Case BriefsSupreme Court

   

Supreme Court: In appeal against the judgment passed by the Karnataka High Court three-judge bench of Uday Umesh Lalit*, C.J., S. Ravindra Bhat and PS Narasimha, JJ. has held that the time taken by the authorities, in the case at hand, for the disposal of mercy petition of a death row convict cannot be termed as “inordinate delay”, however, the incarceration in solitary confinement did show ill effects on the well-being of the appellant, thus, held that the appellant is entitled to have the death sentence to be commuted to imprisonment for life.

In the case at hand, the appellant was convicted under Sections 302, 376 and 392 of the Penal Code, 1860 and was awarded death sentence by the Trial Court. After that, the appellant filed criminal appeal in the High Court challenging his conviction, wherein the Court confirmed the order of conviction, but disagreed on the sentence to be imposed, but later affirmed the award of death sentence. Then, the appellant filed an appeal in the Supreme Court, wherein the Court upheld the High Court’s decision. The appellant then preferred a petition seeking mercy within seven days after the dismissal of his appeal by the Supreme Court and preferred a review petition against the decision passed by the Court. The mercy petition was rejected by the President and the Court dismissed the review petition and affirmed the award of death sentence.

The appellant then filed a writ petition, wherein the High Court passed the following judgment:

  • There is no excessive, unexplained, inordinate delay attributable to the respondents in deciding the mercy petition.

  • There is no violation of the petitioner’s right under Article 21 of the Constitution of India

  • All the relevant and crucial materials required for deciding the mercy petition were placed before, the Governor and the President and nothing has been kept out of consideration.

  • The Petitioner cannot be said to have been kept in solitary confinement.

The Court while considering the submission regarding delay in execution of death sentence due to pendency of mercy petition, referred to Ajay Kumar Pal v. Union of India, (2015) 2 SCC 478 wherein it was held that “if there is undue, unexplained and inordinate delay in execution of death sentence due to pendency of mercy petitions or the executive as well as the constitutional authorities have failed to consider the relevant aspects, this Court is well within its powers under Article 32 to hear the grievance of the convict and commute the death sentence into life imprisonment on this ground alone, however, the delay must not be caused at the instance of the accused himself”.

The Court said that the delay in Ajay Kumar (supra) was of 3 years and 10 months which was found to be inordinate, and that said delay was not to the account of said petitioner but to the account of the authorities; however, in the present case the entire period spanning over a period of 2 years and 3 months saw disposal of mercy petition at two different levels, one, by the Governor and other by the President. Further, there was a stay order granted by this Court on which was operating all through.

Thus, the Court said that the time taken by each of these authorities and the functionaries assisting them cannot be termed as “inordinate delay” and it was not as if every passing day was adding to the agony of appellant. Further, the Court while referring to A.G. Perarivalan v. State, 2022 SCC OnLine SC 635, said that the facts of this case stand on a completely different footing as against the instant matter, as in this case, no decision was taken by the Governor despite the recommendations of the State Cabinet and as such the benefit of commutation was extended.

Placing reliance on Sunil Batra v. Delhi Admn., (1978) 4 SCC 494 and on Ajay Kumar Pal (supra), wherein it was held that “segregation of a convict from the day when he was awarded death sentence till disposal of his mercy petition, would be in violation of law laid down in Sunil Batra case ”, and held that the incarceration of the appellant in solitary confinement and segregation from 2006 to 2013 was without the sanction of law and completely opposed to the principles laid down in Sunil Batra case.

The Court noted that in the instant case, the period of solitary confinement is for about ten years and has two elements: one, from 2006 till the disposal of mercy petition in 2013; and secondly from the date of such disposal till 2016. Thus, the question arises that, whether on this ground alone, the appellant is entitled to have the death sentence commuted?

The Court viewed that the impact of solitary confinement was obviously evident in the instant case as per the letter given by the medical professional. Thus, the Court held that the appellant is entitled to have the death sentence to be commuted to imprisonment for life.

