SUPREME COURT’S LATEST VERDICT ON THE COAL SCAM - The Daily Guardian
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SUPREME COURT’S LATEST VERDICT ON THE COAL SCAM

Tarun Nangia

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Callous, careless, and casual approach”, are the observations of the apex court against executive while pronouncing a historic judgment on one of the cases involving coal blocks allocation. The Three judges Bench of the Supreme court headed by Chief Justice of India (CJI) Justice NV Ramana imposed a Rs. 1 lakh fine on the central government for unlawfully levying penalties on BLA Industries Private Limited after wrongly including the company in the list of illegal allottees. The Bench, which also included Justices Krishna Murari and Hima Kohli, who authored the Judgment, termed the executive’s error as ‘callous, careless and casual.’ The case was argued by Adv. Abhimanyu Bhandari for BLA Industries.

The executive’s wrong decision led to the cancellation of a coal mining lease that was lawfully granted to BLA Industries. The Apex court observed that BLA Industries had lawfully followed the correct procedures by approaching the state government first seeking to obtain a mining lease. BLA Industries, the court said, was granted by the Mines and Mineral (Development and Regulation) Act, 1957 (MMDR Act). The central government had wrongly included BLA Industries in the list of 46 coal blocks submitted before the top court. Taking a dim view of the executive’s error, the Supreme Court said, “As a result of this callous, careless and casual approach of the respondent no. 1 – UOI, the present petitioner had to suffer loss and ignominy. Therefore, litigation costs quantified at ₹1 lakh shall be paid by respondent No.1 – UOI to the petitioner within four weeks.” The inclusion of BLA Industries in the list of 46 coal blocks resulted in the cancellation of the company’s mining lease by the Supreme Court in 2014.

The government had filed a contempt petition against BLA Industries for the non-payment of the levy. The Supreme Court dismissed the contempt petition calling it ‘meritless.’

Now imagine the pain of the company suffering losses not only financially but also the irreparable image dent caused by allegations levelled against them. And, BLA is not the only company, there are many more, look at the case of Jindal Steel and Power (JSPL). As per the Affidavit filed by Union on India in Supreme court, Union of India mentioned that a levy of Rs. 295 per tonne should be imposed on the companies for coal extracted by them. In the affidavit, it was wrongly mentioned that a levy of 295 per tonne on the coal extracted was suggested by the CAG report but in reality, the CAG report does not have any such suggestion to Anyone.

The wrong Affidavit was Misleading, resulting in Jindal Steel paying approximately 3300 crores as a penalty. Is this not an eye-opener?

Remember the observations made by the former CAG Vinod Rai. In 2011 – the Government sought Audit Reports by CAG on two key issues: 1) Allocation of Coal Blocks and 2) Augmentation of Coal Production. Vinod Rai, the then CAG – reported the findings and recommendations on the above issues to the Government vide the “Report of the Comptroller and Auditor General of India on Allocation of Coal Blocks and Augmentation of Coal Production” which was duly presented to the Lok Sabha by Prime Minister – Mr. Manmohan Singh. The CAG in its report supported the Parekh Committee’s recommendation for competitive bidding for the allocation of coal blocks. It alongside also surfaced observations and recommendations – a few of which may perhaps be too far-fetched and based on erroneous assumptions. There were evident anomalies in the CAG Report which were further misconstrued, misrepresented, and extrapolated by various stakeholder groups. However, it is important to duly surface the canard of assumptions and errors, which prevail as myths and have clouded the general perception of people. At the same time – also annihilate all misconceptions about the CAG report in the public domain.

