Rajasthan High Court
Case BriefsHigh Courts

   

Rajasthan High Court: Vijay Bishnoi, J. held the appeal filed by District Magistrate before Divisional Commissioner under Section 18 of Arms Act, 1959 challenging the issuance of arms license in favour of the petitioner who was the holder of license, as non — maintainable.

The petitioner applied for an arms license before the District Magistrate, Banswara and was issued the same on 22-12-2016. The District Magistrate, thereafter, preferred an appeal under Section 18 of Arms Act, 1959 before the Divisional Commissioner with the prayer to cancel the arms license issued in favour of the petitioner.

The Divisional Commissioner vide impugned judgment cancelled the license issued in favour of the petitioner mainly on the ground that on 22-12-2016, the District Magistrate, Banswara was on leave and the charge was given to the Chief Executive Officer of the Zila Parishad, Banswara, however, he was not authorized to issue an arms license and, as such, the license issued in favour of the petitioner is by an unauthorized person, therefore, the same is illegal and liable to be cancelled.

Counsel for petitioner submitted that the appeal preferred on behalf of the District Magistrate, Banswara before the Divisional Commissioner under Section 18 of Arms Act, 1959 was not at all maintainable as it can only be filed by a person, who is aggrieved by the order of the licensing authority refusing to grant a license or varying the conditions of a license or by an order of the licensing authority or the authority to whom the licensing authority is subordinate, suspending or revoking a license.

The Court noted that a bare perusal of Section 18 Arms Act, 1959 clearly reveals that any person can file appeal under the said provision being aggrieved with the action of the licensing authority of refusing to grant a license or varying the condition of license or against the order of suspension or revoking of license. There is no provision where appeal can be entertained under Section 18 of the Arms Act against the order of issuance of arms license.

Thus, the appeal filed by the District Magistrate before the Divisional Commissioner, Udaipur under Section 18 of Arms Act, 1959 challenging the issuance of arms license in favour of the petitioner was not maintainable.

The Court directed the respondents to return arms license to the petitioner and directed the competent authority to take appropriate action under the provisions of Arms Act, 1959 after providing opportunity of hearing for the petitioner, if deem fit.

[Ramesh Chandra Patel v. State of Rajasthan, S.B. Civil Writ Petition No. 7417 of 2022, decided by 05-08-2022]


Advocates who appeared in this case :

Mr. Lakshya Singh Udawat, Advocate, for the Petitioner(s);

Mr. R.D. Bhadu, Dy.GC and Mr. Harshit Bhurani, Advocates, for the Respondent(s).


*Arunima Bose, Editorial Assistant has reported this brief.

Rajasthan High Court
Case BriefsHigh Courts

   

Rajasthan High Court: In a case where NOC was cancelled by Commissioner, Commissionerate College Education and Technical Education Department, (‘Respondent 2') granted to Maharaja Hameer College (‘petitioner-college') Mahender Kumar Goyal J. quashed the cancellation order as there has been wholesale violation of the cardinal principles of natural justice while withdrawing the NOC granted in favour of the petitioners.

The Jamway Educational Trust, a registered society under the Rajasthan Societies Registration Act, 1958, is running the petitioner-college which was granted temporary NOC in 2010 by respondent 2 for running B.A. Course in Arts faculty for the academic Sessions 2010-2011, 2011- 2012 and 2012-2013 which came to be extended from time to time and was later granted permanent NOC vide order dated 09-06-2015. However, Respondent 2 cancelled the permanent NOC vide order dated 21-02-2022 from the Academic Sessions 2022-2023.

The cancellation order was assailed which was disposed by this Court and was given a liberty to pass a fresh reasoned order after affording the petitioner-institution an opportunity of hearing, which led to withdrawal of application. A notice was further issued by Respondent 2 to the petitioner seeking personal appearance, pursuant to which the petitioner through its President/Secretary met respondent 2 in person and submitted a letter dated 24-04-2022 requesting therein to supply copies of the enquiry reports along with documents, part of the reports as the same were not submitted before this Court in the earlier round of litigation.

The petitioner submitted that even after repeated request being made regarding supplying requisite documents and affording it an opportunity of hearing, NOC was permanently cancelled without vide order impugned dated 02-05-2022.

Respondent 2 submitted that several deficiencies and discrepancies were found by the respondents in the petitioner college such as lack of basic infrastructure like library, laboratories, drinking water, toilet, table, chairs and playground etc. It was also found that students of two independent colleges i.e., Maharaja Hameer College & Jamway Kanya College were found to be studying in one building only.

The Court noted that neither the documents appended with the enquiry reports were placed on record by the respondents nor were the petitioners supplied with either copies of the enquiry reports or the documents appended therewith.

The Court further noted that the reason assigned by the respondents that the letter dated 24-04-2022 was dispatched on 25-04-2022 and the receipt of the registered post does not reveal the address of the recipient clearly and hence, it could not be replied by them does not hold merit because there is no categorical denial in the reply that the respondents did not receive the letter and it's a matter of fact that the President/Secretary personally approached the respondent 2.

The Court observed that the respondents were under an obligation to supply the petitioners’ complete copies of the enquiry reports including the documents appended therewith as these have been made basis of passing the impugned order and failure on their part to supply the same, has definitely prejudiced the rights of the petitioners.

It was further observed that a perusal of the order dated 02-05-2022 does not reveal application of mind by the respondent 2 before cancelling the NOC. It simply says that on account of serious irregularities pointed out in the enquiry reports and on failure of the petitioners to submit their response, the NOC is cancelled. Thus, in a society governed by rule of law, such casual approach of the respondents is totally unwarranted. If the petitioners were to be punished merely on the basis of the findings of the Enquiry Committees, there would be no occasion for issuance of a show cause notice or giving the petitioners an opportunity to submit their response and an opportunity of hearing.

