Case BriefsHigh Courts

Orissa High Court: A Division Bench of S. Panda, ACJ and S.K. Sahoo, J.  did not entertain the writ petition because the petitioners had suppressed material facts and approached the court with unclean hands.

In the present case, the petitioners are the representatives of the villagers of Matha Sahi who have applied for grant of license to open a new IMFL ‘ON’ liquor shop at Hotel Florence under Bhadrak Municipality. On enquiry by Inspector of Excise, Bhadrak Range revealed that the proposed building for the liquor shop violates Rule 26 of the Odisha Excise Rules, 2017 and is at a distance of 103 mtrs. away from Dream India School, 330 mtrs. from Presidency College, 380 mtrs. from State Highway, 550 mtrs. from National Highway and 514 mtrs. of NH service lane. The violation was subject to relaxation by the State Government under Special Circumstances. The Collector, Bhadrak invited objection from the public and after inquiring the objections, the Inspector reported that Saraswati Sishu Mandir is at the back side of the proposed shop and such shop had been constructed as per planning with approval of Town Planning Authorities as some local people demanded opening of the proposed shop.

Hence a writ petition was filed under Article 226 of the Constitution to direct the opposite parties to cancel the license granted in favor of OP-5.

In the face of protests by the people at large, the Inquiring Inspector submitted the opinion of two persons demanding opening of proposed shop reveals the malafide intention and the Government still chose to grant license to open the liquor shop at the objectionable site. 

The opposite party averred through counter affidavit that the petitioners have no cause of action to file the writ application and they have no locus standi to file the writ application and they are not residents of the ward where the ‘ON’ shop is functioning. It was further stated that the petitioners have not approached the Court with clean hands and as such, the writ application is liable to be dismissed. 

It was further stated that the Collector, Bhadrak after receiving all objections pursuant to Form-VIII notice, submitted the entire papers to the Commissioner of Excise for onward recommendation to the Government for grant of license and the Collector, Bhadrak has suggested relaxation of the restrictions in exercise of power conferred under Rule-26 of the Odisha Excise Rules, 2017. The Superintendent of Excise, Bhadrak filed a counter-affidavit on behalf of OPs- 1, 2 and 3 wherein it stated that the Government after considering the objection petitions have relaxed the restrictions mentioned in Rule 26(1) of Odisha Excise Rules, 2017.

It was further stated that the school building of Saraswati Sishu Vidya Mandir is under construction and is non-functional presently and has no direct connection to the proposed ‘ON’ shop. 

The Court held that IMFL ‘ON’ shop of the is functioning after obtaining necessary permission from the Government and the petitioners-institution has not yet been made functional and the petitioner has suppressed material facts and hence it is not inclined to entertain the writ petition.

In view of the above, the writ petition stand dismissed.[M.M. Saraswati Sishu Vidya Mandir v. State of Odisha, 2020 SCC OnLine Ori 56, decided on 24-02-2020]

Case BriefsHigh Courts

Allahabad High Court: A Division Bench of Pankaj Kumar Jaiswal and Jaspreet Singh, JJ. dismissed the special appeal as it had no merit after having heard the Counsel for the appellants, Prem Shanker Pandey and Q.H. Rizvi, Addl. Chief Standing Counsel for the Respondent.

In the instant case, three people Paramjeet Singh, Jagjeet Singh and Baj Singh took a loan from Union Bank of India, for purchase of a truck. The Bank authorities sanctioned the loan on the security of 2/3rd land given by Paramjeet Singh and Jagjeet Singh. Baj Singh had mortgaged 1/4th share of another piece of land. When they could not repay the loan, a recovery certificate was issued by the Bank and thereafter an auction was held by the Naib Tehsildar. The land was auctioned to Major Singh. The land was again going to be re-auctioned. Therefore, Major Singh challenged the aforesaid re-auction by filing a writ petition which was later dismissed.

The second auction took place and yet again Major Singh became the highest bidder and the land was confirmed in his favour. Thereafter, Paramjeet Singh and Jagjeet Singh filed a Writ Petition thereby an order of the Court was passed. The Court observed that if the writ petitioners deposit 25% of the outstanding amount within one month from the date of the order, their property would not be attached and put to auction and if auctioned, the same will not be confirmed and the same may be kept in abeyance. Further to this, a review was filed by Major Singh which was entertained and the aforesaid order was modified as the material facts that land in question was already sold or auctioned were concealed to get such an order at the first place.

