Opportunity of Hearing

Case BriefsHigh Courts

Bombay High Court: The Division Bench of Sunil B. Shukre and Anil S. Kilor, JJ., held that mandate of Section 34 leaves a party aggrieved by the action of the Bank taken under Section 13 of the SARFAESI Act with only one forum to raise its grievance before it. This would further underline the need for any Debts Recovery Tribunal to be careful in denying urgent hearings to the parties.

Petitioner was aggrieved by the notice issued under Section 32 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act), whereby two mortgaged properties creating a security interest in favour of respondent 1/Bank towards repayment of a loan granted to petitioner 2/company were put on auction sale.

Petitioners had filed an application under Section 17 of the SARFAESI Act before the Debts Recovery Tribunal, Nagpur questioning the said sale notice.

As per the sale notice, the petitioner had to pay the outstanding dues amounting to Rs 5,87, 10,380.23 together with applicable interest and costs within15 days, failing which the notice informed that the respondent 1/bank would be constrained to sell the secured assets for realization of the dues.

Further, it was noted that the petitioners did not question the said notice for its validity immediately after its receipt and almost about 25 days thereafter, chose to knock at the doors of Debts Recovery Tribunal.

Petitioner’s request for an urgent hearing was also declined by the DRT.

Right of Hearing

Contention of the petitioners was that the petitioners were being denied the right of hearing by the Debts Recovery Tribunal, the only forum available for redressal of grievances arising from the measures taken under Section 12 of the SARFAESI Act which affected the fundamental rights of the petitioners.

There is a difference between refusal to hear a matter on a particular date and refusal to hear the matter at all. 

In the present matter, DRT had not said that it would not hear the application and thus the request for grant of urgent hearing had not been altogether rejected by the DRT, Nagpur. Also, the rejection came from the Registrar of the DRT and not from the Presiding Officer of DRT.

High Court in view of the above facts and circumstances, stated that the Registrar of the Debts Recovery Tribunal, instead of taking a decision himself, ought to have placed the request for urgent hearing before the Presiding Officer of the Debts Recovery Tribunal and allowed the Presiding Officer to take appropriate decision in the matter.

Adding to the above, Bench noted that If the said auction sale was to go ahead and finalization of the sale of the properties in the auction had indeed taken place, it would have resulted into adversely affecting the rights of the petitioners even without hearing the petitioners and the further consequence would have been another grievance of violation of principles of natural justice.

High Court referred to the Supreme Court decision in Mardia Chemicals Ltd. Etc. v. Union of India, (2004) 4 SCC 311, wherein it was held that the central theme of the provisions made in the SARFAESI Act is of fairness and transparency in the procedure adopted while taking such drastic measures as taking over of the possession of the secured assets and they being sold in realization of the dues payable to the banks, without any intervention of any judicial authority.

Section 34 of the SARFAESI Act raises an embargo upon the power of the Civil Court to grant injunction in respect of any action. Taken or to be taken in pursuance of the powers conferred by under this Act or under the Recovery of Debts and Bankruptcy Act, 1993.

Opportunity of Hearing

 Court expressed that the opportunity of hearing is an integral part of our constitutional philosophy and it is well embedded in Articles 14 and 21 of the Constitution of India.

Since the Registrar of the Debts Recovery Tribunal failed to perform his duty in the matter, therefore, the order passed by him denying the hearing would have to be held as illegal.

While partly allowing the petition, Court directed the Debts Recovery Tribunal to hold an urgent hearing. [Aruna DTS Moorthy v. UCO Bank, 2021 SCC OnLine Bom 1537, decided on 30-7-2021]

Advocates before the Court:

S.S.Sanyal, Advocate for the petitioners.

Sau. Supriya Puntambekar, Advocate for respondent 1. Shri C. Deopujari, Advocate h/f Aurangabadkar, ASGI for respondent 2.

Case BriefsHigh Courts

Chhattisgarh High Court: Sanjay K Agrawal J., allowed the petition and held that forfeiture of earned remission of a convict is violative of fundamental rights under Article 21 of the Constitution of India.

The facts of the case are such that the petitioner is a convicted prisoner undergoing sentence in Central Jail, Bilaspur for commission of offences under Sections 302, 307 and 149 of Penal Code, 1860. It was alleged that petitioner was found in possession of prohibited article, a prison offence under Section 45 of the Prisons Act, 1894, the Octagon Officer submitted his report to the Jailor, made a recommendation to the Jail Superintendent which was then simply approved by the Jail Superintendent on the same date and as such, the order of forfeiture of 10 days of petitioner’s earned remission was passed. The petitioner has assailed the said order on the ground that such forfeiture of his earned remission, without affording him an opportunity of hearing, is in violation of his fundamental right guaranteed under Article 21 of the Constitution of India.

