Appointments & TransfersNews

The Collegium comprising of Ranjan Gogoi, CJ and A.K. Sikri, S.A. Bobde, N.V. Ramana and Arun Mishra resolves to reiterate its recommendation dated 10th January, 2019 for transfer of Justice T.B. Radhakrishnan, CJ of Telangana High Court to Calcutta High Court.

[Dated: 19-02-2019]

Supreme Court of India

Cabinet DecisionsLegislation Updates

The Union Cabinet chaired by the Prime Minister Shri Narendra Modi has approved the establishment of Circuit Bench of Calcutta High Court at Jalpaiguri. It will have jurisdiction over four districts namely Darjeeling, Kalimpong, Jalpaiguri and Cooch Behar.

The decision comes in the backdrop of the decision of the Calcutta High Court Full Court Meeting in 1988, Cabinet Decision on 16-6-2006 which approved the setting up of Circuit Bench of Calcutta High Court at Jalpaiguri and the visit by a team of Judges led by Chief Justice of Calcutta High Court to the proposed site of the Circuit Bench at Jalpaiguri on 30-08-2018 to assess the progress regarding the infrastructure facilities there.

[Source: PIB]

Cabinet

Appointments & TransfersNews

The President appointed Justice Debasish Kar Gupta (senior-most Judge of Calcutta HC), to perform the duties of the office of the Chief Justice of Calcutta HC, w.e.f. 25-09-2018 consequent upon the retirement of Shri Justice Jyotirmay Bhattacharya (current Chief Justice of Calcutta HC).

Ministry of Law and Justice

Appointments & TransfersNews

The President in exercise of the powers conferred by clause (1) of Article 224 of the Constitution of India appointed Shri Biswajit Basu, Smt. Amrita Sinha, Shri Abhijit Gangopadhyay, and Shri Jay Sengupta, to be Additional Judges of the Calcutta High Court, in that order of seniority, for a period of two years with effect from the date they assume charge of their offices.

Ministry of Law and Justice

Appointments & TransfersNews

The President in exercise of the powers conferred by clause (1) of Article 217 of the Constitution of India appointed Shri Justice Jyotirmay Bhattacharya, Judge of the Calcutta High Court, to be the Chief Justice of the Calcutta High Court with effect from the date he assumes charge of his office.

Ministry of Law and Justice

Appointments & TransfersNews

The President in exercise of the powers conferred by clause (1) of Article 224 of the Constitution of India, appointed  (i) Smt Shampa Sarkar, (ii) Shri Ravi Krishan Kapur and (iii) Shri Arindam Mukherjee, to be Additional Judges of the Calcutta High Court, in that order of seniority, for a period of two years with effect from the date they assume charge of their offices.

Ministry   of Law and  Justice

Appointments & TransfersNews

The President in exercise of the powers conferred by Article 223 of the Constitution of India  appointed Shri Justice Jyotirmay Bhattacharya, senior-most Judge of Calcutta High Court, to perform the duties of the office of the Chief Justice of that High Court with effect from 25th October, 2017 consequent upon the retirement of Shri Justice Rakesh Tiwari, Acting Chief Justice, Calcutta High Court.

Ministry of Law and Justice

Case BriefsHigh Courts

Calcutta High Court: While condemning the practice of witch hunting, the Court issued certain directives for the State Government in order to eradicate the evil practice of witch hunting.

In the present case, the petitioners were driven out of their villages on suspicion of practicing witchcraft. The Counsel appearing for the Petitioners have submitted that the petitioners have been restored to their home and hearth and adequate police assistance has also been given to them.

The Bench comprising of Joymalya Bagchi J. in view of the observation laid down in Gaurav Jain v. State of Bihar, 1991 Supp (2) SCC 133, directed State Government to undertake the following steps in order to ensure and eradicate the evil practice of witch hunting:-