The Court rejected the recall application against the above order filed by the appellants. The sale was confirmed in favour of Major Singh on the basis of an order passed by this Court giving due consideration as to the fact that the appellants had obtained an order by concealing the material facts that land in question was already sold/auctioned.[Paramjeet Singh v. State of U.P., 2019 SCC OnLine All 3145, decided on 29-08-2019]

Case BriefsForeign Courts

Pakistan Supreme Court:  A Full Bench of Asif Saeed Khan Khosa, CJ, Mushir Alam and Syed Mansoor Ali Shah, JJ. extended benefit of doubt to the appellant herein and set aside his conviction and sentence under Section 9(c) of Control of Narcotic Substances Act, 1997.

In the present case, 1500 grams of heroin was found under the car seat of Suzuki van of the appellant. After a regular trial, the appellant was convicted. The appeal filed in the High Court was dismissed. Afterwards, the appeal with the leave of the Supreme Court was granted.

It was noted by the Court that the report of Punjab Forensic Agency was deficient in material facts. While it mentioned the names of the three tests performed, it did not provide results of these tests. Also, there was no mention of the protocol taken while conducting the test.

Referring to State v. Imam Bakhsh, 2018 SCMR 2039 while discussing Rule 6 of the Act, it was noted that the Report of Government Analyst, prepared in consequence of Rule 6, must provide for (i) tests and analysis of the alleged drug (ii) the results of the test(s) carried out and (iii) the test protocols applied to carry out these tests. Not abiding by the said rules reduced the reliability and evidentiary value of the report.

It was opined that credible testing and analysis of the alleged drug was fundamental to actualizing the provisions of the Act as it determined the true nature of the seized drug, and thus it was mandatory. The report of the Forensic Agency, if admitted in evidence without formal proof, could be rebutted and questioned by the accused on the ground of non-compliance of the above information required under Rule 6. Also, the report did not specify the protocols applied. Hence the mandatory requirements were not fulfilled and it would have been unsafe to rely on the report of Forensic Agency. Retesting of the drugs would amount to giving a premium to the prosecution for its mistakes and lapses.

Thus, the Court extended benefit of doubt to the appellant in the absence of a proper report and set aside his conviction order with the direction that he be released from custody.[Khair-ul-Bashar v. State, 2019 SCC OnLine Pak SC 8, decided on 08-04-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Company Law Tribunal, Mumbai: The Bench of V.P. Singh, Member (Judicial) and Ravikumar Duraisami, Member (Technical) ordered for prosecution to be lodged against the Corporate Debtor / Corporate Applicant on the ground that it suppressed material information while filing a petition under Section 10 of the Insolvency and Bankruptcy Code, 2016  for initiating corporate insolvency resolution process.

The matter had reached upto the stage of the Resolution Professional filing the application for approval of the Resolution Plan by NCLT. During arguments, one of the Financial Creditors, IDBI Bank, brought to NCLT’s notice that the Bombay High Court had already ordered winding-up of the Corporate Debtor and this material fact was suppressed while filing the petition under Section 10.

Extensive arguments were made by both the sides and reliance was placed on various Supreme Court decisions. S. Purohit, Advocate appeared for the Corporate Debtor. On the other hand, Advocates Shavey Mukri along with Nishitha Manbiar  and Almira Lasrado of IndiaLaw represented IDBI Bank; Advocates Ashish and Priyanak Upadhyaya of Ethos Legal Alliance represented SBI Global Factors (P) Ltd.; Advocate Sugatya Chaudhary represented Axis Bank; Nikhil Rajani and Jyoti of V. Deshpande & Co. along with Naman Awasthi, Authorised Signatory represented Edelweiss ARC; Advocates Bhupesh V. Samant and Ganesh Kale represented Saraswat Coop. Bank; Sushmita Gandhi and Anamika of HSA Advocates represented ICICI Bank (all creditors). Another creditor, Ramkumar Birendrakumar (P) Ltd. was represented by Counsel Subir Kumar and Priyanka Sinha of A&P Partners.

The question before NCLT was whether disclosure of the Bombay High Court’s order was material for applying under Section 10 for initiation of corporate insolvency resolution process?

