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, 2022 SCC OnLine Raj 1209, 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.

Chhattisgarh High Court
Case BriefsHigh Courts

Chhattisgarh High Court: Rajani Dubey, J., dismissed the petition being devoid of merits.

The facts of the case are that a tractor and trolley was found carrying illegal timber woods in Tamor Pingla Sanctuary Area, Sarguja Forest Circle, Ambikapur. The said vehicle was driven by driver and the owner of the vehicle was also present. After interrogation by the Forest Officer, an offence punishable under Sections 27, 29, 31, 50 & 52 of the Wild Life (Protection) Act, 1972 and Section 26 (1) (e) (f) of the Indian Forest Act, 1927 was registered against the driver and owner of the said and thereafter the said vehicle including timbers was seized. Thereafter, show cause notice was given regarding confiscation of the vehicle and finding the reply unsatisfactory, confiscation order was passed. Against the said order of confiscation, the petitioner filed appeal before the respondent 2, which was dismissed, against which the petitioner filed criminal revision before the learned 3rd Additional Sessions Judge, Ambikapur, District Sarguja which too was dismissed. Hence, present petition under Article 226 of the Constitution of India has been filed.

Counsel for the petitioner submitted that the accused persons have been acquitted by the Criminal Court, thus no offence has been proved against the petitioner and therefore the proceeding of confiscation of the vehicle is illegal and arbitrary.

The Court observed that a bare reading of Section 52, Indian Forest Act, 1927 makes it clear that Forest Officer has power to confiscate the vehicle and the Competent Authority after giving show cause notice to the petitioner.

The Court observed that the  ASJ in the impugned order clearly held that criminal trial and confiscation proceedings may run simultaneously and once the information of confiscation proceeding under Section 52 (e) of the Indian Forest Act is given to the District Magistrate, then the Trial Magistrate has no power regarding confiscated vehicle of being released, disposed etc. and it has been further held that the information of confiscation proceeding was already given to the Chief Judicial Magistrate, Ambikapur and the accused were given ample opportunity of being heard and only thereafter the orders were passed and thereby dismissed the criminal revision of the petitioner.

The Court held “the finding of the learned ASJ that the criminal trial and confiscation proceeding are different proceedings and they may run simultaneously and even after acquittal of the accused persons, the vehicle was found to be involved in transportation of illegal timbers and the same was liable to be confiscated and the accused were given ample opportunity of being heard, is based on proper appreciation of provisions of law and facts as well, which cannot be interfered with by this Court.”

[Gend Lal Kushwaha v. State of Chhattisgarh, 2022 SCC OnLine Chh 617, decided on 01-04-2022]


Arunima Bose, Editorial Assistant has reported this brief.

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: In a matter, wherein a senior citizen has approached the Court with her grievance with respect to her son, Murali Purushothaman, J., expressed that,

“When the Senior Citizen or parent who has earnings makes an application to the Maintenance Tribunal contending that her right to earning is obstructed by the son who has statutory obligation to maintain the parent, the Maintenance Tribunal has to ensure that the Senior Citizen or parent is able to maintain herself from her earnings.”

“To care for those who once cared for us is one of the biggest honours.”

Question for Consideration


If the parent is able to maintain herself from her own earnings, but the son has obstructed the parent to have access to her earning, can the Maintenance Tribunal constituted under the Senior Citizens Act direct the son not to obstruct the parent from taking the earnings and to create a peaceful living atmosphere for her in the residence?

Petitioner, a senior citizen was the wife of K.V. Eapen who had executed Will, whereby life interest was created in favour of the petitioner in respect of A schedule properties in the Will and after her death, the property was to devolve absolutely in favour of their son, the 4th respondent.

As per the Will, the petitioner can enjoy A schedule properties with absolute freedom including the right to collect and take all income and to reside in the house ad libitum.

Later, the Petitioner preferred an application before the Maintenance Tribunal under the Senior Citizens Act against the 4th respondent son and the 5th respondent daughter in law, alleging that they were not maintaining her and were not permitting her and her mother-in-law to stay in the house peacefully and to enjoy or collect usufructs from the property covered by the Will.

Reliefs sought before the Maintenance Tribunal:

(i) to ensure a peaceful living for her and her mother-in-law in the house,

(ii) the right to take usufructs from the property,

(iii) the right to sell the agricultural products yielded during the lifetime of her husband,

(iv) protection for life from son and daughter in law.

