Experts CornerGaurav Pingle and Associates

Introduction

Meetings have a very important role to play in the functioning of company where decisions are taken and recorded. In case of companies, whether Board meetings or shareholders’ meetings, there is an exchange of idea, proposal, problems and decision on the further of action. In case of companies, a meeting of members, directors, debenture holders, class shareholders, creditors can be called and conducted. This article is a checklist for preparation and sending of the notice of shareholders’ meeting by a private company or unlisted public company under Sections 101 and 102 of the Act read with the Rules.

  1. Applicability of Provisions.—The said provisions are applicable to annual general meeting or extraordinary general meeting of the members of private company or unlisted public company. A listed company shall also comply with the provisions of the Act and Securities and Exchange Board of India (SEBI) (Issue of Capital and Disclosure Requirements) Regulations, 2018.
  2. Contents of the Notice of Meeting.—Every notice of a general meeting shall specify the place, date, day and the hour of the meeting and shall contain a statement of the business to be transacted at such meeting. The statement of business includes the resolutions that are proposed for the voting of the shareholders of the company. Ordinary business (as referred to in Section 102 of the Act) means: (i) consideration of financial statements and the reports of the Board of Directors and auditors; (ii) declaration of any dividend; (iii) appointment of Directors in place of those retiring; and (iv) appointment of, and the fixing of the remuneration of, the auditors. Any other business shall be considered as “special business”. Necessary reference of type of business (ordinary or special) and type of resolution (ordinary or special) shall be given in the notice of the general meeting.
  3. Contents of the Notice of General Meeting through Videoconferencing (VC).—Ministry of Corporate Affairs has allowed companies to hold the general meeting through VC or other audio-visual means (OAVM). In addition to any other requirement provided in the Act or the Rules, the notice for the general meeting shall make disclosures with regard to the manner in which framework provided in the MCA Circular (i.e. General Circular No. 14/2020 [F. No. 2/1/2020-CL-V] dated 8-4-2020) shall be available for use by the members and also contain clear instructions on how to access and participate in the meeting. The company shall also provide a helpline number through the registrar and transfer agent, technology provider, or otherwise, for those shareholders who need assistance with using the technology before or during the meeting. A copy of the meeting notice shall also be prominently displayed on the website of the company and due intimation may be made to the exchanges in case of a listed company.
  4. Explanatory Statement.—A statement setting out the material facts concerning each item of “special business” to be transacted at a general meeting, shall be annexed to the notice calling such meeting. The statement shall set out the nature of concern or interest, financial or otherwise, if any, in respect of each item of every director, key managerial personnel, manager and their relatives. The explanatory statement shall also include information and facts that may enable members to understand the meaning, scope and implications of the items of business and to take decision thereon.
  5. Length of Notice of Meeting.—A general meeting of a company may be called by giving not less than clear 21 days’ notice. In case of private company, the articles of association may provide for a shorter period for the length of notice of general meeting. In case of companies incorporated under Section 8 of the Act, a general meeting of a company may be called by giving not less than clear 14 days’ notice.
  6. Mode of Sending Notice of General Meeting.—The notice of general meeting can be given either in writing or through electronic mode in such manner as may be prescribed.
  7. Sending of Notice through Electronic Mode.—Rule 18 of the Companies (Management and Administration) Rules, 2014 prescribes detailed procedure for sending notice in electronic mode[1]. A notice may be sent through e-mail as a text or as an attachment to e-mail or as a notification providing electronic link or uniform resource locator (URL) for accessing such notice. The e-mail shall be addressed to the person entitled to receive such e-mail as per the records of the company or as provided by the depository. The subject line in e-mail shall state the name of the company, notice of the type of meeting, place and the date on which the meeting is scheduled. If notice is sent in the form of a non-editable attachment to e-mail, such attachment shall be in. PDF or in a non-editable format together with a “link or instructions” for recipient for downloading relevant version of the software. The company should ensure that it uses a system which produces confirmation of the total number of recipients e-mailed and a record of each recipient to whom the notice has been sent and copy of such record and any notices of any failed transmissions and subsequent resending shall be retained by or on behalf of the company as “proof of sending”. The company’s obligation shall be satisfied when it transmits the e-mail and the company shall not be held responsible for a failure in transmission beyond its control. The company may send e-mail through in-house facility or its registrar and transfer agent or authorise any third-party agency providing bulk e-mail facility. The notice of the general meeting of the company shall be simultaneously placed on the website of the company, if any, and on the website as may be notified by the Central Government.
  8. Opportunity for E-mail Address Registration.—The company shall provide an advance opportunity at least once in a financial year, to the member to register his e-mail address and changes therein. Such request may be made by only those members who have not got their e-mail id recorded or to update a fresh e-mail id and not from the members whose e-mail ids are already registered. If a member entitled to receive notice fails to provide or update relevant e-mail address to the company, or to the depository participant as the case may be, the company shall not be in default for not delivering notice via e-mail.
  9. Shorter Notice Consent for Shareholders Meeting.—A general meeting may be called after giving shorter notice than clear 21 days’ notice (or any other period as mentioned in the articles of association of the company), if consent, in writing or by electronic mode, is accorded thereto:

(i) In Case of an Annual General Meeting (Company with Share Capital or without Share Capital).—By not less than 95% of the members entitled to vote thereat.

(ii) In the Case of Extraordinary General Meeting (for Company with Share Capital).—By members of the company holding majority in number of members entitled to vote and who represent not less than 95% of such part of the paid-up share capital of the company as gives a right to vote at the meeting.

(iii) In the Case of Extraordinary General Meeting (for Company without Share Capital).—By members of the company having, if the company has no share capital, not less than 95% of the total voting power exercisable at that meeting.