Moreover, the Court to meet the ends of justice, while commuting the death sentence, imposed upon the appellant, sentence of life imprisonment with a rider that he shall undergo minimum sentence of 30 years, and if any application for remission is moved, the same shall be considered on its own merits only after he has undergone actual sentence of 30 years.

Further, the Court observed that an anomalous situation, like the present one, may arise where even before the review is filed, the mercy petition is required to be filed, thus, the instruction concerned requires suitable modification to enable the convict to file a mercy petition after exhaustion of remedies in Court of law.

[B.A. Umesh v. Union of India, 2022 SCC OnLine SC 1528, decided on 04-11-2022]

*Judgment by: Chief Justice Uday Umesh Lalit


*Apoorva Goel, Editorial Assistant has reported this brief

Madras High Court
Case BriefsHigh Courts

   

Madras High Court: In a habeas corpus petition filed calling for the records pertaining to the order of detention passed by the District Magistrate and to set aside the same and directing the police to produce the petitioner’s father (detenu) confined in the central prison, the division bench of P.N. Prakash* and RMT. Teekaa Raman, JJ. has held that there was an inordinate and unexplained delay of 14 days in considering the representation by the said Minister, thus, impugned detention order is liable to be quashed.

The District Collector passed the detention order holding the detenu to be a “Drug Offender” under Section 2(e) of Tamil Nadu Act 14 of 1982. The Petitioner submitted that there is gross violation of procedural safeguards, which would vitiate the detention, as the representation made on behalf of the detenu was not considered in time and there was an inordinate and unexplained delay.

The Additional Public Prosecutor submitted that though there was a delay in considering the representation, but only based on that, the impugned detention order cannot be quashed. It was also submitted that no prejudice has been caused to the detenu and thus, there is no violation of the fundamental rights guaranteed under Articles 21 and 22 of the Constitution of India.

The petitioner contended that there was a delay of 18 days in considering the representation by the Minister for Home, Prohibition and Excise Department after the Deputy Secretary dealt with it, of which, 4 days were government holidays, hence, there was an inordinate delay of 14 days in considering the representation.

The Court relied on Rekha v. State of T.N., (2011) 5 SCC 244, wherein it was held that the procedural safeguards are required to be zealously watched and enforced by the Courts of law and their rigour cannot be allowed to be diluted based on the nature of the alleged activities undertaken by the detenu’, and further relied on Sumaiya v. Secy. to Government, Prohibition & Excise Department, 2007 SCC OnLine Mad 700 and Tara Chand v. State of Rajasthan, (1980) 2 SCC 321 wherein it was held any inordinate and unexplained delay on the part of the Government in considering the representation renders the very detention illegal.

Thus, the Court held that there was an inordinate and unexplained delay of 14 days in considering the representation by the said Minister, thus, it quashed the impugned detention order and directed the authorities to release the detenu.

[Lilly Pushpam v. Additional Chief Secretary, 2022 SCC OnLine Mad 5174, decided on 02-11-2022]


Advocates who appeared in this case :

S. Nirmal Aditya, Advocate, for the Petitioner;

R. Muniyapparaj, Additional Public Prosecutor, for the Respondents.


*Apoorva Goel, Editorial Assistant has reported this brief.

Madras High Court
Case BriefsHigh Courts

Madras High Court: A writ petition filed under Article 226 of the Constitution of India to issue a writ of habeus corpus to free the detenu from illegal detention, caused due to delay in considering representation, the division bench of Nisha Banu and N. Anand Venkatesh, JJ. while setting aside the impugned detention order, has observed that any inordinate and unexplainable delay on part of the government in considering representation renders the detention illegal, and even a delay of three days in disposal of representation would render the detention illegal. Thus, directed the respondent to release the detenu.

tnd The Court relied on Rekha v. State of Tamil Nadu ((2011) 5 SCC 244), Sumaiya v. The Secretary to Government, 2016 SCC OnLine Mad 10898 and Tara Chand v. State of Rajasthan, 1980 (2) SCC 321, wherein the Court observed that “procedural safeguards are required to be protected zealously and should be enforced by the Courts rigorously without being diluted by the nature and basis of alleged activities of the detenu”, a nd viewed that though several grounds were raised in the writ petition, the petitioner mainly made his argument on the delay because his representation was not considered on time and this wasa gross violation of the procedural safeguards, which would vitiate detention. The Court observed that in the present case there has been a delay of 19 days in submitting the remarks by the Detaining Authority, thus the impugned detention order was illegal and, therefore, liable to be quashed.