The Court remarkedIt is bereft of even a whisper of reason for cancelling the permanent NOC granted in favour of the petitioners-institutions. Even, the original record of the case does not reveal any deliberation by the competent authority on the findings of the enquiry Committees or its satisfaction as to veracity of the allegations levelled against the petitioners-institutions in the show cause notice being cancelling the NOC.”

The Court held that however while setting aside the order passed by the State/Public Authority in violation of principles of natural justice, the matter is remanded back for decision afresh but in the present case as the respondents withdrew their first application and was given another opportunity to pass a reasoned order and has failed again, thus, no opportunity to be provided for fresh orders and the impugned order(s) under challenge stands quashed and set aside.

[Maharaja Hameer College v. State of Rajasthan, SB Civil Writ Petition No. 7709 of 2022, decided on 03-08-2022]


Advocates who appeared in this case :

Mr. R.N. Mathur, Sr. Adv. With Mr. Shovit Jhajharia and Mr. Hemant Singh Yadav Mr. R.B. Mathur, Sr. Adv. With Mr. Dheeraj Palia & Mr. Salim Khan Gori & Mr. Amit Malani, Advocates, for the Petitioner;

Dr. Vibhuti Bhushan Sharma, AAG with Ms. Charvi Patni Mr. R.A. Katta Mr. Vishesh Sharma, Mr. Y.C. Sharma, Mr. R.K. Paliwal, Mr. M.K. Dhakad, Ms. Sweta Pareek, Advocates, for the Respondent.


*Arunima Bose, Editorial Assistant has reported this brief.

Rajasthan High Court
Case BriefsHigh Courts

   

Rajasthan High Court: In a case where the secured creditors like Unit Trust of India (‘UTI') and a workman have preferred their petitions way back in the year 2000 and 2014 respectively, and are awaiting result of the winding up, Pushpendra Bhati, J. held that they cannot be allowed to suffer merely because some subsequent proceedings in the DRT would consume all the assets of the company and give away the auction proceeds to Kotak Mahindra Bank which is a late entrant to the dispute.

Factual Background

A company named Derby Textiles Limited (‘respondent company') was incorporated on 22-05-1980 as a Public Limited Company, limited by shares. It requested the UTI (petitioner in Company Petition 07 of 2000) to subscribe for Secured Redeemable Non-Convertible Debentures (‘SRNCD') of the face value of Rs.4.00 crores, which was thereby agreed and disbursed. On deviation from payments agreed recall notices were issued for payment of outstanding debt along with interest.

Company Petition 07/ 2000

A winding up petition was preferred under Sections 433, 434 and 439, Companies Act, 1956, seeking winding up of the company and appointment of an official liquidator regarding all the assets and properties of the respondent-Company, since the respondent-Company was unable to pay the outstanding debt amount. As the proceedings were pending, the respondent-Company meanwhile made an application that it has been registered as sick company with Board of Industrial and Financial Reconstruction. The company kept dilly-dallying on some or the other issues thereafter in the Court and the matter kept on getting adjourned, even when the Court cautioned the parties that no further adjournments would be given.

Application No.2 of 15 in Company Petition No.9 of 2014

The Company petition was filed for liquidation proceedings to begin and while such adjudication was going on, an application was filed by a workman, i.e. Application No. 2 of 2015 in company petition No. 9 of 2014, contending, as the auction proceedings had already taken place, and unless an official liquidator is appointed to secure the debts of the petitioner, the petitioner's rights shall be permanently prejudiced being a prioritized creditor.

As no one appeared for the respondent company an interim order was passed by the Court on 28-03-2022, “Despite service, none appears for the respondent-Company. In the interest of justice, further proceedings in case No.144/2004 before the Debt Recovery Tribunal, Jaipur shall remain stayed.”

Challenging the aforesaid order, an SLP was filed before Supreme Court which upheld the stay order. Consequently, vide another application Kotak Mahindra Bank Limited was impleaded as party respondent. Thus, application No.01 of 2022 (in company petition No.7 of 2000) was filed on behalf of Kotak Mahindra Bank Limited seeking vacation of the interim order dated 28-03-2022 and one another application No. 4 of 2022 (in company petition No.9 of 2014) was filed by Mr. Anil Vyas, Advocate (on behalf of the auction purchaser- M/s. Noble Art & Craft House, Jodhpur) seeking modification of the aforementioned interim order dated 28-03-2022.

It was contended by Kotak Mahindra Bank Limited as well as the auction purchaser, that their proceedings under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (‘RDDB Act') is on a stronger footing, and that, leave of the Company Court is not necessary under Sections 537 or 446 of the Companies Act, 1956 is a settled proposition and there cannot be any second thought in the mind of the Court.

The Court noted that the jurisdiction of the Tribunal and the Recovery Officer, in terms of the RDDB Act, is exclusive, in respect of the debts payable to Banks and Financial Institutions, and the Company Court cannot use its powers under Section 442 read with Section 537 or under Section 446 of the Companies Act, 1956, against the Tribunal/recovery officer, and thus, Sections 442, 446 and 537 cannot be applied against the Tribunal, is a settled proposition.

The Court further observed that merely because the company was not cooperating and the adjudication of the matter took a long time, the company petitioner cannot be rendered remediless by this Court on account of the complete assets being disbursed by the DRT in a separate proceeding under the RDDB Act. Thus, in the present case, one of the secured creditors UTI and workman have preferred their petitions way back in the year 2000 and 2014 respectively, and are awaiting result of the winding up and the protection of their respective interests, and thus, they cannot be allowed to suffer merely because some subsequent proceedings in the DRT would consume all the assets of the company and give away the auction proceeds to the Kotak Mahindra Bank Limited and the auction purchaser, who are subsequent entrants in the dispute.

Placing heavy reliance on Bank of Nova Scotia v. RPG Transmission Limited, 2004 SCC OnLine Del 1048, the Court did not allow application No.1 of 2022 in company petition No.7 of 2000 filed on behalf of the Kotak Mahindra Bank Limited seeking vacation of the interim order dated 28-03-2022 and application No. 4 of 2022 in company petition No.9 of 2014 filed on behalf of the auction purchaser seeking modification of the said interim order.