ERRONEOUS ASSUMPTIONS MADE BY CAG

Excerpt: “Audit has estimated financial gains to the tune of Rs. 1.86 lakh crore likely to accrue to private coal block allottees (based on the average cost of production and an average sale price of open cast mines of CIL in the year 2010-11).” CAG made highly optimistic assumptions to arrive at the calculation of Rs. 1.86 Lakh Crore, which was based on unrealistic mine reserves and inflated margins. (6.2 Billion Reserves X Rs. 295 per Tonne = Rs. 1.86 Lakh crore) 1) 6.2 Billion Reserves It was assumed that 100% of the estimated reserves of the 218 captive coal blocks over 30 years would be mined. There is in contradiction to its observations and recommendations which took cognizance of the hardships and complexities of developing a Coal Mine. This was duly ascertained by the fact that out of 218 blocks only 40 blocks were operational. It is rather unfortunate that the CAG – a premier audit body of the country could have made calculations based on such notional and inappropriate factors. It is noteworthy to mention in reality – only 300 Mn tonnes of coal have been mined from the captive coal blocks over 20 years as juxtaposed to 6.2 Bn as assumed by CAG. 2) Rs. 295 per Tonne The calculation methodology is derived based on the difference between the average price realization of CIL and the average cost of CIL during the year 2010-11. Rs. / tonne a) Average sale price of all grades of CIL (Open Cast) mines for 2010-11 1028 b) Average Cost price of all grades of CIL (Open Cast) mines for 2010-11 583 c) Financing Cost 150 d) Therefore, average cost = (b + c) i.e. (583 + 150) 733 NET GAIN = (a-d) i.e. (1028 – 733) 295 It is difficult to fathom, how CAG could have erroneously benchmarked the margin price of low-grade coal (F & G so allocated to Private Producers) with that of high-grade coal of CIL mines to arrive at the Mythical figure of Rs. 295/tonne and that too derived from one Financial Year (2010-11) alone. Therefore, the reference figures were not authentic, since they were regardless of price, grade, and cost of production. a) This gross error is evident from the reported facts of CIL’s Annual Reports between the period 1993 – 2010 – which show that their margins have been significantly lower than Rs 295/tonne. b) Moreover, it is worth reckoning that comparative prices of low-grade coal that was mined by the private sector have ranged between Rs. 183 and Rs. 570 over the last 20 years. Thus 295/tonne – was not a truly representative figure and the basic premises of CAG’s calculations were incorrect. In the famous words of Sir Abraham Lincoln: ‘Truth is generally the best vindication against slander. Let’s hope for justice, it may be delayed but not denied. There are many companies who paid an additional levy of 295 Rs per Tonne and these companies are Punjab state electricity board, West Bengal State electricity board, Calcutta electricity supply corporation, and Hindalco respectively.

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SC Collegium Recommends elevation of Justice Prasanna B. Varale as Karnataka HC Chief Justice; Recommends New CJs For Orissa, J&K

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The Supreme Court Collegium has recommended elevation of Justice Prasanna B. Varale, Bombay High Court Judge as the Chief Justice of Karnataka High Court.
Justice Prasanna B. Varale was born on 23rd June, 1962 and enrolled as an Advocate on 12th August, 1985. He also served as a lecturer in Law at Ambedkar Law College, Aurangabad from 1990 to 1992 and as the Assistant Government Pleader and Additional Public Prosecutor, High Court Bench at Aurangabad and also as an Additional Standing Counsel for Union of India.
On July, 18., he was elevated to the bench at Bombay High Court.
The Supreme Court Collegium also recommended to elevate of Orissa High Court Judge, Justice Jaswant Singh, as its Chief Justice.
Justice Singh was February 23, 1961 and was enrolled as an Advocate in 1986 in Haryana. In April 1988, he moved to Chandigarh and held the posts of Assistant Advocate General, Deputy Advocate General, Senior Deputy Advocate General and Additional Advocate General, in the office of Advocate General, Haryana, since March 1991.
On December 5, 2007., he was elevated as a Judge of Punjab and Haryana High Court and on 8th October, 2021., he was transferred to the Orissa High Court.
The Collegium also J&K High Court’s Judge, Justice Ali Mohammad Magrey to take charge as the Chief Justice.
Justice Magrey was born on 8th December, 1960 and enrolled as Advocate in the year 1984. However, he remained as standing counsel from 1986 onwards for various State instrumentalities and was appointed as Additional Advocate General in February, 2003. In September 2009, he was appointed as Senior Additional Advocate General.
On 8th March, 2013., he was appointed as Permanent Judge of the Jammu and Kashmir High Court.

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Supreme Court Collegium Recommends Transfer Of 3 Judges To Bombay, Jharkhand & Tripura High Courts

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The Supreme Court Collegium has recommended transfer of three Judges in its meeting held on 28th September, 2022 in the following manner:
The transfer of Justice Sanjaya Kumar Mishra from Uttarakhand High Court to Jharkhand High Court
Justice Mishra was born on December 29, 1961 and has obtained his LL.B. degree in 1987 and in February 1999 joined as Additional District & Sessions Judge. However, he worked as District & Sessions Judge, Sundergarh, Dhenkanal, Special Judge (CBI), Bhubaneswar and has joined as Registrar General of Orissa High Court.
On October 7, 2009., he was elevated as Judge of the Orissa High Court and was transferred to the Uttarakhand High Court on October 11, 2021. Between December 24, 2021 and June 28, 2022, he served as the Acting Chief Justice of Uttarakhand High Court.
The transfer of Justice K. Vinod Chandran from the Kerala High Court to Bombay High Court
Justice K. Vinod Chandran was born on April 25, 1963 and has started his law practice in 1991. Also, he served as a Special Government Pleader (Taxes) of the Government of Kerala from 2007 to 2011. In November 2011, he was sworn-in as Additional Judge of Kerala High Court and was appointed as a Permanent Judge with effect from June 24, 2013.
The transfer of Justice Aparesh Kumar Singh from Jharkhand High Court to Tripura High Court
Justice Singh was born on 7th July, 1965 and got enrolled as an advocate at Patna in 1990. On 24th January, 2012., he was elevated as an Additional Judge of Jharkhand High Court and was confirmed as permanent Judge on 16th January, 2014. Presently, he is holding an additional charge as Executive Chairman of Jharkhand State Legal Services Authority.