[Karthikarani v. State of Tamil Nadu, H.C.P.(MD) No.631 of 2022, decided on 14-10-2022]


Advocates who appeared in this case :

For Petitioner: Advocate. M. Jegadesh Pandian

For Respondent: Additional Public Prosecutor Mr. A. Thiruvadikumar,

Punjab and Haryana High Court
Case BriefsHigh Courts

Punjab and Haryana High Court: The Division Bench of Ajay Tewari and Pankaj Jain, JJ., contemplated the appeal where the interest on refund of excise duty was rejected by the authorities. The main question before the Court was whether the assessee was entitled to interest.

Factual Matrix of the case:

  • The assessee had registered office in Sonepat and applied for central excise duty along with interest before Deputy Commissioner, Central Excise, (Panipat) in 2017, eventually, the refund was sanctioned however claim w.r.t. interest was rejected.
  • An appeal was filed before the Commissioner of Central Excise, (Panchkula) against the rejection of interest, which was dismissed in 2018.
  • Again an appeal was filed before CESTAT, (Chandigarh), the decision of CESTAT was in favour of the assessee and he was entitled to interest on delayed refund from the date of deposit till its realization. An application was forwarded regarding the said claim.
  • While the application of the Assessee was pending before the authorities, the Commissioner of CGST and Central Excise, (Panchkula) filed rectification of mistakes application before the CESTAT.
  • The rectification application was dismissed in 2021.
  • Hence, the present appeal is filed by the Revenue i.e. Commissioner of Central Excise (Panchkula) against the orders passed by CESTAT, (Chandigarh).

Submissions:

Revenue Authority questioned the change of jurisdiction of the Authorities after the new CGST regime. It was contended that the assessee has impleaded wrong authorities for the claim of refund and interest as after the new regime from June 2017, division Sonepat was brought within the jurisdiction of Rohtak Commissionerate. Hence the proper authority would have been Rohtak.

Another contention of the Revenue Authority was that the tribunal has erred in granting interest as per the amended provisions of Section 35FF of the Central Excise Act, 1944.

Findings:

The Court rejected the contention of the Revenue Authority in the light of Section 142 of CGST Act, 2017. The Court held that, “Section 142 of the Act when read with Section 2(48) of the Act is a complete answer to the plea raised by the appellant qua the issue of jurisdiction.” The Court observed that the Sec explicitly provides that every claim of refund shall be dealt under the existing law i.e. Central Excise Act, 1944 and not by the provisions of the Act. Thus the plea of transfer of jurisdiction due to GST regime is not available to the appellant.

Further adjudicating whether the claim of interest was justified, the Court relied upon the judgment of Supreme Court in Sandvik Asia Ltd v. CIT, (2006) 2 SCC 508, where the Supreme Court answered that the Act provided for payment of compensation for delayed payment of amounts due to an assessee in case where the amounts included the interest and the appellant was entitled to interest u/Ss. 244 and 244-A of the Income Tax Act, 1961.

The Court applied the law laid down in Sandvik Asia Ltd in the case of the present assessee and dismissed the instant appeal.  [Commissioner of Central Excise, Panchkula v. Rabi Textiles Ltd. CEA No.8 of 2022 (O&M), decided on 14-03-2022]


Appearances:

Mr. Sourah Goel, Senior Standing Counsel and Mr. Tej Bahadur, Advocate for the appellant.


Aastha Sharma, Editorial Assistant has reported this brief.

Jammu and Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu and Kashmir High Court: Puneet Gupta, J. detention order quashed and non-application of mind by the detaining authority in the present case declared writ large.