[The Specified Undertaking Of the UTI v. Derby Textiles Limited, SB Company Petition 7 of 2000, decided on 27-07-2022]


Advocates who appeared in this case :

Mr. Manoj Bhandari Sr. Advocate assisted by Mr. Aniket Tater. Mr. Siddarth Tatiya and Mr. Shailendra Gwala, Advocates, for the Petitioner(s);

Mr. Sanjay Jhanwar Sr. Advocate assisted by Mr. Rajat Sharma & Mr. Pranav Bafna. Mr. Sanjay Nahar Mr. Anil Vyas Mr. Sanjeet Purohit with Mr. Surendra Thanvi Mr. Naman Mohnot Mr. Pushkar Taimini, Advocates, for the Respondent(s).


*Arunima Bose, Editorial Assistant has reported this brief.

Rajasthan High Court
Appointments & TransfersNews

The President appoints, Shri Justice Manindra Mohan Shrivastava, senior-most Judge of the Rajasthan High Court, to perform the duties of the office of the Chief Justice of the Rajasthan High Court, with effect from 02.08.2022 consequent upon the retirement of Shri Justice Shinde Sambhaji Shiwaji, Chief Justice, Rajasthan High Court.

Rajasthan High Court
Case BriefsHigh Courts

   

Rajasthan High Court: In a case of an illegal termination of a Manager of Kotak Mahindra Bank being pending for relief and having no effective hearing owing to the post of Deputy Labour Commissioner being vacant, Arun Bhansali J. instructed the State to appoint competent authority which was thereby appointed.

The Petitioner was appointed as Senior Manager with the respondent-bank Kotak Mahindra Bank. The petitioner received several awards and accolades for his exceptional performance but on a not so fateful day, he was terminated from his services with immediate effect without any notice or enquiry whatsoever for alleged admitted indulgence in fraudulent activities prejudicial to the interest of the Bank by routing the direct business through DSA (Direct selling agents).

A complaint was filed under Section 10-A of the Industrial Dispute Act (‘ID Act') with an objective to resolve the dispute through conciliation before the Joint Labour Commissioner and Labor Conciliation Officer, Labour Department/Office, Jodhpur. However, owing to vacancies in the office of the Labour Department and thus due to no effective hearing, no action could have been undertaken.

Being aggrieved of the illegal termination order by the respondent bank, the Petitioner filed a Complaint under Section 28-A(2) of the Rajasthan Shops and Commercial Establishments Act, 1958 (‘1958 Act') read with Rule 24B of the Rajasthan Shops and Commercial Establishments Rules, 1959 (‘1959 Rules'). Hence, in the absence of an efficacious remedy to provide any relief against the prima facie illegal termination by the respondent bank, the present writ petition was preferred before the instant Court.

The petitioner contended that the illegal termination was justified as per Clause 19 of the employment agreement which is void ab initio being in contravention to the applicable law. It was further contended that though the petitioner has availed himself of his remedy under the Rajasthan shops and Commercial Establishments Act, on account of the office of the Labour Commissioner at Jodhpur being vacant present petition was filed.

Counsel for respondent submitted that steps have already been taken for appointment of Joint Labour Commissioner and needful is likely to be done by the next date of hearing.

Thus, it was brought to the notice of the Court that the competent authority, i.e. the Dy. Labour Commissioner has been appointed vide order dated 14-07-2022, and hence in light of this, the Court disposed of the petition.

However, the Court remarked that it is expected of the competent authority to deal with the matter filed by the petitioner with utmost expedition.

[Aaraj Sharma v. State of Rajasthan, S.B. Civil Writ Petition No. 7614/2022, decided on 27-06-2022 and 21-07-2022]


Advocates who appeared in this case :

Mr. Siddharth Tatiya, Advocate, for the Petitioner(s);

Mr. Himanshu Shrimali, Advocate, for the Respondent(s).


*Arunima Bose, Editorial Assistant has reported this brief.

Rajasthan High Court
Case BriefsHigh Courts

   

Rajasthan High Court: Dinesh Mehta, J. considered the stamp vendor and Sub Registrar as relevant witnesses in a case where registration of relinquishment deed was challenged, and it was pleaded to summon them as witnesses for ascertaining the claim. The Court stated that ascertaining the relevancy of the proposed witnesses while deciding application under Order XVI Rules 1 and 2 Civil Procedure Code (‘CPC’) is to be prima facie established by the Trial Court.

A suit was instituted declaring the relinquishment deed as null and void wherein the defendant moved an application stating that the stamp vendor – Tulchhiram Sindhi from whom the stamps were purchased and the registering authority – Sub-Registrar, Chunavadh, who registered the contentious document are necessary witnesses may be summoned as witnesses , which was thereby rejected by Additional Civil Judge 1, Sriganganagar. Assailing this, instant writ petition under Article 227 was filed.

Counsel for petitioner Adv. S.K. Shreemali submitted that the plaintiff herself had purchased the stamps and appeared before the Registering Authority, who in discharge of his official duties, had apprised the plaintiff about the relinquishment deed being executed by her and, therefore, their presence as witnesses was imperative in order to substantiate the petitioner’s stand.

Counsel for respondent Adv. Dixit Panwar, submitted that that petitioner’s application is nothing but an attempt to protract the proceedings.

The Court noted that the provisions contained under Order XVI Rule (1) and (2) Civil Procedure Code in unequivocal terms provide that the Court suo moto or on an application, can issue summons to a witness to appear in the Court. Sub-rule (2) of Rule 1 of the Order XVI of the Code enjoins upon the party desirous of getting a summons issued to a witness to state in its application the purpose for which the witness is proposed to be summoned.

