Case BriefsHigh Courts

Uttaranchal High Court: Alok Singh, J. dismissed a writ petition filed by Sahak Nagar Adhikari, who was Public Information Officer under Right to Information Act, 2005.

The petitioner contended that, a show cause notice was issued upon him which sought an explanation as to why a penalty should not be imposed upon him for providing delayed information. He gave a brief reply of the said notice and administered information to the said officer. Thereafter, State Information Commissioner adjudged the matter and imposed a penalty of Rs 25,000 for delayed reply to the notice. He was aggrieved by the said order of the officer and therefore sought justice from the Court.

Mr Parikshit Saini, learned counsel for the petitioner, submitted that impugned order of the Information Officer was arbitrary and patently illegal, hence, was not maintainable. He argued that impugned order was ‘unreasonable’ and ‘non-speaking’, the officer failed to justify the penalty as he gave a brief reply as to why the delay was caused by him for discharging his duties. He relied on the judgment of Supreme Court, in Narendra Kumar v. CIC, 2014 (2) UD 72 where it was observed, “State Public Information Officer has decided any complaint or appeal without any reasonable cause, refused to receive an application for information or has not furnished information within the time etc., in that event penalty can be imposed. In the further opinion of this Court, if there was reasonable cause for furnishing the delayed information then Chief Information Commissioner should not impose penalty merely because there was some delay in supplying the information.”

The Court observed that judgment in case Narendra Kumar was not applicable in the aforementioned case, as in the referred case information was not supplied in time because of natural disaster but in the case of petitioner there was delay of one year in supply of the information whereas Act, 2005 mandates to provide information within thirty days. Cause shown by the petitioner for delay in supplying the information was the excessive workload. The Court stated that, petitioner has not explained his excessive work; this was no ground for the delay in providing the information. One year delay in providing information under the Right to Information Act was too high.

It further held that Commissioner has assigned the reason for the penalty. “Providing information after one year that too on filing of appeal in the State Information Commission amounts to denial of information.” Court found no illegality or perversity in the impugned order and directed the petitioner to pay the aforementioned penalty.[Chandrakant Bhatt v. Uttarakhand Information Commission, 2019 SCC OnLine Utt 356, decided on 10-05-2019]

Hot Off The PressNews

The National Human Rights Commission, NHRC has taken suo motu cognizance of a media report supported with photograph that as many as 20 persons including the Civic Agency staff and the lawyers received head injuries in the alleged police action in Howrah, West Bengal on the 24th April, 2019. Reportedly, demanding action against the police personnel, the Bar Council of West Bengal observed black day throughout the State today and has resolved to cease the work till April 29th in solidarity with the lawyers of Howrah. According to media reports, the incident happened following the lawyers’ faceoff with the Howrah Municipal Corporation staff over parking.

The Commission has issued a notice to the Director General of Police, West Bengal calling for a detailed report in the matter, within four weeks including action taken against the delinquent police personnel and health status of the victims.

It has observed that the contents of the news report, if true, raise the serious issue of violation of human rights of the victims, who have sustained injuries in the incident. Apparently, the police personnel did not deal with the situation in a proper manner which resulted in humiliation and physical injuries to the victims.

According to the media report that the incident was triggered after and the elderly lawyer was turned away by the Guard of the civic headquarters on Mahatma Gandhi Road in Howrah when he tried to park his vehicle in the civic agency’s compound. Thereafter, the lawyers and the civic body staff fought for hours as many lawyers joined the protest against the guard. The civic staff, however, claimed that they were attacked first. Both sides, as mentioned in the news report, pelted stones and bricks at each other before the police intervened and chased away the lawyers.


[Dated: 26-04-2019] 

NHRC

Case BriefsHigh Courts

Orissa High Court: The Bench of Dr A.K. Rath, J., allowed a petition filed against the order of the Trial Court which rejected an application of the petitioner filed under sub-section (2) of Section 80 CPC to waive notice on the ground of urgency.

Plaintiffs-petitioners had instituted the suit for a perpetual injunction against the defendants and also filed an application under sub-section (2) of Section 80 CPC to waive notice on the ground of urgency. However, the Trial Court rejected the application. The petition was filed against the order of the Trial Court. The petitioners had filed an application for injuncting the defendants from demolishing a portion of the house standing over the suit land. The suit had been instituted to obtain an urgent relief against the Government. Mr Sahu, Advocate for the petitioners submitted that the Trial Court had without assigning any reason rejected the petition.