In the present case, the petitioner challenged the detention order passed by the respondent, on the ground that the order is a complete verbatim of the dossier submitted by the respondent police and the respondent has merely acted as a Post Office. Further, it was contended that the grounds of detention were not explained to the petitioner nor the right of representation was provided against the detention order. Further, the detention order was passed that the PSA warrant was executed on and that the government approved the detention order after the approval from the Advisory Board and thereafter detention order extended from time to time.

I.H. Bhat, counsel for the petitioner submitted that the status of the FIR was not mentioned in the detention order and was sans the grounds. Finally, it was argued that the detention order was approved by the government after an unreasonable delay of two years.

The Court pointed out that it was not made aware of the reason for the belated approval of the detention order by the government. In case the detention order was not to be executed for more than two years for one reason or another and the approval from the government was to take place after more than two years after the detention order was passed, the efficacy of such detention order cannot sustain after the lapse of two years. Thereby, statutory requirements under PSA Act are not adhered to by the authorities in the case and held it to be bad.

Finally, while quashing the detention order, the Court held that the order of detention was silent on the status of the petitioner in the FIR. Nevertheless, the dossier mentioning the details of the cases against the detenue could not rescue the detention order from being held bad if the detention order was silent on the above aspect. [Farman Ali v. Union Territory of J&K, 2020 SCC OnLine J&K 420, decided on 21-08-2020]

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: A Division Bench of C.T. Ravikumar and V.G. Arun, JJ. dismissed a petition seeking quashing of disciplinary proceedings on the ground of inordinate delay. 

Disciplinary proceedings had been initiated against the petitioner, who was working as Additional Director Income Tax (Investigation), Mumbai, on the charge that he had abused his official position to leak the identity of a particular informant to the assessee, Mr Davinder Ahuja. The petitioner aggrieved by the decision of the Central Administrative Tribunal approached the Court with an application to quash the said proceedings on the grounds of inordinate delay and a second contention that the proceedings would amount to post-decisional hearing. 

The learned counsel for the petitioner, Mr Mohan Parasaran, relying on State of A.P. v. N. Radhakrishnan (1998) 4 SCC 154, submitted that there occurred an inordinate delay in the matter of initiation of disciplinary proceedings. The learned counsel further referred to imputations of misconduct and contended that it was indicative that the competent authority had already arrived at a conclusion on the guilt of the petitioner and hence no fair and impartial enquiry could be conducted thereafter. 

The learned counsel for the respondents, Mr Dinesh R. Shenoy, resisted the aforesaid contentions and submitted that the petitioner was only charge-sheeted and had not filed his written statement of defence, but instead approached the Tribunal. 

The Court after hearing the submissions of both the parties observed that the charge levelled against the petitioner was of a serious and grave nature and hence the authorities were justified in approaching the case with caution and patience. Thus the contention of the petitioner that there was an inordinate delay in initiation of proceedings was rejected by the Court. 

The Court upheld the Tribunal’s observation that the imputations incorporated in the said articles of charge only intended to explain the offending acts allegedly committed by the petitioner and to make the imputation specific and clear. In view thereof, the Court held that the verity of the imputations can only be proved or disproved at the final enquiry and merely because the imputations have been unhappily worded, it cannot be a reason to terminate the proceedings abruptly. It also observed that though the petitioner had attempted to establish the charges against him as baseless, merits of the case could only be established only after an appropriately conducted disciplinary proceeding. 

In view thereof, the Court did not find any compelling reason to interfere with the order passed by the Tribunal, and the petition was dismissed. The Court also directed the petitioner to cooperate with the authorities to complete the proceedings within six months. [Shantam Bose v. Union of India, OP (CAT) No. 205 of 2015, decided on 27-05-2019]

Uttarakhand High Court
Case BriefsHigh Courts

Uttaranchal High Court: A Division Bench of Ramesh Ranganathan, CJ and N.S. Dhanik, J. entertained a writ petition which sought mandamus against respondents and to direct them to re-fix the last cut-off marks for general candidates; to prepare the selected list as per the respective categories; and to appoint petitioner as per his merit in the general category, the exam was conducted in 2015 i.e. four years ago.