  1. Recipients of Notice of Shareholders’ Meeting.—The notice of every meeting of the company shall be given to: (a) every member of the company, legal representative of any deceased member or the assignee of an insolvent member; (b) auditor(s) of the company; and (c) every director of the company.
  2. Accidental Omission to Give Notice of General Meeting.—Any accidental omission to give notice to, or the non-receipt of such notice by, any member or other person who is entitled to such notice for any meeting shall not invalidate the proceedings of the meeting.

*Gaurav N Pingle, Practising Company Secretary, Pune. He can be reached at gp@csgauravpingle.com

[1] Here, “electronic mode” means any communication sent by a company through its authorised and secured computer program which is capable of producing confirmation and keeping record of such communication addressed to the person entitled to receive such communication at the last electronic mail address provided by the member.

Op EdsOP. ED.

This article concerns with a recurrent issue that arises from an ever-widening relationship of landlord-tenant. There can be no hesitation mentioning that almost all the societies have witnessed conflicts when it comes to determination of tenancy and thus, regulate the same. In India, Part V of the Transfer of Property Act, 1882, (hereinafter referred to as “the Act” or “TPA”) governs such a relationship entered into through a lease. A perplexing question that needs discussion here pertains to procedural requirement of “giving a notice” under Sections 106 and 111(g) of the Act, by the landlord, of his intention to determine the jural relationship of tenancy before filing a suit for eviction under the various State Rent Acts. The issue within this is not regarding what amounts to “giving of a notice” or whether a notice given in a certain way fulfils all requirements to be a valid notice. The controversy centres on whether such a notice is at all necessary to be given. The major takeaway for the readers would be knowledge of confined situations where notice is required to be served by the landlord and consequently, would reduce the confusion regarding the same. Before moving on to the question on hand it becomes pertinent to shed some light on the concept and scope of the aforesaid provisions.

Ordinarily, a contract between the parties would regulate all the relevant terms including the duration of the subsistence of tenancy, however, there might be a case where the contract mentions no date of termination of such relation. On a plain reading of Section 106, it is clear that the legislature has classified the leases into two categories and according to their purposes this provision would be attracted to construe the duration of the lease and accordingly duration of notice to be served in absence of a contract or local usage to the contrary[1]. This implies that this section is applicable only in the absence of contract as to the duration of lease. Also, it is open to the parties to contract themselves out of the provision and to make a valid contract between themselves as regards duration of their lease and the manner of termination of the same. It is obvious that the lease of tenancy, mostly, if not always, would be covered by the mandate of giving 15 days’ notice to the tenant. Even the length of the notice or the calendar for computation of the period can be subject to contract between the parties[2].

The other indispensable requirement of giving notice is rooted under Section 111(g) of the Act. The sub-section deals with the subject known as forfeiture of leases. Forfeiture ordinarily implies a penalty for an offence or unlawful act or for some wilful omission of a tenant of property whereby he loses it, together with his title, which devolves upon others[3]. To constitute forfeiture in a matter, there must be a breach of an express condition of the lease which provides for the landlord’s re-entry to the premises.

The question that stares us at this stage is whether both the notices under the impugned sections technically are identical to each other. To start with, a bare reading of Section 111(g) shows that it is nowhere mentioned as to the nature and time period of the notice that needs to be given is identical to that of Section 106. Clearly, Section 106 of the Act was incorporated as an equitable provision so that a tenant may not be taken by surprise. The rationale behind such a mandate could be intimating the intention of landlord so that the tenant could arrange for himself another roof. It seems to be in the interests of hapless tenants who are without just cause thrown out of the premises at the mercy of the landlord. On the other hand, the latter’s purpose apparently is not the one as of the former and is not based on the principles of justice, equity or good conscience[4]. It cannot be said to be guided by reason and equity as the tenant after liability has been incurred cannot be given benefit of his own wrong. Therefore, notice under the latter sub-section is not the one to be given under Section 106 of the Act. However, at most, it can be said that the similarities that can be drawn in both the notices are with respect to the procedural formalities but not the technical ones.

This brings us to the real question of this article as to whether the “giving of notice” as contemplated by the Act is a prerequisite condition that needs to be adhered to prior to filing of a suit of eviction against tenant under the State Rent Acts.

Here, it becomes imperative to appreciate the fact that the State List[5] of the Constitution of India prescribes the State Governments to regulate rights in or over land, land tenures including the relation of landlord and tenant, and the collection of rents. Resultantly, almost all the States have enacted their law governing determination of tenancy. The controversy now is limited to whether the provisions of the relevant State Rent Act was in addition to the provision of the TPA or was in derogation thereof. In other words, whether it would supplement or supplant the same. The Rent Acts  passed in different States were intended to prevent indiscriminate eviction of tenants and were intended to be a protective statute to safeguard the security of possession of the tenants and therefore, should be construed in the light of it being a social legislation[6].

As far as the answer to the present question is concerned it can be said that there were mixed and inconsistent views iterated by the Supreme Court and various High Courts in catena of judgments. A few of the judgments deserves to be highlighted herein. The Supreme Court in Manujendra Dutt v. Purendu Prosad Roy Chowdhury[7], while deciding requirement of notice in both the sections to be sine qua non before filing suit for eviction under the State rent provisions, has remarked that:

5. … Rent Acts are not ordinarily intended to interfere with contractual leases and are Acts for the protection of tenants and are consequently restrictive and not enabling, conferring no new rights of action but restricting the existing rights either under the contract or under the general law.

In addition to the above case, the Supreme Court while referring to its judgment in Namdeo Lokman Lodhi v. Narmadabai[8], has held that giving notice under Section 106 is a principle of equity and hence mandatory but laid down contrary with respect to Section 111(g). It observed that:

26. … The irrelevance of the English Law as such to notions of good conscience in India notwithstanding, we agree that a written notice is no part of equity. The essential principles, not the technical rules, of the TP Act form part of justice, equity and good conscience. The conclusion emerges that the landlord’s termination of the tenancy in this case is good even without a written notice.[9]

Either of the above view was adopted by the Supreme Court of India in many more pronouncements until the landmark judgment[10] by a seven-Judge Bench of the Court. The ruling marked the end of all the chaos and confusing and thus overruled all the previous conflicting views. Moreover, it emphasised the need to have a uniform law in all the States despite having some difference in phraseology of relevant provisions in the State laws.