The Court observed that Proviso to sub-section (2) of Section 80 CPC postulates that the Court shall, if it is satisfied, after hearing the parties, that no urgent or immediate relief need be granted in the suit, return the plaint for presentation to it after complying with the requirements of sub-section (1). The Trial Court had rejected the petition without giving reasons. This amounted to the denial of justice. The petition was thus allowed. [Basantilata Swain v. State of Orissa, 2019 SCC OnLine Ori 133, decided on 18-03-2019]

Case BriefsHigh Courts

Patna High Court: The Bench of Vinod Kumar Sinha, J. allowed a criminal appeal granting anticipatory bail to persons who were apprehending their arrest under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989.

Appellants herein were apprehending their arrest in connection with a police case registered for offences punishable under Sections 147, 341, 323, 354, 504, 506 of the Penal Code, 1860 and Sections 3(1)(s) of the SC/ST (Prevention of Atrocities) Act. Allegation against them was that they arrived, heavily armed, at informant’s house, thrashed his wife, assaulted her and made her semi-naked.

Submission of the learned counsel for the appellants, Mr Ashok Kumar Jha, was that Appellant 1 had filed a title suit pertaining to a land which the defendant (in title suit) tried to sell to the informant. However, the Court granted an injunction in favour of the appellants. Holding the same grudge against appellants, a fabricated police case had been lodged against appellants.

In view of facts and circumstances, the Court allowed the appellants to be released on bail in the event of their arrest, on furnishing a bail bond of Rs 25,000 each with two sureties of the like amount to the satisfaction of the learned Special Judge, SC/ST Act, Sitamarhi. [Bhikhari SK v. State of Bihar, 2019 SCC OnLine Pat 257, Order dated 27-02-2019]

Legislation UpdatesNotifications

The National Human Rights Commission has taken suo motu cognizance of media reports about one of the deadliest fire tragedies in the capital in recent years resulting in the death of 17 people were killed at a five-storey hotel in central Delhi’s Karol Bagh on Tuesday,12th February,2018. Many of them died in their sleep after an early morning blaze spread swiftly through AC ducts. Reportedly, the hotel owner had, apparently, carried out unauthorized construction/ modification in the building, after obtaining the clearance from the Fire Department.

The Commission has issued notices to the Chief Secretary, Government of NCT of Delhi, Commissioner of Police, Delhi and the Commissioner, North Delhi Municipal Corporation calling for a detailed report in the matter along with action taken against the errant officers/ officials along with relief and rehabilitation provided to the NOKs of the deceased and the injured persons.

The Commission also expects from the Chief Secretary, Government of NCT of Delhi to immediately form a committee of experts to look into the matter relating to violation of norms by the hotel owners/ shopkeepers and other individuals/ firms who are conducting commercial activities in the residential colonies and encouraging encroachment of public roads by recourse to illegal parking. The Committee should examine all the issues thoroughly and submit a report along with their suggestions to streamline these areas, making them safe and worth living for the citizens. The response is expected, within six weeks.

The Commission is of the opinion that it seems the authorities have not learned any lessons from the tragic incidents occurred in the recent past; no one appears to be bothered about the rules/ norms to be followed by the building owners and local residents. This painful incident could have been avoided if the hotel management and the authorities concerned would have acted sincerely. This is indeed a very serious case of violation of human rights.

The Commission has also observed that recently, several workers had died at clothes ironing workshop in Karol Bagh area of Delhi after a steam boiler caught fire and the victims got trapped due to cloth piles blocking the entrance. Suo-Motu cognizance of the tragic incident was taken by the Commission and a report was called for from the Commissioner of Police and the Chief Secretary, Government of NCT of Delhi of Delhi which is yet to be received.

The Commission has observed some common facts pertaining to both the incidents. In both the incidents, the victims could not come out of the premises due to blocked fire exit. Both the incidents have occurred in the Karol Bagh area which has become highly congested due to commercialization of buildings in the vicinity, in a reckless manner. These incidents raise several issues regarding working of the civic authorities in the National Capital as well as police authorities particularly, in the Karol Bagh and Paharganj areas where huge clusters of hotels have come up and they are often found flouting the prescribed rules in spite of procurement of fire safety clearance. Most of these hotels have installed wooden floorings and fiber glass ceilings in the buildings as emerges from the news report.