Maintenance Tribunal directed respondents 4 and 5:

i) not to obstruct the petitioner from taking usufructs from the property

(ii) to create a peaceful living atmosphere for the petitioner in the house, and

(iii) not to cause any harm to the petitioner.

Petitioner contended that the Maintenance Tribunal did not take any steps to enforce the above-said order, hence the present petition was filed.

Analysis, Law and Decision


A senior citizen including a parent who is unable to maintain himself from his own earning or out of the property owned by him alone is entitled to maintain an application under Section 5.

 High Court expressed that, when a Senior Citizen or parent who has earning makes an application to the Maintenance Tribunal contending that her right to earning is obstructed by the son who has statutory obligation to maintain the parent, the Maintenance Tribunal has to ensure that the senior citizen or parent is able to maintain herself from her earnings.

Power of the Maintenance Tribunal under the Senior Citizens Act is not circumscribed to mere ordering of monthly allowance for maintenance of senior citizen where the relative or children neglect or refuses to maintain the senior citizen or parent, but to ensure maintenance from own earnings to lead a dignified life.

In the present case as well, the directions of the Maintenance tribunal are to remove the incapacity of the petitioner to maintain herself, so that she is not left destitute, but leads a normal dignified life.

The three directions passed by the Maintenance Tribunal, were in furtherance of the purpose of the Act, to ensure that the petitioner maintains herself out of her own earnings to live a normal life with peace, security and dignity.

The Bench added that respondents 4 and 5 cannot just walk away from the moral and statutory obligation to maintain the petitioner. They cannot be permitted to take advantage of their own wrong.

The power of the Maintenance Tribunal under the Senior Citizens Act is not circumscribed to ordering of monthly allowance to be paid in monetary terms for maintenance of senior citizen, but also to ensure maintenance from his own earnings if any, to lead a dignified life.

The Court directed the District Magistrate to take necessary steps to enforce the Maintenance Tribunal’s order within a period of three months. Further, the Bench added that the District Magistrate shall before taking steps to enforce the order make an attempt to see whether the matter can be amicably settled between the petitioner and her son and daughter in law so that they all live in comfort.

In view of the above, the petition was allowed. [Leelamma Eapen v. District Magistrate, 2022 SCC OnLine Ker 1560, decided on 28-3-2022]


Advocates before the Court:

For the Petitioner:

BY ADV SRI.K.M.VARGHESE

For the Respondents:

BY ADV MS.BEA MARY BENNY-R4,5

          GP SRI.C.N.PRABHAKARAN

Case BriefsSupreme Court

Supreme Court: In a case where the District Magistrate had directed confiscation of a Truck under the M.P. Prohibition of Cow Slaughter Act, 2004 despite the criminal proceedings having culminated into acquittal, the bench of KM Joseph and Hrishikesh Roy*, JJ has held that in a case where the offender/accused are acquitted in the Criminal Prosecution, the judgment given in the Criminal Trial should be factored in by the District Magistrate while deciding the confiscation proceeding.

Explaining the scheme of the 2004 Act read with the provisions of CrPC, the Court observed that the objective of the M.P. Prohibition of Cow Slaughter Act, 2004 is punitive and deterrent in nature. Section 11 of the 2004 Act and Rule 5 of M.P Govansh Vadh Pratishedh Rules, 2012, allows for seizure and confiscation of vehicle, in case of violation of sections 4,5,6, 6A and 6B.

“The confiscation proceeding, before the District Magistrate, is different from criminal prosecution. However, both may run simultaneously, to facilitate speedy and effective adjudication with regard to confiscation of the means used for committing the offence.”

Further, the District Magistrate has the power to independently adjudicate cases of violations under Sections 4, 5, 6, 6A and 6B of the 2004 Act and pass order of confiscation in case of violation. However, in a case where the offender/accused are acquitted in the Criminal Prosecution, the judgment given in the Criminal Trial should be factored in by the District Magistrate while deciding the confiscation proceeding.

Hence, applying the aforementioned law at the case at hand, it was held that the appellant’s truck, loaded with cow progeny, was confiscated on account of the criminal proceedings alone and therefore, under the applicable law, the vehicle cannot be withheld and then confiscated by the State, when the original proceedings have culminated into acquittal. Noticeably, it is also not the projected case that there is a likelihood that the appellant’s truck will be used for committing similar offence.

In the present case, the order of acquittal was passed as evidence was missing to connect the accused with the charges.