The Court pointed out with no hesitation that notice under both the sections is different kind of intimation. As far as Section 106 is concerned it brushed aside the previous position of law and stated that when under the various State Rent Acts, either in one language or the other, it has been provided that a tenant can be evicted on the grounds mentioned in certain sections of the said Acts, then how does the question of determination of a tenancy by notice arise? If the State Rent Act requires the giving of a particular type of notice in order to get a particular kind of relief, such a notice will have to be given. It further observed that:

11. … It is true that the Rent Act is intended to restrict the rights which the landlord possessed either for charging excessive rents or for evicting tenants. But if within the ambit of those restricted rights he makes out his case it is a mere empty formality to ask him to determine the contractual tenancy before institution of a suit for eviction[11].

Thus, the action of the landlord in instituting a suit for eviction on the ground mentioned in any State Rent Act will tantamount to an expression of his intention that he does not want the tenant to continue as his lessee and the legal relationship of lessor and lessee will come to an end on the passing of an order or a decree for eviction. Until then, under the extended definition of the word “tenant” under the various State Rent Acts, the tenant continues to be a tenant even though the contractual tenancy has been determined by giving of a valid notice under Section 106 of the TPA.

On the other hand, the Court while considering the requirement under Section 111(g) obliterated the difference between “contractual tenantandstatutory tenant. It observed that where any tenant has violated any term of the contract and the landlord having served the notice determines the contractual lease under Section 111(g) of the Act, nevertheless, he would be provided with the protection under various State Acts as statutory tenant and can only be evicted after obtaining an order or decree to that effect. Stating it in words of the Bench:

16. … Why this dual requirement? Even if the lease is determined by forfeiture under the Transfer of Property Act the tenant continues to be a tenant, that is to say, there is no forfeiture in the eye of the law. The tenant becomes liable to be evicted and forfeiture comes into play only if he has incurred the liability to be evicted under the State Rent Act, not otherwise. In many State statutes different provisions have been made as to the grounds on which a tenant can be evicted and in relation to his incurring the liability to be so evicted. Some provisions overlap those of the Transfer of Property Act. Some are new which are mostly in favour of the tenants but some are in favour of the landlord also.[12]

Therefore, it can be aptly concluded that determination of a lease in accordance with the TPA is unnecessary and a mere surplusage because the landlord cannot get eviction of the tenant even after such determination. The tenant continues to be so even thereafter.

Thereafter, this position of law has been followed in a plethora of judgments by the Supreme Court. In Shakuntala S. Tiwari v. Hem Chand M. Singhania[13], the Court held that it is an act in law and not an act of law because under the scheme a determination of tenancy which takes place under the TPA, according to the appellant, is wholly irrelevant for founding a cause of action in ejectment because the provisions of the TPA are superseded by the provisions of the Rent Act. Interestingly, the Court has broadened its sweep to the extent saying that Section 111(g) in such situations be treated as inoperative and deemed to be repealed[14].

Conclusion

On a careful consideration of all the material referred to, it can be aptly remarked that requirement of giving a notice to the tenant under Sections 106 and 111(g) in a case of filing an eviction petition under the respective State rent legislations is not based on rule of equity and reason. Hence, it is an additional technical formality, absence of which ensue no legal consequences and cannot be insisted upon the landlord. But does that mean that the impugned provisions have no role to play in shaping the rent control jurisprudence? The answer cannot be in affirmative. The two provisions would still operate in a larger field of regulating other leases of immovable property other than tenancy. Also, it cannot be said that both of them are in nullity when we talk about regulation of landlord-tenant relationship. The judgment of the Supreme Court in Nopany Investments (P) Ltd. v. Santokh Singh (HUF)[15] can be interpreted to the extent that giving a notice under Section 106 of the Act is not a requirement even when filing a suit in general law. However this does not seem to be the correct proposition of law laid down in Yesodai Ammal case[16] as these provisions of the Act would apply in absence of Rent Act in the State concerned and where the landlord presses a ground which does not find mention in the State Act but in general law[17]. In furtherance to this, there can be another situation which is a necessary corollary to the intent of State Legislatures i.e. where the State rent law itself expressly or by necessary implication entails to give a notice in accordance with the terms of Section 106.

Ergo, the requirement of giving a notice can be summed up in the following categories as noted hereinbelow:

  1. Where the rent agreement speaks for giving notice in a manner which is not inconsistent with the statute in force of that State or the general law (in case no State Act exists) as the case maybe, then that specific clause of the agreement shall prevail.
  2. Where no clause for giving notice is provided in the agreement or if provided is inconsistent with the State law or Central law (in case of absence of State law), then:

(a) Where that particular State has not enacted its rent statute, then the terms provided under TPA shall apply and would become a mandate.

(b) Where a particular State has enacted its rent statute but does not provide any provision regarding giving of notice, then no notice need to be served before filing a petition for eviction and tenancy shall only be terminated once a decree is granted by the proper rent court.

(c) Where the State rent statute itself expressly or by necessary implication entails to give a notice in accordance with the terms of Section 106 of TPA.

(d) Where the landlord presses a ground which does not find mention in the relevant State Rent Act in a particular State of India but in TPA, then terms of TPA shall be complied with.


*Final Year Student of BA LLB (Hons.), University School of Law & Legal Studies, GGSIPU.