The Commission has also noticed that in the instant case, the fire tenders could not reach in time as there was no U-turn on the road for traffic and the vehicles had to drive all the way to Jhandewalan Chowk for a U-turn. The road was also blocked by vehicles parked on the road. In the earlier incident too, the fire tenders could not reach the congested Beadon Pura area in Karol Bagh due to narrow roads and traffic congestion.

Reportedly, it took almost four hours for the police and the firemen in mounting the tough rescue operation at the fateful hotel. The fire, as mentioned in the news report, was reported to the fire brigade around 4:35 AM and 26 fire tenders were immediately sent to the spot which brought the fire under control by 7:30 AM. Later, the cooling operation was launched at 8:00 AM which continued till noon after which the survivors were allowed to enter their rooms to collect their belongings. About 40 of the 45 rooms of the hotel were occupied by the guests, many of whom were from an extended family in Kerala who had come to attend a wedding in Ghaziabad.

According to the media reports, two senior HPCL officials have also died in the fire as six company officials who had come to attend the Petro-tech conference were accommodated in the hotel. The police personnel have reportedly seized the record pertaining to the details of the occupants of the hotel, to identify the deceased and the injured persons. Out of panic some of the guests jumped from the hotel windows to save their lives. One IRS officer who jumped out of a window died in the hospital due to fracture and head injuries.

It is also mentioned in the news reports that the Fire Department had given a Safety Certificate to the hotel on the 28th December 2017, which is valid for three years. The hotel owners have reportedly claimed that the “Arpit Palace Hotel” was a guest house, which as per rules, cannot have an operational kitchen for cooking but the firemen found a fiberglass structure on the rooftop which could be a Bar or Restaurant, the police is yet to investigate the matter. It is also stated further that the fire officials in the year 2014 had found a permanent structure on the roof of the building and orders for its demolition were issued. The demolition was mandatory to obtain safety clearance from the Fire Department. The hotel was also running a bar in the basement which has not been mentioned in the fire audit.

Reportedly, as the fire broke out, most of those who suffered burn injuries tried to make their way down the main staircase but unfortunately, the fire exit door was also locked. The “Water Hydrants” were present but not functional. The Mayor of the North Delhi Municipal Corporation has reportedly stated that electrical wiring was faulty and the fire exit seemed not have been used, for years.

[NHRC]

Case BriefsHigh Courts

Delhi High Court: The Bench of Sunil Gaur, J. refused to invoke the inherent extraordinary jurisdiction of the High Court under Section 482 CrPC.

Petitioners, represented by Akshay Bhatia and Avinash Das Advocates, had prayed for quashing of complaints filed under Section 138 of the Negotiable Instruments Act, 1881 (for dishonour of cheque). The quashing was sought on merits.

N.K. Aggarwal and Priya Pachouri, Advocates appeared for the respondents. It was informed to the Court that notice under Section 251 CrPC had been already framed and petitioners had also given their defence.

Since petitioners had an efficacious remedy to assail the notice framed under Section 251, the High Court refrained from invoking its inherent extraordinary jurisdiction under Section 482. The petitioners were given liberty to assail the notice before the Revisional Court within a period of four weeks. The petition was disposed of accordingly without commenting on merits. [Anand and Associates v. Jugal Kishore Jain, 2019 SCC OnLine Del 6708, Order dated 15-01-2019]

Case BriefsHigh Courts

Orissa High Court: A Single Judge Bench of A.K. Rath, J., quashed the impugned order and allowed the petition which was filed to challenge the order passed by the trial court wherein it returned the plaint for non-compliance notice under Section 80(1) CPC.

The facts of the case are that the plaintiffs-petitioners had instituted the suit for eviction of the defendant from the suit house and delivery of possession. Sri Sri Jagannath Mahaprabhu bije, Sri Jagannath Temple, Puri, had been arrayed as proforma defendant.

The main contention here by the defendants is that notice under Section 80 CPC was not complied with.