NCLT noted that the Corporate Debtor was fully aware that the company stood wound up by the order of the High Court. According to NCLT, this fact was without an iota of doubt, a material fact for presenting a petition under Section 10. Further, relying on Forech (India) (P) Ltd. v. Edelweiss ARC, 2019 SCC OnLine SC 87, NCLT observed that a Corporate Debtor is barred from filing a Section 10 petition after passing of liquidation orders in winding-up proceedings. The act of the Corporate Debtor in suppressing the information known to it to be material for filing Section 10 petition was held to be punishable under Section 77(a) IBC. Accordingly, the Registrar of Companies, Mumbai was directed to lodge prosecution against the Corporate Debtor under Section 77(a). Furthermore, cost of Rs 10 lakhs was imposed on Corporate Debtor and the petition was dismissed. [Amar Remedies Ltd., In re, 2019 SCC OnLine NCLT 1, Order dated 29-01-2019]

Case BriefsHigh Courts

Karnataka High Court: While deciding a writ petition filed under Articles 226 and 227 of the Constitution, a Single Judge Bench of Raghvendra S. Chauhan, J. dismissed the petition holding that there is a difference between ‘material facts’ and ‘particulars’ and it was sufficient if the respondent proved the material facts.

The petitioner challenged the order of the Senior Civil Judge whereby he allowed the Election Petition filed by Respondent 1. The dispute related to the election to the post of President of the Gram Panchayat. Initially, the petitioner was elected to the said post, however, respondent 1 challenged the said election and consequently, the Election Tribunal set aside the election of the petitioner to the said post.

The petitioner submitted that while filing the election petition, respondent 1 was required to prove his submission through material facts. However, Respondent 1 had not mentioned all the material facts in the petition. There was no mention of the placement and type of marks alleged to be marked on the ballot papers.

The High Court referred to a few decisions of the Supreme Court and observed that there is a difference between ‘material facts’ and ‘particulars’. ‘Material facts’ are the primary basic facts which must be pleaded by the plaintiff to prove his cause of action. ‘Particulars’ on the other hand, are the details in support of the material facts pleaded by the parties. In the instant case, Respondent 1 as the plaintiff clearly pleaded the material fact that there were extra marks on the ballot papers. And the particulars regarding the type and placing of marks, even if not pleaded, would not undermine the validity and veracity of the election petition.

The High Court found no irregularity in the impugned order and accordingly dismissed the petition. [H.B. Shamithkumar v. A.M. Somanna, 2017 SCC OnLine Kar 3020, order dated 16.10.2017]

Case BriefsSupreme Court

Supreme Court: Dealing with the appeal by Navjot Singh Sidhu, the returned candidate in the election held on 13th May, 2009 for the 02-Amritsar Parliamentary Constituency, where he had argued that there was no ground to proceed with the trial against him as no triable issue has been disclosed in the election petition, the Bench of Ranjan Gogoi and Abhay Manohar Sapre, JJ partly allowed the appeal and directed that the trial should recommence in respect of the allegations relating to election expenses incurred by the appellant on account of campaign through electronic/print media.

Explaining the law, the Court said that in case of an Election Petition founded on allegations of corrupt practice not only the ‘material facts’ have to be pleaded but even the full particulars thereof have to be furnished at the stage of filing of the Election Petition itself. This is specifically provided for in Section 83(1)(b) of the R.P. Act. In the present case, it was noticed that the dates on which the advertisements had appeared; the particulars of the newspapers in which such advertisements were published; the cost incurred for each type of advertisement in each newspaper, have all been mentioned by the election petitioner. The Court, hence, held that when details to the above extent have been mentioned in the Election Petition, it cannot be said that full particulars as required under Section 83(1)(b) of the R.P. Act have not been furnished by the election petitioner.

Regarding the contention of the election petitioner that the expenses incurred on these public meetings is much more than what has been shown in the return of election expenses under the said head (Rs.1,83,466/-), the Court said that while the details of the meetings i.e. the time, date and venue are mentioned and so is the number of persons who are claimed to have attended the meetings, there is no basis as to how the election petitioner had arrived at the quantum of expenses which he alleges to have been incurred by the returned candidate in holding each of the said meetings. What are the source(s) of information of the election petitioner with regard to the details furnished; whether he has personal knowledge of any of the said meetings; who are the persons who informed him of the details of such meetings; what is the basis of the estimate of the number of persons present and the facilities (chairs etc.) that were hired and the particulars of the refreshments served are nowhere pleaded. All such particulars that are an integral part of the allegation of corrupt practice alleged are absent. Hence, the Court said that the allegation of commission of corrupt practice of submission of false/incorrect return of election expenses is struck off. [Navjot Singh Sidhu v. Om Prakash Soni, 2016 SCC OnLine SC 1204, decided on 26.10.2016]