[1] Samir Mukherjee v. Davinder K. Bajaj, (2001) 5 SCC 259 

[2] Harbhajan Singh v. P.N. Chopra, 1976 SCC OnLine Del 174

[3] Wharton’s Law Lexicon, see also Sunil Kumar Modi v. Munna Lal Gupta, 2007 SCC OnLine All 899

[4] Rattan Lal v. Vardesh Chander, (1976) 2 SCC 103; see also, Namdeo Lokman Lodhi v. Narmadabai,  1953 SCR 1009

[5] Sch. VII, List II, Entry 18,  Constitution of India

[6] Manujendra Dutt v. Purendu Prosad Roy Chowdhury, (1967) 1 SCR 475

[7] Ibid

[8] 1953 SCR 1009

[9] Rattan Lal v. Vardesh Chander, (1976) 2 SCC 103, 117

[10] V. Dhanapal Chettiar v. Yesodai Ammal, (1979) 4 SCC 214

[11] Id. at p. 22

[12] V. Dhanapal Chettiar v. Yesodai Ammal, (1979) 4 SCC 214, at p. 227

[13] (1987) 3 SCC 211

[14] Palani Ammal v. Viswanatha Chettiar, (1998) 3 SCC 654

[15] (2008) 2 SCC 728

[16] (1979) 4 SCC 214

[17] Biswanath Agarwalla v. Sabitri Bera, (2009) 15 SCC 693

COVID 19Hot Off The PressNews

The National Human Rights Commission has taken suo motu cognizance of media reports that fifty-seven minor girls have tested positive for the novel coronavirus at a state-run children’s Shelter Home in Kanpur district of Uttar Pradesh. Five of them have been found pregnant and one HIV positive. Reportedly, the girls were exhibiting symptoms of COVID 19 for some time but there was delay in taking them to the hospital for tests.

The Commission has observed that the contents of the media report, if true, are enough to prima facie believe that the public servants have failed to provide safeguard to the victim girls and, apparently, were negligent in protecting their right to life, liberty and dignity in the custody of the State .

Accordingly, it has issued a notice to the Chief Secretary, Government of Uttar Pradesh calling for a detailed report in the matter including health status of all the girls, their medical treatment and counselling provided to the girls by the authorities. The State Government is expected to order an inquiry into the matter from an independent agency. It is also expected to review health status of the female inmates lodged in shelter homes, across the State and issue suitable directives that such incidents do not recur in future.

A notice has also been issued to the Director General of Police, Uttar Pradesh calling for a report regarding registration of FIR in this matter and status of investigation. The response is expected within 4 weeks from both the authorities.

According to the media reports, the girls at the shelter home had been exhibiting Covid-19 symptoms for a few days, and the local administration had informed the State health department about it only last Friday on 19th June,2020.

Reportedly, the Kanpur District Magistrate has said that there were seven pregnant girls living in the home, and five of them tested positive for Covid-19. He has said that these girls were already pregnant when they were brought to the shelter home on the recommendation of the Child Welfare committees in different districts, and investigation under the Protection of Children from Sexual Offences Act is going on in all these cases.

The Senior Superintendent of Police, Kanpur has reportedly stated that two of the girls had come from Agra and Kannauj in December 2019. The SSP said all the girls found Covid-positive are being treated at the Kanpur Medical College. The shelter home has been sealed, and its staff quarantined.


NHRC

[Press Release dt. 22-06-2020]

Case BriefsCOVID 19High Courts

Madras High Court: A Division Bench of R. Subbiah and R. Pongiappan, JJ. issued notice to T.N. Government to reply on the plea for declaring special holidays for certain industrial establishments.

Present petition was filed with the aim to seek direction to respondents 1 and 2 to pass orders notifying the period of lockdown from 24-03-2020 to 14-04-2020 as special holidays for industrial establishments, excluding establishments which were allowed to function, in terms of powers vested under Section 3(2) of Tamil Nadu (National, Festival and Special Holidays) Act.

Notice for respondents with regard to the above was taken by Additional Advocate General, S.R. Rajagopal assisted by Government Pleader V. Jayaprakash Narayanan and Special Government Pleader, E. Balamurugan.

Affidavit for the said to  be filed on 20-04-2020. [S. Ravindran v. Chief Secretary, Government of T.N.,  2020 SCC OnLine Mad 936, decided on 16-04-2020]

Case BriefsHigh Courts

Allahabad High Court: Dr Y.K. Srivastava, J. while dismissing the petition observed that the assertion made by the petitioner that the proceedings were without notice or opportunity to him is contrary to the material on record.

In the instant petition, it was sought to challenge an order of the Additional Collector (Land Revenue) in proceedings under Section 28 of the U.P. Land Revenue Act, 1901 and challenge the order of the Additional Commissioner (1st) whereby the revision was also rejected for the same.

Counsel for the petitioner, Rajesh Kushwaha submitted that powers under Section 28 of the 1901 Act are to be exercised by the Collector and that the impugned order was passed in violation of the principles of natural justice.

Counsel for the fourth respondent, R.N. Yadav and Standing Counsel, Prakash Singh pointed out that in terms of the provisions under the above-mentioned Act, the expression “Collector” would include “Additional Collector” also. It was further submitted that there was no violation of principles of natural justice as an enquiry report was sought from the Naib Tehsildar and thereafter notice was issued to the petitioner whereupon the petitioner duly filed his objections but did not appear later on.

In view of the above and to analyse the primary submission made by the petitioner, the Court observed that the provision with regard to appointment of Additional Collector was brought in by insertion of Section 14-A whereunder the State Government is empowered to appoint an Additional Collector in a district or in two or more districts combined who shall exercise such powers and discharge such duties of a Collector in such case or classes of cases as the Collector concerned may direct.