“The confiscation of the appellant’s truck when he is acquitted in the Criminal prosecution, amounts to arbitrary deprivation of his property and violates the right guaranteed to each person under Article 300A. Therefore, the circumstances here are compelling to conclude that the District Magistrate’s order of Confiscation (ignoring the Trial Court’s judgment of acquittal), is not only arbitrary but also inconsistent with the legal requirements.”

The Court also rejected State Counsel’s submission that the burden of proof is on the truck owner in the process of confiscation, and observed that Section 13A of the 2004 Act, which shifts the burden of proof, is not applicable for the confiscation proceedings but for the process of prosecution. By virtue of Section 13A of the 2004 Act, the burden on the State authority to legally justify the confiscation order, cannot be shifted to the person facing the confiscation proceeding.

“By reason of an order of confiscation, a person is deprived of the enjoyment of his property. Article 300A of the Constitution provides that no person shall be deprived of his property save by authority of law. Therefore, to deprive any person of their property, it is necessary for the State, inter-alia, to establish that the property was illegally obtained or is part of the proceeds of crime or the deprivation is warranted for public purpose or public interest.”

[Abdul Vahab v. State of Madhya Pradesh, 2022 SCC OnLine SC 262, decided on 04.03.2022]


*Judgment by: Justice Hrishikesh Roy


Counsels

For appellant: Advocate Pulkit Tare

For State: Advocate Abhinav Shrivastava

Case BriefsSupreme Court

Supreme Court: Holding Advocates to be officers of the Court, the bench of AM Khanwilkar* and CT Ravikumar, JJ t has held that it would be open to the Chief Metropolitan Magistrate (CMM)/District Magistrate (DM) to appoint an advocate commissioner to assist him/her in execution of the order passed under Section 14(1) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002.

The Court was hearing the appeal against the Bombay High Court judgment wherein it was held that that Section 14(1A) of the 2002 Act does not permit the CMM/DM to authorise an advocate. The language used in the provision is amply clear. Such delegation could be done only to an officer subordinate and none else. The High Court rejected the argument that the overburdened CMM/DM had inadequate subordinate staff and it would be difficult, if not virtually impossible for the secured creditor to take possession of and realise the outstanding dues by disposing the secured asset. The High Court was not impressed with that argument and preferred to strictly construe the stated provision.

This issue arose because of the expression used in the said provision, “may authorise any officer subordinate to him”.

Section 14 of the 2002 Act predicates that if the secured creditor intends to take possession of the secured assets, must approach the CMM/DM by way of an application, in writing, and on receipt of such request, the CMM/DM must move into action in right earnest. After passing an order thereon, he/she (CMM/DM) must proceed to take possession of the secured assets and documents relating thereto for being forwarded to the secured creditor in terms of Section 14(1) read with Section 14(2) of the 2002 Act. Section 14(2) is an enabling provision and permits the CMM/DM to take such steps and use force, as may, in his opinion, be necessary. This position obtained even before the amendment of 2013 i.e., insertion of sub-Section (1A) and continues to this date.

Incidentally, along with insertion of sub-Section (1A), a proviso has also been inserted in sub-Section (1) of Section 14 of the 2002 Act whereby the secured creditor (Bank/Financial Institution) is now required to comply certain conditions and to disclose that by way of an application 28 accompanied by affidavit duly affirmed by its authorised officer in that regard. Sub-Section (1A) is in the nature of an explanatory provision and it merely restates the implicit power of the CMM/DM in taking services of any officer subordinate to him. The insertion of sub-Section (1A) is not to invest a new power for the first time in the CMM/DM as such.

Thus, the question to be decided before the Supreme Court was whether the past practice followed by most of the courts across the country in recognising the power of the CMM/DM to appoint an advocate as a commissioner to assist him in merely taking possession of the secured assets and documents relating thereto and to forward the same to the secured creditor, needs to be discontinued as being prohibited owing to insertion of sub-Section (1A)?

At the outset the Court observed that the construct of the provision must depend on the context of the legislative intent and the purpose for which such dispensation has been envisaged. The setting in which the expression has been used in the concerned section of the Act would assume significance.