The Court observed that on a perusal of subject application it is clear that the petitioner had stated that she herself had purchased the stamp from the stamp vendor – ‘Tulchhiram Sindhi’ and thereafter appeared before the Sub-Registrar, Chunavadh for executing and getting the relinquishment deed registered. Thus, presence of the stamp vendor and Sub-Registrar is necessary in order to ascertain the veracity of petitioner’s stand.

The Court further observed that the Trial Court has not properly considered the mandate contained in Order XVI Rule(s) 1 and 2 CPC and rejected petitioner’s application indicating that the applicant has failed to establish the relevancy of the testimony of these two witnesses. Thus, the applicant may be called upon to show relevance or need of such witness (es) but he/ she cannot be asked to establish or prove such requirement. The requirement has to be determined by the Court.

The Court thus held “the stamp vendor and the then Sub-Registrar are relevant witnesses, who would assist the Court to come to a correct conclusion”

[Gurjant Singh v. Amarjeet Kaur, S.B. Civil Writ Petition No. 13516/2017, decided on 29-06-2022]

*Arunima Bose, Editorial Assistant has reported this brief.

Appointments & TransfersNews


DELHI HIGH COURT


The President transfers Justice Satish Chandra Sharma, Chief Justice, Telangana High Court, as the Chief Justice of the Delhi High Court. 


GAUHATI HIGH COURT


The President appoints Justice Rashmin Manharbhai Chhaya, Judge of the Gujarat High Court, to be the Chief Justice of Gauhati High Court with effect from the date he assumes charge of his office.

 


RAJASTHAN HIGH COURT


The President appoints Justice Shinde Sambhaji Shiwaji, Judge of the Bombay High Court, to be the Chief Justice of Rajasthan High Court with effect from the date he assumes,charge of his office.

 


UTTRAKHAND HIGH COURT


The President appoints Justice Vipin Sanghi, Judge of the Delhi High Court, to be the Chief Justice of Uttarakhand High Court with effect from the date he assumes charge of his office.

 


HIMACHAL PRADESH HIGH COURT


The President appoints Justice Amjad Ahtesham Sayed, Judge of the Bombay High Court, to be the Chief Justice of Himachal Pradesh High Court with effect from the date he assumes charge of his office.

 


TELANGANA HIGH COURT


The President appoints Justice Ujjal Bhuyan, Judge of the Telangana High Court, to be the Chief Justice of Telangana High Court with effect from the date he assumes charge of his office.



KARNATAKA HIGH COURT


The President appoints Justice Alok Aradhe, senior-most Judge of the Karnataka High Court, to perform the duties of the office of the Chief Justice of that High Court, with effect from 03.07.2022.

 

Ministry Of Law & Justice

 

Case BriefsHigh Courts

Rajasthan High Court: Farjand Ali, J. dismissed the bail application of petitioner being accused of honour killing and observed that the investigating agency had left some facts unattended.

The facts of the case are such that the FIR was registered at the instance of the complainant  who is the father of the deceased . The complainant stated that he is a resident of bundi and from last one and a half years his son was  living in Kota. The dead body of his son was observed in “Barda of Jakhmund”. The petitioners were apprehended and were sent to judicial custody after investigation. The present bail application(s) was preferred by accused petitioners who are in judicial custody for the offences punishable under Sections 302, 201, 120- B and 364 of the Penal Code, 1860.

Counsel for the State relied on autopsy report, the last location of the deceased in the company of accused persons, death threats reported by the deceased on numerous occasions, CCTV footage as well as call details to oppose the present bail application.

The Court observed that the instant case has its own peculiar facts which are circumstantially diffusing smell of intent-full homicidal death on account of honour and prestige i.e., having a strong trait of honour killing.

The Court also observed that the substratum of the present case predominantly based upon circumstantial evidence, as no direct evidence or eye-witness is at stand-by for the same. More so, this Court is very well aware of the fact that the present case of the accused petitioner(s) is to be dealt to the extent of adjudication on the issue of bail only. Thus, the appreciation and meticulous evaluation of the facts and circumstances are not ordinarily warranted.

The exercising of judicial discretion as well as invoking the sense for exercising judicial discretion lies with the Court. In order to reach a plausible conclusion, over an issue placed before it, the character of such relevant facts and circumstances of the case are important. As the character of relevant facts and circumstances tends to display two probable sides of an issue; there the judicial discretion recognizes that side of an issue which is closer and more pregnant with sound legal traits based upon the parameters of Rule of Law. Thus, there is a fine distinction in between final hearing on merits and hearing a bail plea under section 439 CrPC.

The Court further noted that that there is no straight jacket formula for grant and dismissal of a bail but guiding by the judicial pronouncements on the issue of bail, it is clear that every case has its own peculiar facts and circumstance attached to it.

The Court observed that after perusing the charge-sheet, the chain of events tentatively showing a well-designed conspiracy and the complicity of every accused person is very much available on record.

The Court thus held the present case is not a fit case for extending bail to the accused petitioners at this stage. Resultantly, both the bail applications filed by the accused (s)are hereby dismissed.

[Bhim Saini v. State of Rajasthan, 2022 SCC OnLine Raj 992, decided on June 10, 2022] 

  

Appearances 

For Petitioner(s): Mr. A.K. Gupta and Mr. Aniket Sharma, Mr. Anil Upman 

For Respondent(s): Mr. Ghanshyam Singh, Mr. Mangal Singh Saini, Mr. R.P. Vijay Mr. Digvijay Singh 


*Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Rajasthan High Court: Dinesh Mehta, J. allowed the petition and remarked that expeditious disposal of cases is necessary but equally necessary is to observe mandate of law including procedural law. 

 

The instant petition was filed under Section 482 of the Code of Criminal Procedure, 1973 i.e., CrPC, challenging the order passed by the Trial Court whereby the petitioner was declared absconder and proceedings under Sections 82 and 83 CrPC was initiated. 