The learned counsel for the petitioner, Tapan Singh submitted that, the petitioner applied for the post of Lecturer (Electronics), he succeeded in the screening test and secured qualifying marks in interview, but the list declared by the respondent did not reflect his name. He further submitted that several other candidates who were selected under various reserved categories were initially considered under general category but the respondent by unfair means had given the appointment to them. It was further contended that the petitioner’s grievance was that the candidates who were selected in the screening test under the reserved categories, were treated as in General category after the process of interview was completed; they were appointed in General category posts; consequently, he was deprived of being appointed to the post of Lecturer under the General category; the aforesaid individuals ought to have been selected and appointed in their respective reserved categories; it was pleaded that such candidates were not entitled to be appointed; and the vacancy, caused as a result, in the General category should be filled up with the petitioner, who belonged to the General category only.

B.D. Kandpal, learned counsel for the respondent- State argued that a large number of applications were received from applicants to be considered for selection and appointment to various posts, there was a proper procedure for the selection and various people are involved hence, negating the chances of fraud, the marks obtained by them in the screening test has no relevance thereafter; the entire selection process, thereafter, was based only on the marks secured by candidates in the interview; candidates, who are found meritorious in the interview, are alone selected and appointed to the posts. The various candidates were appointed as per the merit list and there is no misappropriation of seats for general or reserved category. The meritorious one’s were allotted under general category and likewise.

The Court did not pay much attention to the merits and facts of the case relied on State of M.P v. Nandlal Jaiswal, (1986) 4 SCC 566, where the Supreme Court held that Now, it is well settled that the power of the High Court to issue an appropriate writ under Article 226 of the Constitution is discretionary and the High Court in the exercise of its discretion does not ordinarily assist the tardy and the indolent of the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner in filing a writ petition and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in the exercise of its writ jurisdiction. Hence, the petition was duly dismissed by the Court, as it does not ordinarily permit a belated resort to the extraordinary remedy under the writ jurisdiction because it is likely to cause confusion and public inconvenience and bring in its train new injustices.[Suneel Singh Bhandari v. State of Uttrakhand, 2019 SCC OnLine Utt 430, decided on 09-05-2019]

National Consumer Disputes Redressal Commission
Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission: Justice V.K. Jain (Presiding Member), allowed a consumer complaint seeking a refund of money paid to book a residential flat in a construction project being carried out by the developer. 

Complainant herein had booked a residential flat in a project started by the opposite party (OP) by paying a booking amount of approximately Rs 1 crore. As per the allotment letter dated 20-02-2015, possession of flat was to be delivered to the complainant by March 2015; though an additional grace period of six months was available to the OP which could be invoked in case the possession was delayed due to unforeseen circumstances. However, the complainant was not given the possession even after almost 3.5 years.

The OP resisted this complaint on the ground that the delivery of possession got delayed as land on which project was to be developed was acquired by Yamuna Expressway Industrial Development Authority (YEIDA), and the said acquisition was challenged by landowners in Allahabad High Court. Further, the National Green Tribunal had prohibited the use of groundwater for construction purpose. Also, the supply of raw material and labour was disrupted due to strikes/agitation by the farmers whose land was acquired.

The Commission noted that the aforestated contentions had already been considered and rejected by it in its order dated 16-04-2019 in STUC Awasiya Grahak Kalyaan Association v. Supertech Ltd. (CC No. 2335 of 2017). In that case, this Commission had clearly held that it was for the OP to arrange water for construction purposes from alternative sources. Further, the land acquisition challenge had been decided by Allahabad High Court in October, 2011 itself and while the Supreme Court did uphold the said High Court’s judgment in appeal, no order was passed restraining builders (particularly the builders in YEIDA) from raising construction on the land. Moreover, the agreements with the complainant had been executed much later than the Allahabad High Court’s decision. Lastly, no direct evidence had been led by the OP to prove the dates on which farmers had actually prevented the construction work.

It was noted that the completed drawings were submitted by the OP on 15-02-2015 itself, which meant that the construction had been completed by that date but the requisite Completion Certificate/Occupancy Certificate had still not been issued.