The counsel for petitioner Mr. A.P. Bose submitted that neither the State nor its functionaries were parties to the suit and The Administrator of Sri Sri Jagannath Mahaprabhu is a creature of the statute. That the Trial Court had committed manifest illegality in holding that notice under Section 80 CPC has not been complied with. The cardinal requirement under this section is that either the State or any public officer has to be a party to the suit to attract the provision of Section 80(1) of CPC.

The Court placing reliance on the case of Bihari Chowdhary v. State of Bihar, (1984) 2 SCC 627, upheld the above-mentioned contention of the petitioner and quashed the impugned order and allowed the petition. [Anupama Jena v. Bansidhar Jena,2018 SCC OnLine Ori 431, decided on 14-12-2018]

Case BriefsHigh Courts

Jammu and Kashmir High Court: A Single Judge Bench of Sanjeev Kumar, J., allowed a writ petition filed by the petitioner seeking directions upon the respondent authorities to allow him to discharge his duties as sweeper in SBI Branch, Prem Nagar.

The main issue that arose before the Court was whether the respondents were justified in replacing petitioner from his post of sweeper without any justification.

The Court observed that the petitioner was performing his duties in the capacity of a sweeper since a very long time on daily wages; however, he never sought regularization to the said post. He was being replaced by the respondent authorities without any justification and he was not even given an opportunity of being heard. In case if petitioner was not performing his duties diligently, then the respondent authorities should have served a notice upon him and must have given him a reasonable opportunity to explain his situation, rather they have simply decided to replace him with another person and this act on the part of respondents is simply arbitrary.

The Court held that the petitioner being a part-time worker cannot be regularized to his current position but he cannot be arbitrarily removed from his position. Such an exercise of power on the part of respondents is contrary to Article 14 and 16 of the Constitution of India and as such vexed with arbitrariness. Resultantly, the petition was allowed.[Mohd. Abdullah Bhat v. SBI,2018 SCC OnLine J&K 891, order dated 30-11-2018]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Company Law Appellate Tribunal (NCLAT): A Bench comprising of Justice A.I.S. Cheema, Member (Judicial) and Balvinder Singh, Member (Technical) dismissed an appeal filed against the order of National Company Law Tribunal (Mumbai) whereby it had admitted application filed by Operational Creditor under Section 8 read with Section 9 of the Insolvency and Bankruptcy Code, 2016 for initiation of Corporate Insolvency Resolution Process against Corporate Debtor.

Appellant was the Managing Director of Corporate Debtor. His submissions as to existence of dispute as contemplated under the code were not accepted. The main point considered by the Appellate Tribunal was regarding the non-observance of the provision of serving of notice by the Adjudicating Authority (NCLT) before admitting the application. It was argued by the appellant that absence of service of notice by the Adjudicating Authority itself violates principles of natural justice. Reliance was placed upon Starlog Enterprises Ltd. v. ICICI Bank Ltd., 2017 SCC OnLine NCLAT 13 and Mass Metals (P) Ltd v. Sunflag Iron and Steel Co. Ltd., 2017 SCC OnLine NCLAT 504. It was also an admitted fact that the appellant received the notice sent under Section 8 of I&B Code but Veritas Legal, Advocates & Solicitors of operational Creditor but it was contended that Veritas Legal was not the filing authority of the application in NCLT and nor was it authorised by any Board Resolution to act on behalf of Operational Creditor.

The Appellate Tribunal was of the view that Corporate Debtor and appellant had knowledge of the legal proceedings and also of the notice. It observed, “When advocate sends the notice, it is on instructions from the client and the same cannot be ignored by saying that the advocate should also forward authority and Resolution of the Company.” In regard to the requirement of notice to be sent by Adjudicating Authority, the Appellate Tribunal observed that the appellant had sufficient notice and still chose not to appear before NCLT. In such a case, the non-observance of the requirement was not fatal to the appellant’s case. Resultantly, it was held that the appeal was sans merit and was thus dismissed. [J.B. Tiwari v. Biostadt India Ltd., 2018 SCC OnLine NCLAT 563, decided on 30-11-2018]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Company Law Appellate Tribunal (NCLAT): A Two-Member Bench comprising of S.J. Mukhopadhaya(Chairperson) and Bansi Lal Bhatt (Member-Judicial), JJ. set aside an order passed by the National Company Law Tribunal (New Delhi) for being violative of principles of natural justice.