 

Counsel for petitioner submitted that without recording its satisfaction about petitioner’s intention to avoid the proceedings or to abscond, the trial Court initiated proceedings under Sections 82 and 83 of CrPC and issued standing warrant against the petitioner, ignoring the facts and law involved in the present case. 

 

Counsel for respondents submitted that the petitioner never received any summons issued by the Trial Court and the petitioner, despite residing in Jodhpur, intentionally avoided the service of the summons and, therefore, the order passed by the trial Court is perfectly just and valid. 

 

The Court observed that on perusal of Sections 82 and 83 CrPC, it is clear that action under Section 82 CrPC is the pre-requisite to proceed under section 83 CrPC. Section 82 CrPC provides the court power to issue a proclamation upon fulfillment of the following conditions 

  1. Court already issued a warrant
  2. Court has reason to believe (i) such person has absconded or concealed himself such that warrant can’t be executed.

The Court relied on judgment Inder Mohan Goswami v. State of Uttaranchal (2007) 12 SCC 1 wherein it was observed: 

“51. In complaint cases, at the first instance, the court should direct serve of the summons along with the copy of the complaint. If the accused seems to be avoiding the summons, the court, in the second instance, should issue a bailable warrant. In the third instance, when the court is fully satisfied that the accused is avoiding the court’s proceeding intentionally, the process of issuance of the non bailable warrant should be resorted to. Personal liberty is paramount; therefore, we caution courts at the first and second instance to refrain from issuing non-bailable warrants.” 

 

The Court observed that the Court initiated action under sections 82 and 83 CrPC in the absence of any cogent reason to show that the accused is absconding such that warrant cannot be served. A mere recording a ‘it appears’ that accused has absconded is insufficient to proceed under section 82 CrPC  because of the expression “such warrant cannot be executed”.  

  

The Court noted that the alleged absconding or concealment must be for the purpose of avoiding the warrant. The expression “such warrant cannot be executed” is extremely important because what is required to be ascertained is, that the accused is absconding despite being aware of the warrant. In the absence of such a finding, it cannot be said that the accused is dodging or evading the warrant. 

  

The Court opined that before issuing standing warrant and initiating proceedings under Sections 82 and 83 CrPC, the trial Court is required to record a categorical finding/ satisfaction that in spite of knowledge of the warrant, the petitioner has avoided appearance in the Court or has evaded the warrant.  

  

The Court further noted that the endeavor of a Court should be to ensure proper compliance of the statutory provisions and service of the summons as mandated by law. Service of summons is a bed-rock of principles of natural justice. The Courts should not rush to issue a standing warrant and initiate proceedings under Sections 82 and 83 CrPC, unless they are satisfied that the accused is intentionally evading or circumventing the warrants in order to avoid prosecution. 

 

The Court thus held the present petition is allowed and impugned order dated May 16, 2022 is quashed and set aside. [Bhavin Tanwar v. State of Rajasthan v. State of Rajasthan, SB Criminal Misc. (Pet) No 3072 of 2022, decided on May 25, 2022] 


Appearances 

For Petitioner(s): Mr. C.S. Kotwani and Ms. Swati Shekhat 

For Respondent(s): Mr. Mahipal Bishnoi 


*Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Rajasthan High Court: Mahendar Kumar Goyal, J. dismissed the writ petition in view of availability of alternative remedy to the petitioners under the provisions of the SARFAESI Act. 

The instant writ petition was filed by the borrowers for quashing the order dated 15-03-2022 passed by the Chief Metropolitan Magistrate, Jaipur Metropolitan-I in Civil Miscellaneous Case No.164/2022 under Section 14 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for brevity, “SARFAESI Act”) with a further direction to the respondent to grant them benefit of moratorium.

Counsel for petitioners submitted that remedy of appeal is not available to them against an order passed under Section 14. He submitted that in view of existence of an arbitration clause in the loan agreement and filing of an application under Section 9 of the Arbitration and Conciliation Act, 1996 (for brevity, “the Act of 1996”) by the respondent, the respondent could not have resorted to the provisions of Section 14 of the SARFAESI Act.

Counsel for the respondent submitted that the writ petition is not maintainable as the petitioners have an alternative and efficacious remedy under Section 17 of the SARFAESI Act.

The Court relied on Balaji Enterprises v. Authorised Officer in SB Civil Writ Petition No 9054 of 2021 wherein it was observed that

“These writ petitions filed by the petitioners deserves to be dismissed for the reasons; firstly, the petitioners are having alternative efficacious statutory remedy under the SARFAESI Act, 2002; secondly, the guidelines issued by the R.B.I. can be very much looked into by the Debts Recovery Tribunal as well as by the banks while examining the reply if submitted by the petitioners against the notices served upon them and lastly in the facts and circumstances in view of the judgment passed by the Hon’ble Supreme Court in the matter of I.C.I.C.I Bank Limited as well as the Pheonix India (both supra), I am not inclined to exercise the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. Hence, these writ petitions stand dismissed.”

The Court observed that the contention of learned counsel for the petitioners that in view of availability of arbitration clause and invocation of Section 9 of the Act of 1996, the proceedings under the SARFAESI Act could not have been resorted to, does not merit acceptance.

The Court held “the writ petition is dismissed in view of availability of alternative remedy to the petitioners under the provisions of the SARFAESI Act.”[Om Prakash v. Hero Housing Finance Ltd., S.B. Civil Writ Petition No. 6199/2022, decided on 11-05-2022]


Appearances

For Petitioner(s): Mr. Prahlad Sharma

For Respondent(s): Mr. Pramod Kumar


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: In a breather to the candidates challenging the RAS Pre-examination result, the bench of KM Joseph and Hrishikesh Roy, JJ has confirmed the Rajasthan High Court’s division bench directing Rajasthan Public Service Commission (RPSC) to go ahead with the RAS/RTS Combined Competitive Examination-2021 mains examination. It has, however, allowed the 243 candidates, who had approached the Courts, to sit in the Mains Examination to be conducted on March 20-21, 2022.