Reliance was placed on the judgment in Pioneer Urban Land & Infrastructure Ltd. v. Govindan Raghavan, 2019 SCC OnLine SC 458 where it was held that complainants cannot be made to suffer and wait indefinitely for possession of the flat allotted to him, and is entitled to seek refund of the amount paid by him, along with compensation.

In view of the above, the complaint was allowed and OP was directed to refund the entire amount received from complainant, and also compensate them in the form of simple interest of 10 percent per annum from the date of each payment to the date of refund. OP was also directed to pay litigation costs of Rs 25,000 to the complainant.[Ajai Kumar v. Supertech Ltd., 2019 SCC OnLine NCDRC 63, Order dated 22-04-2019]

Patna High Court
Case BriefsHigh Courts

Patna High Court: The Division Bench of Amreshwar Pratap Sahi and Anjana Mishra, JJ. rejected a petition assailing the order delivered by Central Administrative Tribunal, on the ground of inordinate delay in filing the petition.

In the instant case, an employee had died in harness in the year 1992. The matter for compassionate appointment in place of the deceased employee was taken up by the Central Administrative Tribunal where it was, ultimately, disposed of in 2008. The instant petition was filed challenging the order of the said Tribunal.

The Court noted that the present petition had been filed after an inordinate delay of almost ten years and the explanation sought to be given for the delay did not appear to be convincing. It was opined that the petition was heavily barred by laches, more so, as the subject matter related to that of compassionate appointment.

In view of the above, the Court declined to interfere on the ground of laches. [Ravi Shankar Kumar v. Union of India, 2019 SCC OnLine Pat 255, Order dated 27-02-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Information Commission: In a recent case before CIC, appellant pleaded that he had received the information after issue of notice of the hearing from the CPIO of the department  concerned and requested for award of compensation on account of the disadvantage suffered by him due to the unjustifiable delay of more than 2 years in providing him the information sought for.

He told the Commission that he had sought the information with regard to a civil case and due to the delay, the information had now become redundant. The appellant said he feels harassed waiting for the information all this while. On the other hand, the CPIO submitted that her predecessor retired in January 2016, and she assumed office only in February 2016.

On hearing both the parties, the Commission decided to take grave exception to the flagrant violation of the RTI Act by the CPIOs of Cantonment Board, Jabalpur and also of the ignorance of the present CPIO regarding the pending RTI applications from the tenure of her predecessor. Commissioner Divya Prakash Sinha observed that it is incumbent upon the present CPIO to deal with all such pending RTI applications and not wait for the Commission to issue notice of hearing to provide reply to RTI applicants.

Most importantly, the Commission directed the public authority through its Chief Executive Officer to compensate the appellant by an amount of Rs. 5000 for the inconvenience and detriment caused to him and disposed the appeal accordingly. [Aabid Hussain v. CPIO, Cantonment Board, Jabalpur, 2017 SCC OnLine CIC 1506, decided on 16.10.2017]

Punjab and Haryana High Court
Case BriefsHigh Courts

Punjab and Haryana High Court: While deciding the case of detainment of imported goods of petitioner for the inordinate period by Directorate of Revenue Intelligence (DRI) or the customs authorities, the Bench of Rajesh Bindal and Harinder Singh Sidhu, JJ, said that the importing company cannot be burdened to incur unnecessary detention and demurrage charges if the delay is condoned by the Port Authority.

The imported goods of petitioner was detained by the Authorities and DRI also requested Commissioner of Customs (Import), Mumbai, for putting on hold the imported consignment of the petitioner as well as five other importers based in Ludhiana till the time they do not obtain the NOC from the said Authority. Even the good imported by the petitioner were not of prohibited nature. The petitioner made several requests to the Authorities that the goods are incurring detention and demurrage charges but he was left unheard by the authorities, so he approached the  High Court.

In the light of given facts and conditions the Court ordered the DRI and Custom Authority that the petitoner should not be held liable for the delay which was condoned by the Authority and thereby the Court also said that the Authorities will be liable to bear the cost of inordinate delay. [Shri Lakshmi Steels v. Union of India, 2016 SCC OnLine P&H 12111), decided on December 23, 2016]