The Court also cited the Full Bench decision of this Court in the case of Brahm Singh v. Board of Revenue, 2008 SCC OnLine All 490, where it was held that the Additional Collector when he acts and discharges the duties and functions or exercises such powers of a Collector either under the 1901 Act or under any other Act for the time being in force, the powers would be deemed to have been exercised by him as Collector of the district under that Act. [Seetla v. State of U.P., 2019 SCC OnLine All 4784, decided on 05-12-2019]

Case BriefsHigh Courts

Uttaranchal High Court: Alok Singh, J. dismissed a writ petition filed by Sahak Nagar Adhikari, who was Public Information Officer under Right to Information Act, 2005.

The petitioner contended that, a show cause notice was issued upon him which sought an explanation as to why a penalty should not be imposed upon him for providing delayed information. He gave a brief reply of the said notice and administered information to the said officer. Thereafter, State Information Commissioner adjudged the matter and imposed a penalty of Rs 25,000 for delayed reply to the notice. He was aggrieved by the said order of the officer and therefore sought justice from the Court.

Mr Parikshit Saini, learned counsel for the petitioner, submitted that impugned order of the Information Officer was arbitrary and patently illegal, hence, was not maintainable. He argued that impugned order was ‘unreasonable’ and ‘non-speaking’, the officer failed to justify the penalty as he gave a brief reply as to why the delay was caused by him for discharging his duties. He relied on the judgment of Supreme Court, in Narendra Kumar v. CIC, 2014 (2) UD 72 where it was observed, “State Public Information Officer has decided any complaint or appeal without any reasonable cause, refused to receive an application for information or has not furnished information within the time etc., in that event penalty can be imposed. In the further opinion of this Court, if there was reasonable cause for furnishing the delayed information then Chief Information Commissioner should not impose penalty merely because there was some delay in supplying the information.”

The Court observed that judgment in case Narendra Kumar was not applicable in the aforementioned case, as in the referred case information was not supplied in time because of natural disaster but in the case of petitioner there was delay of one year in supply of the information whereas Act, 2005 mandates to provide information within thirty days. Cause shown by the petitioner for delay in supplying the information was the excessive workload. The Court stated that, petitioner has not explained his excessive work; this was no ground for the delay in providing the information. One year delay in providing information under the Right to Information Act was too high.

It further held that Commissioner has assigned the reason for the penalty. “Providing information after one year that too on filing of appeal in the State Information Commission amounts to denial of information.” Court found no illegality or perversity in the impugned order and directed the petitioner to pay the aforementioned penalty.[Chandrakant Bhatt v. Uttarakhand Information Commission, 2019 SCC OnLine Utt 356, decided on 10-05-2019]

Hot Off The PressNews

The National Human Rights Commission, NHRC has taken suo motu cognizance of a media report supported with photograph that as many as 20 persons including the Civic Agency staff and the lawyers received head injuries in the alleged police action in Howrah, West Bengal on the 24th April, 2019. Reportedly, demanding action against the police personnel, the Bar Council of West Bengal observed black day throughout the State today and has resolved to cease the work till April 29th in solidarity with the lawyers of Howrah. According to media reports, the incident happened following the lawyers’ faceoff with the Howrah Municipal Corporation staff over parking.

The Commission has issued a notice to the Director General of Police, West Bengal calling for a detailed report in the matter, within four weeks including action taken against the delinquent police personnel and health status of the victims.

It has observed that the contents of the news report, if true, raise the serious issue of violation of human rights of the victims, who have sustained injuries in the incident. Apparently, the police personnel did not deal with the situation in a proper manner which resulted in humiliation and physical injuries to the victims.

According to the media report that the incident was triggered after and the elderly lawyer was turned away by the Guard of the civic headquarters on Mahatma Gandhi Road in Howrah when he tried to park his vehicle in the civic agency’s compound. Thereafter, the lawyers and the civic body staff fought for hours as many lawyers joined the protest against the guard. The civic staff, however, claimed that they were attacked first. Both sides, as mentioned in the news report, pelted stones and bricks at each other before the police intervened and chased away the lawyers.


[Dated: 26-04-2019] 

NHRC

Case BriefsHigh Courts

Orissa High Court: The Bench of Dr A.K. Rath, J., allowed a petition filed against the order of the Trial Court which rejected an application of the petitioner filed under sub-section (2) of Section 80 CPC to waive notice on the ground of urgency.

Plaintiffs-petitioners had instituted the suit for a perpetual injunction against the defendants and also filed an application under sub-section (2) of Section 80 CPC to waive notice on the ground of urgency. However, the Trial Court rejected the application. The petition was filed against the order of the Trial Court. The petitioners had filed an application for injuncting the defendants from demolishing a portion of the house standing over the suit land. The suit had been instituted to obtain an urgent relief against the Government. Mr Sahu, Advocate for the petitioners submitted that the Trial Court had without assigning any reason rejected the petition.

The Court observed that Proviso to sub-section (2) of Section 80 CPC postulates that the Court shall, if it is satisfied, after hearing the parties, that no urgent or immediate relief need be granted in the suit, return the plaint for presentation to it after complying with the requirements of sub-section (1). The Trial Court had rejected the petition without giving reasons. This amounted to the denial of justice. The petition was thus allowed. [Basantilata Swain v. State of Orissa, 2019 SCC OnLine Ori 133, decided on 18-03-2019]

Case BriefsHigh Courts

Patna High Court: The Bench of Vinod Kumar Sinha, J. allowed a criminal appeal granting anticipatory bail to persons who were apprehending their arrest under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989.

Appellants herein were apprehending their arrest in connection with a police case registered for offences punishable under Sections 147, 341, 323, 354, 504, 506 of the Penal Code, 1860 and Sections 3(1)(s) of the SC/ST (Prevention of Atrocities) Act. Allegation against them was that they arrived, heavily armed, at informant’s house, thrashed his wife, assaulted her and made her semi-naked.

Submission of the learned counsel for the appellants, Mr Ashok Kumar Jha, was that Appellant 1 had filed a title suit pertaining to a land which the defendant (in title suit) tried to sell to the informant. However, the Court granted an injunction in favour of the appellants. Holding the same grudge against appellants, a fabricated police case had been lodged against appellants.