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Kerala High Court Directs Union Health Ministry And Department of Pharmaceuticals To File Response: Patents On Life Saving Drugs

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The Kerala High Court while taking serious note in the case XXX v. Union of India of the unaffordability of a life-saving patented medicine for breast cancer, the Court directed a competent officer of the union health ministry and the department of pharmaceuticals for filing their response on the issue within a month.
A direction has been issued by the Court after noting that the matter had to be taken up at the higher level.
The bench of Justice V.G. Arun observed and has warned that if the counter is not filed within the stipulated time, the court would be constrained to proceed with the case based on the “uncontroverted averments in the writ”.
During the hearing, the counsel appearing on behalf of the Department for Promotion of Industry and Internal Trade (DPIIT) and the Controller General of Patents, Patent Department, Standing Counsel T.C. Krishna submitted that the situation to invoke Sections 92 and 100 for compulsory license of the patented drug as sought for in the petition and was not prevalent as of present.
Further, it was asked by the counsel that how far the court could interfere in this case, since the plea had sought that the drug be made available at a reasonable price. Adding to it, he questioned that weather the Court could suggest what a ‘reasonable price’ would be to the government.
In response to the question, it was clarified by advocate Rahul Bajaj that cancer was not part of the list of the notifiable diseases list issued by the Central Government.
The Amicus Curiae, Advocate Maitreyi Sachidananda Hegde submitted that the authority to take decision under Section 92 or Section 100 of the Patent Act ought to be of the Joint Secretary level as the Assistant Patent Officer could not decide whether the issue falls within the government realm or not.
It was also argued by the Amicus that the legal question which has been raised could be decided by the Court.
Further, it was submitted by Amicus that the counter Affidavit that had been submitted by DPIIT and Patent Department suffered from certain drawbacks for not addressing whether reasonable discretion had indeed been exercised in the instant case or not.
The Counsel appearing for the respondent refused while stating that the government has to take the decision in this regard, before the Patent Department could go ahead with compulsory licensing or any other such measure.
Representing an intervenor, Advocate Bajaj pointed out that the right to health in Indian and International spectrum includes within its ambit the right to life-saving medicines, as well. Hence, it was submitted by the counsel that the issue could not merely be looked into from a policy lens alone, but that it is a rights-based issue in itself.
The Court on 16.09.2022., had taken a suo motto cognizance of the issue of unaffordability of patented life-saving medicines, in light of the death of the petitioner who had espoused this cause having not been able to afford the Ribociclib drug for the treatment of her breast cancer.
Accordingly, the court posted the case for the next hearing on 2nd November 2022.

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Allahabad high court: Not mandatory to summon lower court record before deciding state’s plea for grant of leave u/s 378(3) crpc

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The Allahabad High Court in the case State of U.P. v. Vakil S/O Babu Khan observed and has held that it is not mandatory for the High Court to summon the lower court record in every case before deciding the State Government’s application for grant of leave to appeal against an acquittal order as provided under Section 378(3) Cr.P.C.
It stated that section 378 Cr.P.C. provides for filing of appeal in case of acquittal by the State and sub-section 3 of Section 378 Cr.P.C. contemplates for grant of leave for the entertainment of such appeals filled.
The bench comprising of Justice Ashwani Kumar Mishra and Justice Shiv Shanker Prasad observed and has stated that it is for the High Court to decide on the basis of the facts and circumstances of each case that whether the application filled for grant of leave requires the perusal of the lower court records or not.
However, the court was of the view that though the right of the appellate court to summon the lower court record in an appropriate matter always subsists and it is not necessary for the High Court to call for the lower court records for consideration of an application under Section 378(3) Cr.P.C., in every case or as a matter of routine.
The Court also referred to the Apex Court’s ruling in the case of State of Maharastra Vs. Sujay Mangesh Poyarekar (2008) 9 SCC 475, wherein it was observed that the High Court while exercising the power to grant or refuse leave must apply its mind and considering where a prima facie case has been made out or arguable points have been raised and not whether the order of an acquittal would or would not be set aside.
It was observed that the court also took into account sub-section 2 of Section 384 Cr.P.C. which provides that before dismissing an appeal, summarily, the Court may call up for the record of the case. Thus, the court noted that non-summoning of the lower court records in an appeal against conviction is not fatal and that the use of the expression ‘may’ in sub-section (2) clearly suggests that the power to summon the record is only an enabling provision and as shall it is not to be read.
Further, the court stressed that every appeal is not required to be admitted inasmuch as leave must not necessarily be granted in every matter and the exercise of power in that regard is dependent before the Court upon a prima facie assessment of the material placed so as to ascertain whether the appeal raises arguable points or not.
Subsequently, the Court came to the conclusion that it is not mandatory for the High Court to summon the lower court record in every case before deciding the application for grant of leave under Section 378(3) Cr.P.C.
It was added by the court that the right of the appellate court to summon the lower court record in an appropriate matter always subsists and It is for the High Court to decide on the basis of the facts and circumstances of each case that whether the application for grant of leave requires the perusal of the lower court records or not.