The Controversy

243 candidates, who had failed to secure position in the list of candidates eligible to appear in the mains examination of RAS/RTS Combined Competitive Examination-2021 had approached the Single Bench of the Rajasthan High Court. It was the case of the candidates that as per the answer key published by the RPSC, some of the answers were marked wrong in the key and hence, it had affected their result.

Single Bench’s order

Mahendar Kumar Goyal J. partly allowed the writ petitions and quashed the final answer key dated 22-11-2021 and result dated 19-11-2021. The RPSC was directed to revise the result of the preliminary examination and to prepare a fresh list of candidates eligible to appear in the mains examination accordingly. This order dated February 22, 2022, came 3 days before the Main Examination was originally scheduled to take place i.e. February 25-26, 2022, not leaving much choice with the RPSC but to reschedule the examination.

Division Bench’s order

The Bench of Akil Kureshi CJ and Sudesh Bansal J. stayed the impugned Single Bench order and left it open for RPSC to conduct a written main examination on the rescheduled date.

Noticing that generally the scope of judicial review against expert’s opinion is extremely limited, the Court observed,

“We have strong prima facie belief that the learned Judge had exceeded the scope of writ jurisdiction in the present case. No legal or factual malafides are demonstrated nor procedural illegality established. It may be that in some cases there is a grey area. That by itself would not be sufficient for the writ court to upturn the decision of the expert’s body.”

Hence, the RPSC had made out a strong prima facie case not only for further hearing of the appeals but also for staying the judgment of the Single Judge.

Supreme Court’s order

The Court refused to interfere with the Division Bench’s order noticing in particular that the order is one granting interlocutory relief and the main matter is pending adjudication.

RPSC had submitted before the Court that the 243 persons before the learned Single Judge in the High Court including the petitioners before this Court can be permitted to participate in the main examination subject to certain safeguards.

The Court, hence, directed that the petitioners in both these cases and also the rest of the persons who approached the Single Judge shall be permitted to sit in the Mains examination to take place on 20th and 21st March, 2022.

The Court, however, made clear that it will be subject to the result of the appeals pending adjudication before the High Court.

“The result of this group shall be kept in a sealed cover and a further decision in regard to them will abide by the result of the appeals before the High Court.”

The Court, hence, directed RPSC to take necessary steps for facilitating the participation of the 243 candidates.

[Ankit Sharma v. Rajasthan Public Service Commission, Special Leave to Appeal (C) Nos. 4270-4271/2022, order dated 14.03.2022]


Counsels

For Candidates: Senior Advocate Guru Krishna Kumar

For RPSC: Senior Advocates Dr. A. M. Singhvi and V. Giri


Also Read:

Raj HC | It would be open for RPSC to conduct written main examination on the rescheduled date, Single Judge bench order stayed

Case BriefsHigh Courts

Rajasthan High Court: A Division Bench of Manindra Mohan Shrivastava CJ and Madan Gopal Vyas J. disposed of the petition and rejected the request to file rejoinder and kept it open to file a properly constituted petition.

The instant writ petition was filed by the petitioners making certain allegations that works under MGNREGA have not been done as per the claim of the authorities and without proper work either having been completed or fully done, various bills have been raised and public fund has been siphoned.

The Court observed that after going through the petition, we find that though there are allegations made in the petition, there is no prima facie material along with the petition to sustain the allegations of the petitioners.

It was also stated that in the reply filed by the respondents, it is submitted that subsequent to filing of the petition, an enquiry on the complaints as made in the petition was carried out but complaints were found to be frivolous, baseless and politically motivated. The Divisional Commissioner order indicates that the enquiry was made after filing of the petition. The main grievance in the petition was that despite complaints being made, no enquiry was being conducted. Therefore, it appeared that some enquiry was made and order was passed.

Counsel for the petitioners prayed that he may be permitted to place on record various materials to sustain his allegations by way of filing rejoinder.

The Court held “If there are no specific allegations contained in the petition, it cannot be allowed to be supplied by way of rejoinder as that is not the scope of rejoinder.”

The court further kept it open for the petitioners to file a properly constituted petition to demonstrate by clinching material sustaining allegations of either work done, not done or not fully done, yet payments made under the MGNREGA scheme of the Government.[Sawai Singh Sodha v. State of Rajasthan, 2022 SCC OnLine Raj 525, decided on 07-03-2022]


Appearances

For Petitioner(s): Mr. Shyam Paliwal

For Respondent(s): Mr. Sunil Beniwal


Arunima Bose, Editorial Assistant has reported this brief.

Appointments & TransfersNews

President appoints Shri Justice Manindra Mohan Shrivastava, senior-most Judge of the Rajasthan High Court, to perform the duties of the office of the Chief Justice of the Rajasthan High Court, with effect from 07-03-2022 consequent upon the retirement of Shri Justice Akil Abdulhamid Kureshi, Chief Justice, Rajasthan High Court.


Ministry of Law and Justice

[Notification dt. 4-3-2022]

Appointments & TransfersNews

President transfers Justice Birendra Kumar, Judge of the Patna High Court as a Judge of the Rajasthan High Court.


Ministry of Law and Justice

[Notification dt. 21-12-2021]

Appointments & TransfersNews

Transfer Notification


President transfers Justice Satish Kumar Sharma, Judge of Rajasthan High Court, as a Judge of Madhya Pradesh High Court.


Ministry of Law and Justice

[Notification Dt. 16-112021]

Appointments & TransfersNews

Appointment of Judges | Rajasthan High Court


Two Judges appointed to Rajasthan High Court:

  • Kumari Rekha Borana
  • Sameer Jain

Ministry of Law and Justice

[Notification dt. 28-10-2021]

Appointments & TransfersNews

President of India, in exercise of the power conferred by clause (l) of Article 217, Article 224 and Article 222 of the Constitution of India, after consultation with the Chief Justice of India, has made the following appointments/transfers:

No. Name (S/Shri) Name of High Court
1. Uma Shanker Vyas, Judicial Officer As Judge of the Rajasthan High Court.
2. Vikram D Chauhan, Advocate As an Additional Judge of the Allahabad High Court.
3. Shri Justice Joymalya Bagchi, Judge Transferred from Andhra Pradesh HC to Calcutta HC.