The Court observed that the statutory obligation enjoined upon the CMM/DM is to immediately move into action after receipt of a written application under Section 14(1) of the 2002 Act from the secured creditor for that purpose. As soon as such application is received, the CMM/DM is expected to pass an order after verification of compliance of all formalities by the secured creditor referred to in the proviso in Section 14(1) of the 2002 Act and after being satisfied in that regard, to take possession of the secured assets and documents relating thereto and to forward the same to the secured creditor at the earliest opportunity. The latter is a ministerial act. It cannot brook delay. Time is of the essence. This is the spirit of the special enactment. However, it is common knowledge that the CMM/DM are provided with limited resources. That inevitably makes it difficult, if not impossible, for the CMM/DM to fulfil his/her obligations with utmost dispatch to uphold the spirit of the special legislation.

“It is common knowledge that in the respective jurisdictions, there is only one CMM/DM. If he is expected to reach at every location himself for taking possession, in some jurisdictions it would be impracticable, if not impossible, for him to do so owing to large number of applications in the given jurisdiction being a commercial city.”

Hence, strict construct would defeat the legislative intent and purpose for enacting the 2002 Act. Indeed, logistical problems of the Office of the CMM/DM cannot be the basis to overlook the statutory provision. However, an advocate is and must be regarded as an officer of the court and subordinate to the CMM/DM for the purposes of Section 14(1A) of the 2002 Act.

The Court, further, held that the Advocate Commissioner is not a new concept. The advocates are appointed as Court Commissioner to perform diverse administrative and ministerial work as per the provisions of Code of Civil Procedure and Code of Criminal Procedure. An advocate is an officer of the court.

“It is well established that an advocate is a guardian of constitutional morality and justice equally with the Judge. He has an important duty as that of a Judge. He bears responsibility towards the society and is expected to act with utmost sincerity and commitment to the cause of justice. He has a duty to the court first. As an officer of the court, he owes allegiance to a higher cause and cannot indulge in consciously misstating the facts or for that matter conceal any material fact within his knowledge.”

The Court, hence, observed that sub-Section (1A) of Section 14 of the 2002 Act is no impediment for the CMM/DM to engage services of an advocate (an officer of the court) — only for taking possession of secured assets and documents relating thereto and to forward the same to the secured creditor in furtherance of the orders passed by the CMM/DM under Section 14(1) of the 2002 Act in that regard.

The Court made clear that it does not follow that the advocate so appointed needs to be on the rolls in the Office of the CMM/DM or in public service. There is intrinsic de jure functional subordinate relationship between the CMM/DM and the advocate being an officer of the court. The apprehension of the borrowers about improper execution of orders of the CMM/DM passed under Section 14(1) of the 2002 Act by the Advocate Commissioner, is plainly misplaced. Further, being an officer of the court and appointed by the CMM/DM, the acts done by the Advocate Commissioner would receive immunity under Section 14(3) of the 2002 Act — as an officer authorised by the CMM/DM.

“There is no reason to assume that the advocate so appointed by the CMM/DM would misuse the task entrusted to him/her and that will not be carried out strictly as per law or it would be a case of abuse of power. Rather, going by the institutional faith or trust reposed on advocates being officers of the court, there must be a presumption that if an advocate is appointed as commissioner for execution of the orders passed by the CMM/DM under Section 14(1) of the 2002 Act, that responsibility and duty will be discharged honestly and in accordance with rules of law.”

[NKGSB Cooperative Bank Limited v. Subir Chakravarty, 2022 SCC OnLine SC 239, decided on 25.02.2022]


*Judgment by: Justice AM Khanwilkar


Counsels

For Banks: Senior Advocate Rana Mukherjee, and Advocates Viraj Kadam, Manish Shanker Srivastava, Devendra Kumar Singh and M.L. Ganesh,

For Borrowers: Advocate B. Raghunath,

For State of Maharashtra: Advocate Rahul Chitnis

Case BriefsHigh Courts

Delhi High Court: Yashwant Varma, J., held that once a document comes to be duly registered, it becomes a fait accompli.

In the present matter, the petitioner challenged the validity of a show-cause notice issued by the District Magistrate, the second respondent.

The said notice calls upon the petitioner to show cause why sale deeds executed and duly registered be not cancelled on the allegation that the instruments came to be registered by concealment of material facts.

The principal question which falls for determination would be:

 Whether jurisdiction can be recognized to have the jurisdiction or authority to issue the notice impugned?

The allegation of concealment of facts rested upon the competence of M/s G.D Rathi Steels to have conveyed the property in favour of the present petitioners. Petitioners referred to the litigation which ensued between their vendor and DDA and to certain orders passed by the Supreme Court in M.C. Mehta v. Union of India, (1996) 4 SCC 351 and more particularly the order of 10 May 1996 passed in I.A. No. 22.