In view of facts and circumstances, the Court allowed the appellants to be released on bail in the event of their arrest, on furnishing a bail bond of Rs 25,000 each with two sureties of the like amount to the satisfaction of the learned Special Judge, SC/ST Act, Sitamarhi. [Bhikhari SK v. State of Bihar, 2019 SCC OnLine Pat 257, Order dated 27-02-2019]

Legislation UpdatesNotifications

The National Human Rights Commission has taken suo motu cognizance of media reports about one of the deadliest fire tragedies in the capital in recent years resulting in the death of 17 people were killed at a five-storey hotel in central Delhi’s Karol Bagh on Tuesday,12th February,2018. Many of them died in their sleep after an early morning blaze spread swiftly through AC ducts. Reportedly, the hotel owner had, apparently, carried out unauthorized construction/ modification in the building, after obtaining the clearance from the Fire Department.

The Commission has issued notices to the Chief Secretary, Government of NCT of Delhi, Commissioner of Police, Delhi and the Commissioner, North Delhi Municipal Corporation calling for a detailed report in the matter along with action taken against the errant officers/ officials along with relief and rehabilitation provided to the NOKs of the deceased and the injured persons.

The Commission also expects from the Chief Secretary, Government of NCT of Delhi to immediately form a committee of experts to look into the matter relating to violation of norms by the hotel owners/ shopkeepers and other individuals/ firms who are conducting commercial activities in the residential colonies and encouraging encroachment of public roads by recourse to illegal parking. The Committee should examine all the issues thoroughly and submit a report along with their suggestions to streamline these areas, making them safe and worth living for the citizens. The response is expected, within six weeks.

The Commission is of the opinion that it seems the authorities have not learned any lessons from the tragic incidents occurred in the recent past; no one appears to be bothered about the rules/ norms to be followed by the building owners and local residents. This painful incident could have been avoided if the hotel management and the authorities concerned would have acted sincerely. This is indeed a very serious case of violation of human rights.

The Commission has also observed that recently, several workers had died at clothes ironing workshop in Karol Bagh area of Delhi after a steam boiler caught fire and the victims got trapped due to cloth piles blocking the entrance. Suo-Motu cognizance of the tragic incident was taken by the Commission and a report was called for from the Commissioner of Police and the Chief Secretary, Government of NCT of Delhi of Delhi which is yet to be received.

The Commission has observed some common facts pertaining to both the incidents. In both the incidents, the victims could not come out of the premises due to blocked fire exit. Both the incidents have occurred in the Karol Bagh area which has become highly congested due to commercialization of buildings in the vicinity, in a reckless manner. These incidents raise several issues regarding working of the civic authorities in the National Capital as well as police authorities particularly, in the Karol Bagh and Paharganj areas where huge clusters of hotels have come up and they are often found flouting the prescribed rules in spite of procurement of fire safety clearance. Most of these hotels have installed wooden floorings and fiber glass ceilings in the buildings as emerges from the news report.

The Commission has also noticed that in the instant case, the fire tenders could not reach in time as there was no U-turn on the road for traffic and the vehicles had to drive all the way to Jhandewalan Chowk for a U-turn. The road was also blocked by vehicles parked on the road. In the earlier incident too, the fire tenders could not reach the congested Beadon Pura area in Karol Bagh due to narrow roads and traffic congestion.

Reportedly, it took almost four hours for the police and the firemen in mounting the tough rescue operation at the fateful hotel. The fire, as mentioned in the news report, was reported to the fire brigade around 4:35 AM and 26 fire tenders were immediately sent to the spot which brought the fire under control by 7:30 AM. Later, the cooling operation was launched at 8:00 AM which continued till noon after which the survivors were allowed to enter their rooms to collect their belongings. About 40 of the 45 rooms of the hotel were occupied by the guests, many of whom were from an extended family in Kerala who had come to attend a wedding in Ghaziabad.

According to the media reports, two senior HPCL officials have also died in the fire as six company officials who had come to attend the Petro-tech conference were accommodated in the hotel. The police personnel have reportedly seized the record pertaining to the details of the occupants of the hotel, to identify the deceased and the injured persons. Out of panic some of the guests jumped from the hotel windows to save their lives. One IRS officer who jumped out of a window died in the hospital due to fracture and head injuries.

It is also mentioned in the news reports that the Fire Department had given a Safety Certificate to the hotel on the 28th December 2017, which is valid for three years. The hotel owners have reportedly claimed that the “Arpit Palace Hotel” was a guest house, which as per rules, cannot have an operational kitchen for cooking but the firemen found a fiberglass structure on the rooftop which could be a Bar or Restaurant, the police is yet to investigate the matter. It is also stated further that the fire officials in the year 2014 had found a permanent structure on the roof of the building and orders for its demolition were issued. The demolition was mandatory to obtain safety clearance from the Fire Department. The hotel was also running a bar in the basement which has not been mentioned in the fire audit.

Reportedly, as the fire broke out, most of those who suffered burn injuries tried to make their way down the main staircase but unfortunately, the fire exit door was also locked. The “Water Hydrants” were present but not functional. The Mayor of the North Delhi Municipal Corporation has reportedly stated that electrical wiring was faulty and the fire exit seemed not have been used, for years.

[NHRC]

Case BriefsHigh Courts

Delhi High Court: The Bench of Sunil Gaur, J. refused to invoke the inherent extraordinary jurisdiction of the High Court under Section 482 CrPC.

Petitioners, represented by Akshay Bhatia and Avinash Das Advocates, had prayed for quashing of complaints filed under Section 138 of the Negotiable Instruments Act, 1881 (for dishonour of cheque). The quashing was sought on merits.

N.K. Aggarwal and Priya Pachouri, Advocates appeared for the respondents. It was informed to the Court that notice under Section 251 CrPC had been already framed and petitioners had also given their defence.