NCLAT had admitted the application filed by the respondent (operational creditor) under Section 9 of the Insolvency and Bankruptcy Code, 2016. The appellant submitted that the said application was admitted without any notice to the corporate debtor. It was contended that the order impugned was passed in contravention of rules of natural justice.

The Appellate Tribunal, after perusing the record, noted that admittedly the order impugned was passed by NCLT without notice to the corporate debtor which was indeed in violation of principles of natural justice. Furthermore, the parties had already settled the matter between themselves. in such view of the matter, the Appellate Tribunal was the view that in effect, the order impugned passed by NCLT and allotter orders passed pursuant thereof were illegal and therefore were set aside. The application preferred by the respondent under Section 9 was dismissed and NCLT was directed to close the proceedings. The appeal was, thus, allowed. [Rajesh Arora v. Sanjay Kumar Jaiswal, 2018 SCC OnLine NCLAT 837, dated 05-11-2018]

Hot Off The PressNews

Madras High Court: As reported by media, the bench comprising of Huluvadi G Ramesh and M.V. Muralidharan, JJ., directed NHAI to establish separate lane for the VIPs at the toll plazas across the country.

In order to implement the direction of the Court, the High Court bench passed interim orders to NHAI to issue circulars at all the toll plazas to provide a separate lane for all the VIPs and sitting judges. The VIP lane would only permit access to judges, top-ministers and emergency vehicles like ambulances.

Concluding the order, the bench stated that, “It is disheartening to note that the vehicles of VIPs and sitting judges are stopped at toll plazas and they are compelled to wait in the toll plazas for 10 to 15 minutes.” The Court also stated that if the present order won’t be complied with, then the consequence would be of a show cause notice to the authorities concerned.

[Source: Financial Express]

Case BriefsHigh Courts

Delhi High Court: A Division Bench comprising of G.S. Sistani and Sangita Dhingra Sehgal, JJ. allowed a writ petition filed for seeking a declaration that the acquisition proceedings under which the land of the petitioner was acquired have lapsed.

A notification was issued under Section 4 of the Land Acquisition Act, 1894 for acquisition of the subject land belonging to the petitioner. It was followed by a declaration under Section 6 vide which the subject land was finally acquired. An award of compensation to the petitioner was also rendered in 1985. However, the compensation was not paid till now. The petitioner submitted that since the compensation has not been tendered, the petitioners were entitled to a declaration that the acquisition proceedings have lapsed in terms of Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.

The High Court perused the record and considered submissions made by the parties. The Court found that there was no room for doubt that compensation had not been tendered to the petitioners, and thus, one of the two necessary ingredients of Section 24(2) of the Act of 2013 was met. Furthermore, having regard to the fact that the award of compensation was announced more than five years prior to the commencement of the Act of 2013, the case of the petitioners was covered by Section 24(2). Thus, according to the Court, the petitioners were entitled to a declaration that the acquisition proceedings initiated under the Land Acquisition Act were deemed to have lapsed. The order was made accordingly. [Satwant Singh v. Land and Building Department,  2018 SCC OnLine Del 10870, dated 27-08-2018]

Case BriefsSupreme Court

Supreme Court: In a PIL filed by Trinamool Congress MLA Mahua Moitra challenging the decision of the Centre on creating a Social Media Communication Hub (SMCH) on the ground that it was an attempt on snooping the citizen’s social media activities in violation of their Right to Privacy under Article 21 of the Constitution of India, Supreme Court has issued a notice against the same.

The Bench comprising of S Abdul Nazeer and Indu Malhotra JJ. had addressed the said petition in which Moitra had accused the government of attempting to invade the privacy of citizens, which eventually violated the Right to Life guaranteed by the Constitution of India.

According to the tender document, the successful bidder will be required “to collect digital media chatter from all core social media platforms as well as digital platforms like news, blogs, and forums”.

Therefore, Supreme Court Bench headed by CJ Dipak Misra on hearing the petition filed earlier, today issued a notice against the “Social Media Communication Hub” that has been proposed by the central government and has sought the assistance of Attorney General KK Venugopal. The case is listed for further proceeding on 03-08-2018.  [Mahua Moitra v. Union of India,2018 SCC OnLine SC 697, order dated 13-07-2018]

Bail Application
Case BriefsHigh Courts

Himachal Pradesh High Court: A Division Bench comprising of Dharam Chand Chaudhary and Ajay Mohan Goel, JJ., addressed a writ petition concerning the status of connectivity in tribal area.