Petitioners submitted that their vendor derived title to the property pursuant to the orders passed in execution proceedings and the order passed therein. The sale deed in favour of the petitioner came to be executed by M/s G.D. Rathi Steels Ltd. and was duly recorded by the sub-registrar concerned and accorded Registration number. It was only after the above-said instrument had been duly registered that the impugned show cause notice came to be issued.

Analysis, Law and Decision

High Court noted that the Registration Act, 1908 conferred no authority or power upon the District Magistrate to initiate proceedings for cancellation of an instrument which had come to be duly registered.

Further, it was significantly noted that the show cause notice impugned here had not even been shown to have been penned by the District Magistrate. The notice was also not expressed to have been issued pursuant to an order made by the District Magistrate or for and on behalf of the competent authority.

The notice was merely endorsed by a Reader stated to be attached to his office.

Bench stated that the respondents miserably failed to establish any jurisdiction or authority vesting in the District Magistrate to seek cancellation of a document that came to be registered in terms of the provisions of Registration Act, 1908.

The provisions of the Registration Act do not contemplate the registering authority delving into questions of the capacity or entitlement of parties to effect a transaction in relation to the subject matter of the instrument. Also, the Act does not empower the registering authority to undertake an enquiry with respect to the legal validity of the contract which may form the subject matter of the instrument presented for registration.

Function of the registering authority is clearly administrative. The said aspect was duly explained by the Supreme Court in the Satya Pal Anand v. State of Madhya Pradesh, (2016) 10 SCC 767.

The above-cited decision clearly answered the questions raised in favour of the petitioner. The said decision also makes it clear that the appellate power conferred by virtue of Section 72 of the Act also cannot be invoked for the purposes of cancelling a document that had come to be registered.

“…once a document comes to be duly registered, it becomes a fait accompli.”

 What can be done, if one wants to cancel the registration of a document?

The only remedy available to an aggrieved person is to institute appropriate proceedings before a competent curt for cancellation or annulment of the instrument. The Bench also expressed that no provision is made in the Act that can be recognized as conferring authority upon the respondents to cancel a registered instrument.

In view of the above discussion, no writ petition was allowed and the impugned show cause notice shall stand quashed. [Gunmala Jain v. GNCT of Delhi, 2021 SCC OnLine Del 5484, decided on 15-12-2021]


Advocates before the Court:

For the Petitioner: Abhinav Kaushik, Advocate

For the Respondents: Santosh Kumar Tripathi, SC (C), GNCTD with Arun Panwar and Vrinda Singh, Advocates.

Case BriefsHigh Courts

Madhya Pradesh High Court: The Division Bench of Sheel Nagu and Anand Pathak, JJ., allowed a petition which was filed challenging the order of preventive detention passed by the District Magistrate detaining the petitioner for a period of three months by invoking the provisions of Section 3(3) of the National Security Act (“NSA”).

Petitioner dealt in the business of snacks (Namkeen) at Guna for which he had obtained licence under the Food Safety and Standards Act, 2006 for running such business. On receiving complaint, the SDM along with the food squad under “Food Adulteration Removal Drive” and on further investigation it was found that food stuffs and raw material lying thereat were prima facie found to be substandard, misbranded and not according to the provisions of FSSAI. Samples taken were sent for analysis. On 08-02-2021 itself the

State had forwarded the impugned order along with grounds and the supportive relevant material to the Central Government. Petitioner had challenged the impugned order of preventive detention on the ground that reasons for passing the impugned order do not pass the test of breach of public order.

The Court refrained from going into the said grounds of merits rather commented that the petition deserved to be allowed. The Court explained that,” The concept of preventive detention is not punitive. Its purpose is to prevent the breach of public order or its likelihood in future. Thus, by its very nature, power of preventive detention is exercised to prevent and not to punish.”

The Court further observed that the order of preventive detention passed by the District Magistrate Guna was forwarded to the Central Govt after 10 days of passing of the order which breaches the maximum limit of 5 days prescribed in Section 8 of NSA in ordinary circumstances. The Court referred to the Supreme Court judgment in A.K. Roy v. Union of India, (1982) 1 SCC 271 wherein it was mentioned that,

            “76. The objection of the petitioners against the provision contained in S.8 (1) is that it unreasonably allows the detaining authority to furnish the grounds of detention to the detenue as late as five days and in exceptional cases 10 days after the date of detention. This argument overlooks that the primary requirement of S.8 (1) is that the authority making the order of detention shall communicate the grounds of detention to the detenue “as soon as may be”. The normal rule, therefore, is that the grounds of detention must be communicated to the detenue without avoidable delay. It is only in order to meet the practical exigencies of administrative affairs that the detaining authority is permitted to communicate the grounds of detention not later than five days ordinarily and not later than 10 days if there are exceptional circumstances. If there are any such circumstances, the detaining authority is required by S. 8 (1) to record its reason in writing. We do not think that this provision is open to any objection.”