Since petitioners had an efficacious remedy to assail the notice framed under Section 251, the High Court refrained from invoking its inherent extraordinary jurisdiction under Section 482. The petitioners were given liberty to assail the notice before the Revisional Court within a period of four weeks. The petition was disposed of accordingly without commenting on merits. [Anand and Associates v. Jugal Kishore Jain, 2019 SCC OnLine Del 6708, Order dated 15-01-2019]

Case BriefsHigh Courts

Orissa High Court: A Single Judge Bench of A.K. Rath, J., quashed the impugned order and allowed the petition which was filed to challenge the order passed by the trial court wherein it returned the plaint for non-compliance notice under Section 80(1) CPC.

The facts of the case are that the plaintiffs-petitioners had instituted the suit for eviction of the defendant from the suit house and delivery of possession. Sri Sri Jagannath Mahaprabhu bije, Sri Jagannath Temple, Puri, had been arrayed as proforma defendant.

The main contention here by the defendants is that notice under Section 80 CPC was not complied with.

The counsel for petitioner Mr. A.P. Bose submitted that neither the State nor its functionaries were parties to the suit and The Administrator of Sri Sri Jagannath Mahaprabhu is a creature of the statute. That the Trial Court had committed manifest illegality in holding that notice under Section 80 CPC has not been complied with. The cardinal requirement under this section is that either the State or any public officer has to be a party to the suit to attract the provision of Section 80(1) of CPC.

The Court placing reliance on the case of Bihari Chowdhary v. State of Bihar, (1984) 2 SCC 627, upheld the above-mentioned contention of the petitioner and quashed the impugned order and allowed the petition. [Anupama Jena v. Bansidhar Jena,2018 SCC OnLine Ori 431, decided on 14-12-2018]

Case BriefsHigh Courts

Jammu and Kashmir High Court: A Single Judge Bench of Sanjeev Kumar, J., allowed a writ petition filed by the petitioner seeking directions upon the respondent authorities to allow him to discharge his duties as sweeper in SBI Branch, Prem Nagar.

The main issue that arose before the Court was whether the respondents were justified in replacing petitioner from his post of sweeper without any justification.

The Court observed that the petitioner was performing his duties in the capacity of a sweeper since a very long time on daily wages; however, he never sought regularization to the said post. He was being replaced by the respondent authorities without any justification and he was not even given an opportunity of being heard. In case if petitioner was not performing his duties diligently, then the respondent authorities should have served a notice upon him and must have given him a reasonable opportunity to explain his situation, rather they have simply decided to replace him with another person and this act on the part of respondents is simply arbitrary.

The Court held that the petitioner being a part-time worker cannot be regularized to his current position but he cannot be arbitrarily removed from his position. Such an exercise of power on the part of respondents is contrary to Article 14 and 16 of the Constitution of India and as such vexed with arbitrariness. Resultantly, the petition was allowed.[Mohd. Abdullah Bhat v. SBI,2018 SCC OnLine J&K 891, order dated 30-11-2018]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Company Law Appellate Tribunal (NCLAT): A Bench comprising of Justice A.I.S. Cheema, Member (Judicial) and Balvinder Singh, Member (Technical) dismissed an appeal filed against the order of National Company Law Tribunal (Mumbai) whereby it had admitted application filed by Operational Creditor under Section 8 read with Section 9 of the Insolvency and Bankruptcy Code, 2016 for initiation of Corporate Insolvency Resolution Process against Corporate Debtor.

Appellant was the Managing Director of Corporate Debtor. His submissions as to existence of dispute as contemplated under the code were not accepted. The main point considered by the Appellate Tribunal was regarding the non-observance of the provision of serving of notice by the Adjudicating Authority (NCLT) before admitting the application. It was argued by the appellant that absence of service of notice by the Adjudicating Authority itself violates principles of natural justice. Reliance was placed upon Starlog Enterprises Ltd. v. ICICI Bank Ltd., 2017 SCC OnLine NCLAT 13 and Mass Metals (P) Ltd v. Sunflag Iron and Steel Co. Ltd., 2017 SCC OnLine NCLAT 504. It was also an admitted fact that the appellant received the notice sent under Section 8 of I&B Code but Veritas Legal, Advocates & Solicitors of operational Creditor but it was contended that Veritas Legal was not the filing authority of the application in NCLT and nor was it authorised by any Board Resolution to act on behalf of Operational Creditor.

The Appellate Tribunal was of the view that Corporate Debtor and appellant had knowledge of the legal proceedings and also of the notice. It observed, “When advocate sends the notice, it is on instructions from the client and the same cannot be ignored by saying that the advocate should also forward authority and Resolution of the Company.” In regard to the requirement of notice to be sent by Adjudicating Authority, the Appellate Tribunal observed that the appellant had sufficient notice and still chose not to appear before NCLT. In such a case, the non-observance of the requirement was not fatal to the appellant’s case. Resultantly, it was held that the appeal was sans merit and was thus dismissed. [J.B. Tiwari v. Biostadt India Ltd., 2018 SCC OnLine NCLAT 563, decided on 30-11-2018]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Company Law Appellate Tribunal (NCLAT): A Two-Member Bench comprising of S.J. Mukhopadhaya(Chairperson) and Bansi Lal Bhatt (Member-Judicial), JJ. set aside an order passed by the National Company Law Tribunal (New Delhi) for being violative of principles of natural justice.

NCLAT had admitted the application filed by the respondent (operational creditor) under Section 9 of the Insolvency and Bankruptcy Code, 2016. The appellant submitted that the said application was admitted without any notice to the corporate debtor. It was contended that the order impugned was passed in contravention of rules of natural justice.