  • The State Government shall form a Committee comprising of experts from the field of public administration, sociologists, etc. to look into the prevalence of the practice of witch hunting in various districts in the State of West Bengal with special emphasis in tribal areas and the Committee shall submit its report to the State Government within six months from date of the order;
  • The Committee shall specify in its report the areas in the State of West Bengal, if any, where there is substantial prevalence of the practice of witch hunting and based on such report the Government shall form special cells in the concerned districts to deal with the issue of witch hunting in the said districts. The Government shall also post intelligence and police officers in such special cells who would carry on surveillance activity, collection of information and/or intelligence in the matter and, if necessary, take preventive measures to ensure that such unlawful practices are not carried on;
  • Officers of the special cell would also, in the event a witch hunting activity is indulged, promptly register criminal cases against the offenders and take necessary remedial measures in the matter;
  • The victims of witch hunting shall be given District legal assistance through the Legal Services Authority as aggrieved persons who are entitled to legal aid under The Legal Services Authorities Act, 1987 and they shall also be extended necessary medical and psychological help and/or protection as they are the vulnerable witnesses of the crime by the State.
  • The State Government may also explore the possibility of formulating a Comprehensive Victim Compensation Scheme under Section 357A of the Code of Criminal Procedure for victims of witch hunting.

[Smt. Moyna Murmu v. State of West Bengal, 2016 SCC OnLine Cal 4272, decided on August 2, 2016]

Case BriefsHigh Courts

Calcutta High Court: Holding that the show cause notice dated 26th September 2011, demanding service tax from the Petitioner, was barred by limitation, the Court constituted by Justice Arijit Banerjee  quashed it, as well as the Circular of the Central Board for Custom and Excise dated 26th July, 2010 which sought to tax the composite amount of fees paid to IPL players for cricketing and promotional activities, if indistinguishable. The amount of Rs. 1, 51,66,500/- was sought as service tax from Mr Sourav Ganguly, upon amounts received for writing articles in magazines, anchoring TV shows, brand endorsements under ‘business auxiliary services’ [Section 65(19) of the Finance Act, 1994] and IPL fees from KKR as ‘business support service’ under Section 65(105) (zzzq). The Court ordered a refund of the Rs. 1, 51, 66,500/- and Rs. 50 lakhs deposited by the Petitioner.

The Court rejected as ipse dixit grounds of suppression of facts used to extend limitation for demand of service tax, from 1 year to 5 as per Section 73, Finance Act. The Court referred the decision in Simplex Infrastructures Ltd. v. Commissioner of Service Tax, Kolkata 2016 SCC OnLine Cal 571 wherein it was said that question of limitation is a question of jurisdiction and Commission not to have authority to issue notice after a period of limitation. In this connection, the Court held that it cannot be said that the writ petition is not maintainable at all and should not be entertained for adjudication and once a writ petition is admitted, affidavits are invited from respondents and the matter comes up for final hearing before the Court, it would be unjust and unfair to dismiss the writ petition only on the ground of availability of an alternative remedy. and  Commissioner of Central Excise v. Chennai Petroleum Corporation Ltd. 2007 (211) ELT 193 .

Though limitation barred its issue, the notice was quashed on other grounds. The Court noted that the definition of ‘business support services’ was exhaustive and indicated activities promoting business or commercial objectives, inapplicable to the Petitioner’s writing articles or anchoring TV shows. Further, brand promotion/endorsement was taxable under Section 65(105)(zzzzq) from 1st July 2010, after which the Petitioner had paid service tax as Celebrity Brand Ambassador. ‘Brand endorsement’ constituted a different category from ‘business auxiliary service’, as it was settled law that a levy introduced by amendment  to the law did not exist prior to the enactment; hence tax from 1 May 2006 to 30th June 2010 upon endorsements as ‘business auxiliary services’ was not recoverable. The Court approved Commissioner of Service Tax, Delhi v. Shriya Saran 2014 (36) STR 641 where it was held activities prior to 1 July 2010 could not be taxable  and Indian National Shipowners’ Association v. Union of India 2009 (14) STR 289.

The Court drew a parallel with the Order in Appeal No. 330-332/SVS/RTK/2014, dated 6 June 2014, where the Appellant, of Chennai Super Kings, was held to be in the employ of IPL and not an independent worker providing taxable service, as he was constrained by the franchisee.

The Court remonstrated with the Central Board of Excise and Custom not to seek to ‘legislate by issuing circulars/instructions’, citing Commissioner of Central Excise, Bolpur v. Ratan Melting & Wire Industries 2008 (12) STR 416 (an instruction/circular issued by a Ministry could not expand the scope of law, nor create tax liability). It would be de hors the statute to levy tax on composite amount of the fees for match playing and participation in promotional activities. [Sourav Ganguly v. Union of India., 2016 SCC OnLine Cal 3234  decided on 30-06-2016]

 

Case BriefsHigh Courts

Calcutta High Court: Citing the concept of ‘co-extensive’ rights as laid down in Delhi Cloth and General Mills Co. Limited v. Union of India (1986) 2 SCC 288, the bench comprising of I.P. Mukerji J., allowed the writ petition by the Indian Oil Officers’ Association impugning various clauses in a Memorandum of Understanding  between them and the Indian Oil Corporation (Respondents) on grounds of unconstitutionality, arbitrariness, illegality and mala fide intent, through violation of rights to freedom of demonstration, association, etc. under Article 19 of the Petitioner-Association.