The Court further relied on the judgment of Supreme Court in Hetchin Haokip v. State of Manipur, (2018) 9 SCC 562 and explained that in the instant case, the State in its affidavit had disclosed that after passing of the order of preventive detention on the case was forwarded by the District Magistrate to the State Government under Section 3 (4) after four days. Neither in the order impugned nor in the reply filed by the State there was any explanation for not forwarding the case to the State Government earlier. The delay of four days had not been explained by the official respondents.

The Court allowed the petition and further stated that “The law of preventive detention is an exception to the fundamental right to personal liberty u/Art.21 of the Constitution and therefore has to be strictly construed. Any aberration by the Competent Authority in complying with the statutory procedure laid down under the NSA is not only to be frowned upon but interfered with by the superior court.”[Sulabh Sharma v. State of M.P., 2021 SCC OnLine MP 572, decided on 17-03-2021]


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Allahabad High Court: The Division Bench of Pankaj Mithal and Saurabh Lavania, JJ., directed the District Magistrate to provide protection to senior citizens being troubled by their children.

Petitioners claimed themselves to be senior citizens and were entitled to receive protection and security from the State.

It was alleged that their two daughters along with their sons-in-law were interested in grabbing the house of the petitioners and have inducted one stranger named Sudha in the house due to which petitioners social life has been disturbed.

For attaining protection for their own safety and security, petitioners moved an application before the District Magistrate, Lucknow, but no action was taken.

The Uttar Pradesh Maintenance and Welfare of Parents and Senior Citizens Rules, 2014 framed under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 casts an obligation upon the district administration, especially, the District Magistrate to ensure that the life and property of senior citizens of the district are protected and they are able to live with security and dignity.

Bench stated that in view of Rule 21 of above-stated Rules, District Magistrate is duty-bound to take appropriate steps and action on the aforesaid application of the petitioners.

Court directed the District Magistrate to take immediate action as far as possible within a period of one month.

Petition to be listed for admission/final disposal after 6 weeks. [Dr Krishna Pal Singh v. State of U.P., 2020 SCC OnLine All 1467, decided on 02-12-2020]


Advocates who appeared in the matter:

Petitioner’s Counsel: Daya Shanker Tripathi

Respondent’s Counsel: C.S.C

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of L. Nageswara Rao, Hemant Gupta* and Ajay Rastogi, JJ has upheld Kerala High Court’s decision holding that Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) mandating the District Magistrate to deliver possession of a secured asset within 30 days, extendable to an aggregate of 60 days upon reasons recorded in writing, is a directory provision.

Object of SARFAESI Act

It was noticed that the SARFAESI Act was enacted to provide a machinery for empowering banks and financial institutions, so that they may have the power to take possession of secured assets and to sell them. This was done after Recovery of Debts due to Banks and Financial Institutions Act, 1993, which was first enacted to streamline the recovery of public dues, did not give desirous results.

Does inability to take possession of secured assets within time limit renders the District Magistrate Functus Officio?

Taking note of this objective of the SARFAESI Act in mind, the Court noticed that the time limit to take action by the District Magistrate has been fixed to impress upon the authority to take possession of the secured assets. However, inability to take possession within time limit does not render the District Magistrate Functus Officio.

Interpreting Section 14 of the SARFAESI Act, the Court said that

“… the secured creditor has no control over the District Magistrate who is exercising jurisdiction under Section 14 of the Act for public good to facilitate recovery of public dues. Therefore, Section 14 of the Act is not to be interpreted literally without considering the object and purpose of the Act. If any other interpretation is placed upon the language of Section 14, it would be contrary to the purpose of the Act.”

The Court noticed that the time limit is to instill a confidence in creditors that the District Magistrate will make an attempt to deliver possession as well as to impose a duty on the District Magistrate to make an earnest effort to comply with the mandate of the statute to deliver the possession within 30 days and for reasons to be recorded within 60 days. Hence, the remedy under Section 14 of the Act is not rendered redundant if the District Magistrate is unable to handover the possession. The District Magistrate will still be enjoined upon, the duty to facilitate delivery of possession at the earliest.

