5th November, 2019, this Court has considered the law developed on illegal arrest and illegal detention. This Court has laid down, on the basis of observations made by the Apex Court that in such cases, the victim is entitled to get compensation. The observations are at para 13 and they are as under:

13) In the landmark case of D.K. Basu Vs. State of W.B. reported as AIR 1997 SC 610, the Supreme Court has laid down the law in respect of the illegal detention and reliefs which can be granted in such cases. In other case, of Smt. Nilabati Behera alias Lalita Behera Vs. State of Orissa and others reported as AIR 1993 SC 1960, the Apex Court has laid down that such actions of police are in blatant violation of human rights. The Apex Court has referred the provisions of International Covenant on Civil and Political Rights, 1966 to which India is a party. The Apex Court has laid down that Articles 21 and 226 of Constitution of India make it not only possible but necessary for the Court to grant compensation in such cases. Even mistake cannot be excused in such cases. This Court is not expected to decided as to whether there was the malice. So, this Court holds that compensation needs to be given to the petitioners.””

While continuing in a similar vein, the Bench then observes in para 21 that, “Similar observations are there in Criminal Writ Petition No.1107 of 2018, (Imtiyajbi w/o Akbar Shah Vs. The State of Maharashtra and others) at paras 9 and 10 and they are as under:

“9) Learned counsel for the petitioner placed reliance on the observations made by the Apex Court in following three cases.

(1) Rudul Sah v. State of Bihar [AIR 1983 SC 1086];

(2) Arvinder Singh Bagga v. State of U.P. [AIR 1995 SC 117]; and,

(3) S.Nambi Narayanan v. Siby Mathews [2018 AIR SC 5112].

10) In all the three cases the Apex Court had considered the provision of Article 21 of the Constitution of India and had held that in such cases person who is illegally detained is entitled to get compensation from the State. In the case reported as Ram Dass Ram v. State of Bihar, [AIR 1987 SC 1333] the Supreme Court held that such detention would be unjustified. It can be said that the authority ought to have acted confidently and there was nothing in the operative order which could have confused the authority. In such cases the State needs to be made to pay compensation first and then the State can be allowed to recover the amount from the officer who has committed error or who was found negligent in taking urgent steps for release of the prisoner.””

Coming to the present case, the Bench then finally and far most importantly brings out in para 22 that, “In the present matter, only because there is a copy of order dated 31st January, 2013 showing that on that day Executive Magistrate had given direction to release the opponents and time was give to them as prayed, this Court holds that the compensation cannot be on higher side. There is a clear possibility that to the Executive Magistrate there was no proper training. The powers available, which are in Chapter VIII of the Code of Criminal Procedure are invested either in police officer of higher rank or some revenue officer and as they have no training, when superior police officer issue some instructions like done in the present matter and orders of the aforesaid nature are passed. In any case, it needs to be made known to Executive Magistrate that he has passed illegal order and he had no jurisdiction to pass such order. Only because he was expected to discharge the duty given under Chapter VIII of the Code of Criminal Procedure, he may not be directed to pay compensation. However, the State needs to obtain the explanation and fix some kind of responsibility in such cases. It is serious mistake committed by the Executive Magistrate. In the result, the following order is passed:

O R D E R

I. The petition is allowed.

II. The Respondents shall pay Rs.50,000/- (Rupees Fifty Thousand only) to each Petitioner as compensation for illegal detention.

III. Initially, the State Government has to pay this amount and it is to be done within 45 days from today, failing to which the amount will carry interest at the rate of 8% per annum.

IV. It is open to the State to fasten responsibility on concerned police officer and the then Executive Magistrate and recover amount.

V. Rule is made absolute in those terms.”

In conclusion, the essence of this commendable, cogent, courageous and carefully considered judgment is that the police act mala fidely and with intent to keep the petitioners behind bars for a long time. The Executive Magistrate ought to have applied his mind and act as per the provisions of law which showed that he had no jurisdiction. The Bench then rightly goes on to direct State to pay Rs 50,000 each to the petitioners within 45 days as already stated above. It deserves emulation in similar such cases of police high handedness! There can be just no denying it!

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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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