Ministry of Law and Justice

Notification dt. 25-10-2021]

Appointments & TransfersNews

President appoints the following Advocates and Judicial Officers as Judges of the Rajasthan High Court and directs them to assume charge of their respective offices: –

Sl. No. Name (S/Shri) Name of the High Court in which appointed
1. Farjand Ali, Advocate Rajasthan
2. Sudesh Bansal, Advocate Rajasthan
3. Anoop Kumar Dhand, Advocate Rajasthan
4. Vinod Kumar Bharwani, Judicial Officer Rajasthan
5. Madan Gopal Vyas, Judicial Officers Rajasthan

Ministry of Law and Justice

[Notification dt. 11-10-2021]

Case BriefsSupreme Court

Supreme Court: Expressing on the aspect of independence and impartiality of the arbitrators, Division Bench of M.R. Shah and Aniruddha Bose, JJ., held that,

Though the word ‘Chairman’ is not mentioned explicitly in Seventh Schedule, at the same time, it would fall under clause 1, clause 2, clause 5, and clause 12 of the Seventh Schedule, hence will be ineligible for the purpose of the arbitration.

The above schedule is to be read with Section 12(5) of the Arbitration and Conciliation Act.

Aggrieved and dissatisfied with the impugned order of Rajasthan High Court allowing applications under Section 11 of the Arbitration and Conciliation Act, 1996 and appointing an Arbitrator, Jaipur Zila Dugdh Utpadak Sahkari Sangh Ltd., preferred the present Special Leave Petitions.

Facts leading to the present matter

Respondent and the Sahkari Sangh entered into a Distributorship Agreement for the distribution of milk and butter milk in certain zones in Jaipur for a period of two years.

Disputes arose between the two and as per Clause 13 of the said agreement, all disputes and differences arising out of or in any way touching or concerning the agreement, whatsoever shall be referred to the sole Arbitrator, the Chairman, Jaipur Zila Dugh Utpadak Sahkari Sangh Ltd. and his decision shall be final and binding for the parties.

Respondent approached the Sole Arbitrator for settlement of a commercial dispute between the parties.

But during the pendency of the arbitration proceedings, the respondent approached the High Court for appointment of an arbitrator in exercise of powers under Section 11 of the Act and invoking the arbitration contained in clause 13 of the Agreement.

Opposing the above, petitioner submitted that once the respondent has approached the Sole Arbitrator invoking clause 13 and participated in the arbitration proceedings, it is not open for it to approach the High Court to appoint an arbitrator under Section 11 of the Act.

High Court considering Section 12(5) read with 7th Schedule to the Act, allowed the said application and had appointed the former District and Sessions Judge to act as an arbitrator.

Analysis, Law and Decision

Supreme Court noted that the High Court while allowing the application under Section 11 of the Act had appointed the arbitrator other than the Chairman.

Petitioners Contention:

Agreement was prior to the insertion of Sub­section (5) of Section 12 read with Seventh Schedule to the Act and therefore the disqualification under Sub­section (5) of Section 12 read with Seventh Schedule to the Act shall not be applicable and that once an arbitrator – Chairman started the arbitration proceedings thereafter the High Court is not justified in appointing an arbitrator.

Court’s view:

Petitioner’s contention stated above had no substance.

Supreme Court’s decisions in Trf Ltd. v. Energo Engineering Projects Ltd., (2017) 8 SCC 377, Voestalpine Schienen GMBH v. Delhi Metro Rail Corporation Ltd., (2017) 4 SCC 665, considered in detail the object and purpose of insertion of Section 12(5) read with Seventh Schedule to the Act.

In the decision of Voestalpine Schienen GMBH v. Delhi Metro Rail Corporation Ltd., (2017) 4 SCC 665, it was observed and held by the Court that the main purpose of amending the provision was to provide for ‘neutrality of arbitrators.’

Further, it was observed in the case that,

Sub­section (5) of Section 12 lays down that notwithstanding any prior agreement to the contrary, any person whose relationship with the parties or counsel or the subject­matter of the dispute falls under any of the categories specified in the Seventh Schedule, he shall be ineligible to be appointed as an arbitrator. It is further observed that in such an eventuality i.e. when the arbitration clause finds foul with the amended provisions (Sub­section (5) of Section 12 read with Seventh Schedule) the appointment of an arbitrator would be beyond pale of the arbitration agreement, empowering the court to appoint such arbitrator as may be permissible. It is further observed that, that would be the effect of non obstante clause contained in sub­section (5) of Section 12 and the other party cannot insist on appointment of the arbitrator in terms of the arbitration agreement.

Adding to the above list of decisions, Court added another one, Bharat Broadband Network Ltd.v. Telecoms Limited, (2019) 5 SCC 755, wherein it was observed that Section 12(5) read with Seventh Schedule made it clear that if the arbitrator falls in any one of the categories specified in the Seventh Schedule, he becomes ‘ineligible’ to act as an arbitrator. Once he becomes ineligible he then becomes dejure unable to perform his functions.

Petitioners Contention:

In view of Section 58 of the Rajasthan Cooperative Societies Act, 2001, the dispute between the parties is to be resolved by the Registrar only and as per Bye Laws 30 of Rajasthan Cooperative Societies Act, 2001 shall be applicable and therefore no court shall have jurisdiction and therefore the dispute referred to the former District Judge is unsustainable has no substance.

Court’s view:

Bench opined that, despite Section 58 of the Rajasthan Cooperative Societies Act, 2001, there is an agreement between the parties to resolve the dispute through arbitrator – Chairman. Parties are bound by the agreement and the arbitration clause contained in the Agreement.