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All women, married or unmarried, entitled to safe and legal abortion: SC

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All women, married or unmarried, entitled to safe and legal abortion: SC

In a landmark judgement this week, the Supreme Court held that all women are entitled to a safe and legal abortion. A bench headed by Justice D.Y. Chandrachud said that the meaning of rape must include marital rape for the Medical Termination of Pregnancy Act.
The Supreme Court said that the distinction between married and unmarried women for the purposes of the MTP Act is “artificial and constitutionally unsustainable” and perpetuates the stereotype that only married women indulge in sexual activities.
The rights of reproductive autonomy give similar rights to unmarried women as those to married women, the bench held.
Insisting on a “forward-looking” approach, the Supreme Court on 7 August opined that any discrimination between married and unmarried women in respect of the medical termination of pregnancy law in India that does not allow a single woman to go for an abortion after 20 weeks violates her personal autonomy.
The top court had said that it would interpret the Medical Termination of Pregnancy (MTP) Act and the related rules to see if unmarried women could be allowed to abort up to a 24-week pregnancy on medical advice.
The upper limit for the termination of pregnancy is 24 weeks for married women, with special categories including survivors of rape and other vulnerable women such as the differently-abled and minors; the corresponding window for unmarried women in consensual relationships is 20 weeks.

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SEBI v/s RIL : Review Petition Admitted

The present issue relates back to certain share transactions of RIL in 1994, whereby around 12 crore equity shares of RIL were “fraudulently” allotted to its promoters and group companies.

Tarun Nangia

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SEBI v/s RIL : Review Petition Admitted

The Supreme Court in the case Securities and Exchange Board Of India vs. Reliance Industries Limited & Ors observed and has allowed for listing of the instant petition in open court.

The bench comprising of the Chief Justice Of India U.U. Lalit, Justice J.K. Maheshwari and the Justice HimaKohli observed while considering the facts and circumstances of the case and on the submissions made by the counsel in the review petition. The bench deemed it appropriate to allowe the application filled for the listing of the instant petition in open court.

Background of the Case:

The present issue relates back to certain share transactions of RIL in 1994, whereby around 12 crore equity shares of RIL were “fraudulently” allotted to its promoters and group companies. In 2020, a complaint was filled by S Gurmurthy, the regulatory initiated probe into the alleged irregularities. An opinion was sought by SEBI of former Supreme Court judge Justice BN Srikrishna twice and also the opinion of a Chartered Accountant named YH Malegam.

It was requested by the RBI for disclosure of these opinions and related internal documents. The RIL filed a writ petition before the Bombay High Court, when SEBI turned the request and the same was dismissed in February 2019.

A Criminal complaint was lodged by SEBI in 2020 before Special Judge, Mumbai against RIL alleging offences punishable under SEBI Act and Regulations. The same was rejected by the Court as time-barred. A revision petition was filled by the regulatory before the Bombay High Court challenging the dismissal of the complaint. However, in SEBI’s revision petition, RIL filed an interlocutory application seeking the disclosure of the documents. The High Court adjourned RIL’s application on March 28, 2022 by stating that it can be considered only along with the main revision petition. Therefore, this led to filling of the special leave petition before the Supreme Court.

On September 29, 2022., the matter was circulated in the Supreme Court. Accordingly, the court listed the review petition for next hearing on 12.10.2022.

Case Title: Securities and Exchange Board Of India vs. Reliance Industries Limited & Ors
Case No: W.P.(C) No. 250 of 2022 & W.P.(C) of 1167 of 2022.
Coram: Chief Justice Of India U.U. Lalit, Justice J.K. Maheshwari, Justice Hima Kohli
Date Of Order: 29th Day of September, 2022.

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