The said agreement, governing the IOAA, a Trade Union registered under section 13 of the Trade Unions Act, 1926, was allegedly signed on 24th April 2009 by office-bearers of the IOAA who were then suspended or dismissed employees of the Corporation, and rejected by the All India Central Executive Committee of the IOAA on 29th July 2011. The impugned clauses 4, 11, 13, 16 and 18, sought to:

  1. Bar the Association from membership of any other federation or collective forum (clause 4)
  2. Prevent officers of Grade G and above from membership in the Association. (clause 11)
  3. Bar interference of Association in any manner in rights of Management in employment, non-employment, terms of employment and service conditions (clause 13)
  4. Prevent Officers in the position of Head of Department and Location Head, irrespective of grade, from participation in agitation of any kind. (clause 16)
  5. Stipulate that any violation of the code, reported or observed, would occasion loss of recognition of Association (clause 18)

The Court stated that it could not adjudicate upon questions of fact under its writ jurisdiction, nor upon the private law matter of authority to form contract. Assuming existence of agreement, the Court, while recognising that a company or body corporate could not enforce rights under Article 19 as held in The Tata Engineering and Locomotive Co. Ltd. v. State of Bihar, (1997) 7 SCC 155, and also stated that there may be causes of action common to a body corporate as well as the shareholders or members, or ‘co-extensive’ rights; in which a writ may be maintained by a body corporate or  registered trade union or its members. Further, section 15 (d) of the Trade Unions Act provides for the expenditure of funds by a trade union for conduct of trade disputes on behalf of its members, in effect an espousal of members’ causes. The Court declared its jurisdiction over the public law element, whether it arose from contract or not, and adjudged the impugned clauses as void ab initio and illegal. The Court ordered the supersession of the agreement within 6 months, or else its termination by operation of this order. The Court stated that the writ, filed 6 years after the events, could not be barred by delay, as something non-existent did not trigger a cause of action capable of limitation. Indian Oil Officers’ Association. v. Indian Oil Corporation Ltd, 2016 SCC OnLine Cal 2301 , decided on June 15, 2016.

High Courts

Calcutta High Court: Disposing of the writ petition, a bench comprising of Ashim Kumar Roy, J formulated that to seek relief for encroachment on a highway, the competent authority have to follow the procedure embedded in the West Bengal Highway Act 1964.

In the present case, the petitioner is seeking  mandamus for the enforcement of the Order of Assistant Engineer (Roads) for removal of an illegal and unauthorized construction by the private respondents on the highway, which has not only caused a great inconvenience to the petitioner and his family restricting free ingress and egress from their residence, but also caused inconvenience to the free movement of the public. The Court relying on the contentions of the Counsel for the State, disposed of the writ and found that in this case the requirement of law has not been followed by the competent authority and directed the respondents to act in accordance with the procedure laid down in Section 8 and 10 of the West Bengal Highway Act, 1964, for grant of relief for an illegal encroachment on the highway. Ataur Rahaman v. State of West Bengal, W.P. No. 26365 (W) of 2013, decided on April 23, 2014.

To read the full judgment, click here

High Courts

Calcutta High Court: Dealing as to whether the writ petition can be filed without exhausting the remedies provided in the law, a bench comprising of Dipankar Dutta, J dismissed the writ petition, directing the petitioners to take the recourse as provided in the statute. In the present case, the petitioner sought for information with respect to equipments purchased by the various Government hospitals under Section 6 of the Right to Information Act, 2005 which was not provided to him. Instead of the redressal provided in the Act, petitioner filed petition before this Court contending the Court to interfere as the matter relates to life and liberty of patients of Government hospitals. The Court however came to the conclusion that the matter does not relate to life and liberty of a citizen, therefore the petitioner cannot directly bring a case before this Court, without taking recourse of the remedy provided in the law, and therefore did not entertain the petition. Protap Kundu v. State of West Bengal, Writ Petition 11036 (W) of 2014 decided on April 16, 2014.


For reading full judgment, click here