Limitations on power of High Courts to pass interim orders

On the issue of borrowers and other aggrieved persons invoking the jurisdiction of the High Court under Articles 226 or 227 of the Constitution of India without availing the alternative statutory remedy, the Court said that though the High Courts are well aware of the limitations in exercising their jurisdiction when affective alternative remedies are available, but a word of caution would still be necessary for the High Courts that

“… interim orders should generally not be passed without hearing the secured creditor as interim orders defeat the very purpose of expeditious recovery of public money.”

[C. Bright v. District Collector, 2020 SCC OnLine SC 909, decided on 05.11.2020]


*Justice Hemant Gupta has penned this judgment

Case BriefsHigh Courts

Allahabad High Court: A Division Bench of Ramesh Sinha and Ajit Kumar, JJ. set aside the impugned order since it was passed on the basis of the inspection report of the Committee constituted by the respondents. However, it was found that the said Committee was not formed in consonance with the Rules, therefore, the impugned order is illegal in law.

In the present case, the petitioner has challenged the legality and propriety involved in the order whereby the petitioner’s licence of the cattle fare/cattle market on his own land has come to be cancelled. The petitioner was initially aggrieved by the notice whereby the running of the cattle market over the land of the petitioner was stopped on certain grounds regarding the sanitation of the place over which the cattle market was being run and that too as a serious threat to the environment and the public at large. The petitioner rushed to this Court and this Court had passed an order directing the respondent to consider the reply of the petitioner to get the spot inspection done of the place where the market was being run and take a decision. The District Magistrate constituted a five-member Committee to get the inspection done of the aforesaid place. Some report was submitted and recommended for action impugned as the cleanliness was not found to the satisfaction, canceling the license of the petitioner.

The Court found that the Committee as had been constituted by District Magistrate was completely de hors the rules prescribed i.e. Rule 3 of the Act of 1960 , and therefore, the constitution of the Committee was per se illegal and cannot result in any recommendation legally enforceable. The Court relied upon the judgment of the Supreme Court in Deepak Babaria v. State of Gujarat, (2014) 3 SCC 502 wherein the Court had held that when a thing is required to be done in a particular manner the same shall be done in that manner alone. Therefore, the Court held that in the present case not only the procedure as prescribed for has not been followed but even the rule of natural justice has come to be violated which has been duly incorporated under Rule 16 of the Rules of 2018 and therefore, the impugned order is set aside. [Mufeed Ali v. State of U.P., 2019 SCC OnLine All 5818, decided on 10-12-2019]

Uttarakhand High Court
Case BriefsHigh Courts

Uttaranchal High Court: Sudhanshu Dhulia, J. entertained a writ petition where the petitioner, a workman was aggrieved by the order of the Deputy Labor Commissioner as his application under Section 14-A of U.P. Industrial Dispute Act, 1947 was rejected for punishing the respondent.

The petitioner contended that he was a workman in a private company since 2003. He was working as a Technician in the Noida factory but was subsequently transferred to Ranchi. Thereafter he contended that a settlement was reached between the Union and the Management wherein one of the stipulated conditions was that “the place of transfer of transferred employees would be changed as per the convenience of the employees concerned”. After the settlement, the said petitioner was transferred to Dehradun but due to his alleged involvement in the trade union activities, he was again transferred to Gauhati, thus, the petitioner alleged that such transfer was in clear violation to the settlement already made. Further, he made a request before the Labour Commissioner to cancel his transfer on the ground that such was violative to the settlement. It was submitted by counsel for the petitioner Singdha Tiwari that under Section 14-A of U.P. Industrial Dispute Act, 1947 i.e., Penalty for breach of a term of the award, there had been a breach of settlement committed by the respondent and he was liable for punishment.

The said application under Section 14-A was rejected by the Commissioner on the ground that what the petitioner was actually relying upon was the settlement which was executed between the Management and Union at Noida and therefore only the Labour Commissioner, Noida had jurisdiction to entertain this application.