The Hon’ble High Court served a notice to the Respondents – BSNL to file a report along with the required steps in regard of the connectivity in tribal area of Lahaul and Spiti, Kinnaur, Chamba District i.e. Killar and Bharmaur area. For the same purpose if any other steps are also to be taken in order to improve the connectivity in the stated areas then the Court shall be apprised for the same.

The other point of concern raised and also has to be taken care of by the Respondent 4 are the postal services in the stated tribal areas. A report has to be filed on the availability of the postal services in regard to the shortage of postal stamps, postcards, etc. The said issue of postal services was raised due to acute shortage of postal stamps and postcards being noticed in the post office Hikkim, District Lahul and Spiti, the highest post office in the world.

Therefore, the Hon’ble bench of judges has asked to file a report and take necessary actions, needed, for the raised issues and concerns for the improvement of the connectivity in tribal areas. [Virender Thakur v. BSNL,2018 SCC OnLine HP 824, Order dated 22-06-2018]

Case BriefsHigh Courts

Bombay High Court: The Court accepted service of notice through WhatsApp messenger after finding that the notice served was not only delivered, but the attachment was opened as well.

The claimants had filed the execution application against the respondent who was evading all their calls and efforts by legal representatives to reach out to him. He has been evading service of notice under Order XXI Rule 22 of the Code of Civil Procedure, 1908. After tracing his number, a notice was sent to him informing him about the next date of hearing. Notice was served by an authorised officer of the claimant by sending a PDF and message to his mobile number as a WhatsApp message.

The Bench of G.S. Patel, J. accepted this for the purposes of service of Notice under Order XXI Rule 22 as the icon indicators clearly showed that not only was the message and its attachment delivered to the respondent’s number but that both were opened as well. [SBI Cards & Payments Services Pvt. Ltd. v. Rohidas Jadhav,2018 SCC OnLine Bom 1262, order dated 11-06-2018]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Company Law Appellate Tribunal: A two-member bench comprising of S.J. Mukhopadhaya, J. (Chairperson) and Bansi Lal Bhat, J. (Member, Judicial), allowed an appeal filed against the order passed by the National Company Law Tribunal (Adjudicating Authority) whereunder application under Section 9 of Insolvency and Bankruptcy Code 2016, preferred by the respondent was admitted and Insolvency Resolution Professional was appointed.

The appeal was filed by the Director of Lepton Projects (P) Ltd. which was the ‘Corporate Debtor’. The respondent Sanghvi Movers Ltd. was the ‘Operational Creditor’. An application was filed by the Operational Creditor under Section 9 of the I&B Code, after the admission of which ‘Moratorium’ was passed and ‘Insolvency Resolution Professional’ was appointed by NCLT in terms of the Code. However, the appellant challenged the said order of NCLT contending that no notice in terms of Section 8(1) of the Code was given to the appellant before such order was passed.

The Appellate Tribunal perused the record and considered the submissions made on behalf of the parties. It was brought to the notice of the Appellate Tribunal that when the respondents reached to the office of the appellant, no one was found occupying the premises. The Appellate Tribunal also found favour with the contention of the appellant that had a demand notice in terms of Section 8(1) or notice of petition been served on the appellant, they could have settled the claim with the respondent- Operational Creditor. Further, the appellant submitted that the amount had already been paid, which was not contended by the respondent. In such circumstances, the Appellate Tribunal though it fit to set aside the impugned order. Accordingly, the order was set aside as illegal, application preferred by the respondent under Section 9 was dismissed, and the appellant was released from all rigours of law in the matter concerned. [Lepton Projects (P) Ltd. v. Sanghvi Movers Ltd., Company Appeal (AT) (Insolvency) No. 273 of 2048, dated 31-5-2018]

Case BriefsHigh Courts

Madhya Pradesh High Court: A petition filed against the possession notice issued under Rule 8 of the Security Interest (Enforcement) Rules 2002 was dismissed by a Division Bench comprising of Hemant Gupta, CJ and Vijay Kumar Shukla, J.