The Appellate Tribunal, after perusing the record, noted that admittedly the order impugned was passed by NCLT without notice to the corporate debtor which was indeed in violation of principles of natural justice. Furthermore, the parties had already settled the matter between themselves. in such view of the matter, the Appellate Tribunal was the view that in effect, the order impugned passed by NCLT and allotter orders passed pursuant thereof were illegal and therefore were set aside. The application preferred by the respondent under Section 9 was dismissed and NCLT was directed to close the proceedings. The appeal was, thus, allowed. [Rajesh Arora v. Sanjay Kumar Jaiswal, 2018 SCC OnLine NCLAT 837, dated 05-11-2018]

Hot Off The PressNews

Madras High Court: As reported by media, the bench comprising of Huluvadi G Ramesh and M.V. Muralidharan, JJ., directed NHAI to establish separate lane for the VIPs at the toll plazas across the country.

In order to implement the direction of the Court, the High Court bench passed interim orders to NHAI to issue circulars at all the toll plazas to provide a separate lane for all the VIPs and sitting judges. The VIP lane would only permit access to judges, top-ministers and emergency vehicles like ambulances.

Concluding the order, the bench stated that, “It is disheartening to note that the vehicles of VIPs and sitting judges are stopped at toll plazas and they are compelled to wait in the toll plazas for 10 to 15 minutes.” The Court also stated that if the present order won’t be complied with, then the consequence would be of a show cause notice to the authorities concerned.

[Source: Financial Express]

Case BriefsHigh Courts

Delhi High Court: A Division Bench comprising of G.S. Sistani and Sangita Dhingra Sehgal, JJ. allowed a writ petition filed for seeking a declaration that the acquisition proceedings under which the land of the petitioner was acquired have lapsed.

A notification was issued under Section 4 of the Land Acquisition Act, 1894 for acquisition of the subject land belonging to the petitioner. It was followed by a declaration under Section 6 vide which the subject land was finally acquired. An award of compensation to the petitioner was also rendered in 1985. However, the compensation was not paid till now. The petitioner submitted that since the compensation has not been tendered, the petitioners were entitled to a declaration that the acquisition proceedings have lapsed in terms of Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.

The High Court perused the record and considered submissions made by the parties. The Court found that there was no room for doubt that compensation had not been tendered to the petitioners, and thus, one of the two necessary ingredients of Section 24(2) of the Act of 2013 was met. Furthermore, having regard to the fact that the award of compensation was announced more than five years prior to the commencement of the Act of 2013, the case of the petitioners was covered by Section 24(2). Thus, according to the Court, the petitioners were entitled to a declaration that the acquisition proceedings initiated under the Land Acquisition Act were deemed to have lapsed. The order was made accordingly. [Satwant Singh v. Land and Building Department,  2018 SCC OnLine Del 10870, dated 27-08-2018]

Case BriefsSupreme Court

Supreme Court: In a PIL filed by Trinamool Congress MLA Mahua Moitra challenging the decision of the Centre on creating a Social Media Communication Hub (SMCH) on the ground that it was an attempt on snooping the citizen’s social media activities in violation of their Right to Privacy under Article 21 of the Constitution of India, Supreme Court has issued a notice against the same.

The Bench comprising of S Abdul Nazeer and Indu Malhotra JJ. had addressed the said petition in which Moitra had accused the government of attempting to invade the privacy of citizens, which eventually violated the Right to Life guaranteed by the Constitution of India.

According to the tender document, the successful bidder will be required “to collect digital media chatter from all core social media platforms as well as digital platforms like news, blogs, and forums”.

Therefore, Supreme Court Bench headed by CJ Dipak Misra on hearing the petition filed earlier, today issued a notice against the “Social Media Communication Hub” that has been proposed by the central government and has sought the assistance of Attorney General KK Venugopal. The case is listed for further proceeding on 03-08-2018.  [Mahua Moitra v. Union of India,2018 SCC OnLine SC 697, order dated 13-07-2018]

Case BriefsHigh Courts

Himachal Pradesh High Court: A Division Bench comprising of Dharam Chand Chaudhary and Ajay Mohan Goel, JJ., addressed a writ petition concerning the status of connectivity in tribal area.

The Hon’ble High Court served a notice to the Respondents – BSNL to file a report along with the required steps in regard of the connectivity in tribal area of Lahaul and Spiti, Kinnaur, Chamba District i.e. Killar and Bharmaur area. For the same purpose if any other steps are also to be taken in order to improve the connectivity in the stated areas then the Court shall be apprised for the same.

The other point of concern raised and also has to be taken care of by the Respondent 4 are the postal services in the stated tribal areas. A report has to be filed on the availability of the postal services in regard to the shortage of postal stamps, postcards, etc. The said issue of postal services was raised due to acute shortage of postal stamps and postcards being noticed in the post office Hikkim, District Lahul and Spiti, the highest post office in the world.

Therefore, the Hon’ble bench of judges has asked to file a report and take necessary actions, needed, for the raised issues and concerns for the improvement of the connectivity in tribal areas. [Virender Thakur v. BSNL,2018 SCC OnLine HP 824, Order dated 22-06-2018]

Case BriefsHigh Courts

Bombay High Court: The Court accepted service of notice through WhatsApp messenger after finding that the notice served was not only delivered, but the attachment was opened as well.

The claimants had filed the execution application against the respondent who was evading all their calls and efforts by legal representatives to reach out to him. He has been evading service of notice under Order XXI Rule 22 of the Code of Civil Procedure, 1908. After tracing his number, a notice was sent to him informing him about the next date of hearing. Notice was served by an authorised officer of the claimant by sending a PDF and message to his mobile number as a WhatsApp message.

The Bench of G.S. Patel, J. accepted this for the purposes of service of Notice under Order XXI Rule 22 as the icon indicators clearly showed that not only was the message and its attachment delivered to the respondent’s number but that both were opened as well. [SBI Cards & Payments Services Pvt. Ltd. v. Rohidas Jadhav,2018 SCC OnLine Bom 1262, order dated 11-06-2018]