The Court observed that Section 14-A of the Act, 1947 which the petitioner had invoked for redressal of his grievance had a long and chequered history. Initially, there was no such provision under the Act, 1947 or even in the Industrial Disputes Act, 1947. In the Act, 1947, Section 14-A was inserted by U.P. Act No. 34 of 1978. It made a breach of a binding settlement (or award) by any person a punishable offence. This provision was inserted as a deterrent to such employers who were earlier able to evade the implementation of an award or settlement. The Court noticed and stated that the provision gave more teeth to the Industrial Disputes Act. However, it was held that since Section 14-A of the Act, 1947 was related to an “offence”, the application would not lie either before the Labor Commissioner, of any place but it was only cognizable by the Magistrate, 1st Class, as such was the stipulation of the law.

The Court cited the relevant provisions which were Sections 15 and 16 of the said Act, and where it was mentioned ‘Offence to be deemed cognizable’ and ‘Cognizance of offence’, the Court further stated that the bare reading of the provisions showed that Magistrate was the only competent authority to adjudicate the matter. It was stated that the first authority which must take cognizance of the mater was the concerned District Magistrate or the public servant by the previous sanction of the DM. Hence, the Court found that the matter was decided by the Labor Commissioner on the point of jurisdiction, without properly adjudicating the real issue. It was held that though the provisions of CrPC were not strictly applicable but Sections 178 and 179 were to be applied and cognizance would have been taken up by the Magistrate rather than Commissioner. The Court allowed the writ petition only on the ground that Deputy Labor Commissioner was wrong in dismissing the application of the petitioner on ground of jurisdiction, before adjudicating with the matter, the Deputy Labor Commissioner must have proceeded in accordance with the law and after appreciating the facts of the case.[Rajesh Kashyap v. Rakesh Pandey, 2019 SCC OnLine Utt 630, decided on 04-07-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Green Tribunal (NGT): The Bench comprising of Adarsh Kumar Goel, Chairperson; S.P. Wangdi and K. Ramakrishnan, Judicial Members,  Dr Nagin Nanda, Executive Member, while giving an order, asked District Magistrate, Meerut and UPPCB for the furnishing of an action report in regard to the alleged unscientific dumping of solid waste in village Ganwri.

The present application was filed by the applicant alleging the unscientific dumping of solid waste taking place on the banks of river Kaali resulting in health issues and causing for about 22 deaths along with 200 people falling prey to sickness.

The primary prayer of the applicant was to restrain setting up of Solid Waste processing Plant without obtaining consent to operate under the Water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of Pollution) Act, 1981 and removal of waste dumped on the land along Kaali river in Gawri Village.

Thus, the tribunal directed the District Magistrate, Meerut and Uttar Pradesh Pollution Control Board (UPPCB) to furnish a factual and action report in one month from the receipt of this order and UPPCB to act as the nodal agency for the purpose of coordination and compliance. The matter is further listed for 26-01-2019. [Naveen Kumar v. Union of India, 2019 SCC OnLine NGT 1, Order dated 16-01-2019]

Legislation UpdatesRules & Regulations

Under Rule 5 of the Noise Pollution (Regulation and Control) Rules, 2000 use of loudspeakers/public address system is restricted in the following manner:

A) They can only be used after obtaining permission from any authority or officer authorised by the Central Government, or as the case may be, the State Government in accordance with the laws in force and includes a District Magistrate, Police Commissioner, or any other officer, not below the rank of the Deputy Superintendent of Police, designated for the maintenance of the ambient air quality standards in respect of noise under any law for the time being in force.

B) The loudspeaker or a public address system shall not be used at night (between 10.00 p.m. to 6.00 a.m.) except in closed premises for communication within, e.g. auditoria, conference rooms, community halls and banquet halls.

C) The State Government may, subject to such terms and conditions as are necessary to reduce noise pollution, permit use of loudspeakers or public address systems during night hours (between 10.00 p.m. to 12.00 midnight) on or during any cultural or religious festive occasion of a limited duration not exceeding fifteen days in all during a calendar year.

Further the Supreme Court of India has passed the following directions in Noise Pollution (V), In re, (2005) 5 SCC 733 at page 782:

1. The noise level at the boundary of the public place, where loudspeaker or public address system or any other noise source is being used shall not exceed 10 dB(A) above the ambient noise standards for the area or 75 dB(A) whichever is lower.

2. No one shall beat a drum or tom-tom or blow a trumpet or beat or sound any instrument or use any sound amplifier at night (between 10.00 p.m. and 6 a.m.) except in public emergencies.

3. The peripheral noise level of privately-owned sound system shall not exceed by more than 5 dB(A) than the ambient air-quality standard specified for the area in which it is used, at the boundary of the private place.