Argument of the petitioner was that earlier, the concerned Bank initiated proceedings against the petitioner under Section 13 of the SARFAESI Act, 2002. The petitioner invoked the jurisdiction of Debts Recovery Tribunal under Section 17 of the Act. However, such notice was withdrawn. Therefore, the petitioner contended that the Bank was estopped to issue fresh notice to the petitioner.

The High Court did not find any merit in the contention of the petitioner and held that the withdrawal of notice under Section 13(4) did not discharge the petitioner’s debt. The Bank was a secured creditor and a mortgagee and therefore, by withdrawal of earlier notice, the debt did not stand discharged. The Bank continued to be a creditor and petitioner a debtor. Thus, the possession notice could have been issued under the provisions of the Act. Further, the petitioner had an alternate efficacious remedy under Section 17 before the DRT. Accordingly, the petition was dismissed while the petitioner was given a liberty to approach DRT. [Devarshi Kirana Store v. Authorised Officer, 2018 SCC OnLine MP 354, dated 18-5-2018]

Case BriefsHigh Courts

Delhi High Court: While allowing a petition seeking return of a bracelet seized by the Custom Officers, the Single Bench of Sanjeev Sachdeva, J. held that where goods are seized under Section 110 of the Customs Act, 1962 and no notice thereof is given under Section 124(a) within six months of the seizure, the goods are liable to be returned to the person from whose possession they were seized.
In the instant case, the petitioner, on arriving from Dubai, was intercepted at the airport by the Custom authorities. A gold bracelet, owned by him, was seized on the ground that it was imported from Dubai. Petitioner contended that since the Custom Authorities have not issued any notice within six months of the seizure, as mandated by Section 110(2), they ought to return the bracelet. Respondents, however, contended that the bracelet had not been seized, but merely been detained for clearance. Therefore, Section 110(2) had no applicability as the said section applies only in cases of seizure.
The Court noted that there is no provision for detention of goods in the Act, and the Custom Department, under the garb of detention, could not avoid the consequences flowing from seizure of goods. Since the petitioner’s bracelet had been under Custom Department’s seizure for nearly one year and ten months, and no show-cause notice under Section 124(a) of the Act had been issued, the bracelet was liable to be returned to the petitioner. The Court also clarified that the release of the bracelet would not debar the respondents from taking appropriate action in accordance with law. [Jitendra Kumar Sachdeva v. Union of India, Writ Petition No. 1492 of 2016, decided on December 08, 2016]

Case BriefsHigh Courts

Gujarat High Court: Acting upon a suo motu PIL initiated by Justice B.J.Shethna, Former Judge of Gujarat and Rajasthan High Court and letter dated 6.7.2015 of Justice K.R.Vyas, Former Chief Justice, Bombay High Court and Former Judge of Gujarat High Court questioning the allotment of flats, house or plots to the Judges, the bench of V.M. Sahai, ACJ and R.P. Dholaria, J. issued notices to the Government of Gujarat along with 27 sitting and retired judges. The list also includes Justice A.R. Dave, the sitting judge of Supreme Court of India.

The Court stated that in this era of transparency, everything has to be before the public and no one can claim that they are above law. The Court, however, noticed that the intention on the part of the Government appears to be pious that those Judges did not have any plot, flat or house, they should be allotted a plot so that after retirement they may settle down in the house for which the Government has provided the land and that the intention of the Government never meant to allot the plots to the Hon’ble Judges for any other purpose.

Kamal B. Tiwari, the advocate general had mentioned that the cooperative society in which the allotments had been made, belonged to government and that there is free access to public on the road of the society. However, B.T. Rao pointed out that nobody but the members of the society are allowed to access the said roads. Considering the said argument, the Court said that if this is the case, how the Government has not charged 40% amount of land, which is charged from other Cooperative Societies and also if the internal development of the total area of land in the Cooperative Society exists has been carried out by Ahmedabad Municipal Corporation on their expenses then it should be explained on whose order. Considering the urgency of the matter, it will be taken up tomorrow before a newly constituted bench. Allotment of plots to Judges, In re, 2015 SCC OnLine Guj 1043

See also Allotment of Plots to Judges, In re, 2015 SCC OnLine Guj 1044

Matter before the High Court stayed in (2015) 9 SCC 412.