Hence, neither Section 58 of the Rajasthan Cooperative Societies Act, 2001 shall not be applicable at all nor the same shall come in the way of appointing the arbitrator under the Arbitration Act.

Significant Question:

Whether the Chairman who is an elected member of the petitioner Sahkari Sangh can be said to be ineligible under Section 12(5) read with Seventh Schedule to the Act or not?

As per the petitioner, Seventh Schedule to the Act ‘Chairman’ is not mentioned and only Manager, Director or part of the Management can be said to be ineligible.

Court’s view:

Bench expressed that Section 12 (5) read with Seventh Schedule was inserted bearing in mind the ‘impartiality and independence’ of the arbitrators. It had been inserted with the purpose of ‘neutrality of arbitrators.’

Independence and impartiality of the arbitrators are the hallmarks of any arbitration proceedings, as observed in Voestalpine Schienen GMBH v. Delhi Metro Rail Corporation Ltd., (2017) 4 SCC 665.

Rule against bias is one of the fundamental principles of natural justice which apply to all judicial proceedings and quasi­judicial proceedings and it is for this reason that despite the contractually agreed upon, the persons mentioned in Sub­section (5) of Section 12 read with Seventh Schedule to the Act would render himself ineligible to conduct the arbitration.

In view of the above-cited decision, Supreme Court held that Chairman of the petitioner Sangh can certainly be held to be ‘ineligible’ to continue as an arbitrator. Court added that though the word ‘Chairman’ is not specifically mentioned, but it would fall in the category of Clause 1; Clause 2; Clause 5; Clause 12 which read as under:

“1. The arbitrator is an employee, consultant, advisor or has any other past or present business relationship with a party.

  1. The arbitrator currently represents or advises one of the parties or an affiliate of one of the parties
  2. The arbitrator is a manager, director or part of the management, or has a similar controlling influence, in an affiliate of one of the parties if the affiliate is directly involved in the matters in dispute in the arbitration.
  1. The arbitrator is a manager, director or part of the management, or has a similar controlling influence in one of the parties.”

Therefore, Chairman who was elected member/Director of the Sangh could certainly be said to be ‘ineligible’ to become an arbitrator as per Section 12(5) read with Seventh Schedule to the Act.

Petitioner’s Contention:

Respondents participated in the arbitration proceedings before the sole arbitrator – Chairman and therefore he ought not to have approached the High Court for appointment of arbitrator under Section 11

Court’s view:

While citing the decision of this Court in Bharat Broadband Network Ltd. v. Telecoms Limited, (2019) 5 SCC 755, wherein it was stated that there must be an ‘express agreement’ in writing to satisfy the requirements of Section 12(5) proviso, Bench found the above substance also unsustainable.

Conclusion

On considering the above discussion, Supreme Court held that once the sole arbitrator – Chairman is ‘ineligible’ to act as an arbitrator to resolve the dispute between the parties in view of Section 12(5) read with Seventh Schedule to the Act he loses mandate to continue as a sole arbitrator.

Hence, High Court did not commit any error in appointing the arbitrator other than the sole arbitrator – Chairman.

Taking into consideration the above reasons, Supreme Court dismissed the applications. [Jaipur Zila Dugdh Utpadak Sahkari Sangh Ltd. v. Ajay Sales & Suppliers, 2021 SCC OnLine SC 730, decided on 9-09-2021]


Advocates before the Court

Gunjan Pathak, Counsel for the Petitioners

Case BriefsHigh Courts

Rajasthan High Court: Dinesh Mehta, J., allowed a petition which was filed challenging the order whereby petitioner’s transfer order dated 28-07-2021 had been amended and she had been posted at Gram Panchayat 12 LNP.

Petitioner was working as Gram Vikas Adhikari and vide order dated 28-07-2021, she was posted at Gram Panchayat, Sahuwala, pursuant to which she joined her duties at Sahuwala on 30-07-2021. After about 14 days of the transfer order transferring her to Sahuwala another order came wherein she was transferred to Gram Panchayat, 12 LNP, treating her to be ‘under transfer’ at Sahuwala.

Counsel for the petitioner submits that pursuant to order dated 28-07-2021 the petitioner was relieved from earlier place of posting on 29-07-2021 and she has joined on 30-07-2021 at Gram Panchayat Sahuwala. Thus, she cannot be treated to be ‘under transfer’ and the impugned order amounts to fresh transfer order within a short span of 14 days.

The Court stated that according to Law of Precedence, judgment passed by Coordinate Bench of this Court was binding, whereas judgment of other High Court was only having persuasive value. The Court was of the consistent view that a transfer order once executed, cannot be cancelled giving reference to the judgment of Kalu Singh v State, 2003(1) WLC 674 and Gangaram Bishnoi v. State, 1994 WLR 537.

The Court was of the opinion that since pursuant to the order dated 28.07.2021 the petitioner had been relieved on 29.07.2021 by the concerned Vikas Adhikari and she had even joined at Panchayat Samiti, Sahuwala, it cannot be said that petitioner was under transfer. As a matter of fact, on 29.07.2021, the petitioner has become Gram Vikas Adhikari of Sahuwala. The order dated 14.08.2021 was thus, clearly contrary to facts.

The Court while allowing the petition held that the transfer order, which has been executed, cannot be cancelled, altered or modified as the petitioner had joined at Sahuwala, directing her to join at Gram Panchayat, 12 LNP amounts to fresh transfer, which cannot be countenanced as it has been passed within a short span of 14 days.[Anusuiya Bishnoi v. State of Rajasthan, 2021 SCC OnLine Raj 1205, decided on 03-09-2021]


Suchita Shukla, Editorial Assistant has reported this brief.


For Petitioner(s): Mr. J.S. Bhaleria

For Respondent(s) : Mr. Kunal Upadhyay for Mr. Sunil Beniwal, AAG