Counsel for the petitioner submitted that remission forfeited by the Jail Superintendent on account of a prohibited article found in possession of the petitioner, which is a prison offence under Section 45(12) of the Prisons Act, 1894, is absolutely unjust and improper and is in violation of petitioner’s fundamental right under Article 21 of the Constitution of India as no enquiry was conducted by the Jail Superintendent as contemplated in Rule 734 of Chhattisgarh Prisons Rules, 1968 nor the petitioner was afforded an opportunity of hearing in that enquiry, as such, the impugned order passed by the Jail Superintendent deserves to be set aside.

Counsel for the respondents submitted that the impugned order and submit that the instant petition deserves to be dismissed.

Amicus curiae relied on judgment Anand Rao v. Inspector General of Prisons, 1982 MPLJ 73 (DB) and submitted that without following the due procedure as prescribed in Rule 734 of Chhattisgarh Prisons Rules, 1968, petitioner’s earned remission could not have been forfeited.

The Court relied on judgment Sunil Batra v. Delhi Admn., (1978) 4 SCC 494 and observed, it is quite vivid that in the instant case, the enquiry has only been made by the Octagon Officer and the report has been submitted to the Jailor, who has then recommended forfeiture of petitioner’s 10 days of earned remission to the Jail Superintendent, but without giving an opportunity to the petitioner to explain his conduct, penalty of forfeiture of earned remission has been imposed upon him by the Jail Superintendent as he agreed to the recommendation made by the Jailor for forfeiting 10 days of remission earned by the petitioner.

The Court thus held that no such opportunity has been granted to the petitioner to explain his conduct and even otherwise, no enquiry was conducted by the Jail Superintendent while forfeiting petitioner’s earned remission as pursuant to the recommendation made by the Jailor, petitioner’s 10 days’ earned remission has been forfeited, which is violative of petitioner’s fundamental right guaranteed under Article 21 of the Constitution of India.

In view of the above, petition was allowed.[Suraj Gupta v. State of Chhattisgarh, 2021 SCC OnLine Chh 448, decided on 26-02-2021]

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Case BriefsHigh Courts

Karnataka High Court: John Michael Cunha J., while rejecting the present criminal revision petition, elaborated on scope and ambit of Section 397 Criminal Procedure Code, 1973 and further rejected the argument of the petitioner that the lower courts have erred in appreciating the evidence.

Brief Facts

The present Revision Petition is filed under Section 397 CrPC, read with Section 401 CrPC, praying to set aside the judgment/order of conviction dated 27-01-2018 passed in Criminal Case No. 52506 of 2013 and the judgment dated 12-08-2020 passed in Criminal application No. 2507 of 2018. Challenging the concurrent judgments and sentence for payment of Rs 10,00,000 rendered by the Courts below convicting the petitioner under Section 138 of the Negotiable Instruments Act, 1881, the petitioner prays for acquittal on the ground that the lower Courts have erred in appreciating the evidences placed on record in addition with according to the adequate opportunity of hearing to the petitioner/accused.

Issue

Whether the present petition under Section 397 CrPC maintainable?

Observation

The Court while redefining the scope and ambit of Section 397 noted,

“This Court in exercise of its power under Section 397CrPC cannot re-appreciate the evidence and arrive at a different conclusion, even if different view is possible from the evidence. The jurisdiction under Section 397 CrPC could be exercised only when the decision under challenge is grossly erroneous; non-compliance with the provisions of law; finding of fact affecting the decision is not based on evidence; non-consideration of the material evidence and that the lower court has exercised the discretion arbitrarily or perversely and acted in excess of its jurisdiction or abused its power resulting in failure of justice.”

The Court further said that no errors or illegality can be traced in the orders made by the lower court in the instant case. The argument made on the ground of inadequate hearing stands rejected as the records prove procedural compliance and stage of evidence.

Decision

Rejecting the present criminal revision petition at the admission stage itself, the Court found no reasons to interfere with the findings of the trial court, on both sentence and conviction.[K. Kuppuraj v. J. Thrilokamurthy,  Crl. Revision petition No. 606 of 2020, decided on 05-10-2020]

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Case BriefsHigh Courts

Allahabad High Court: A Division Bench of Govind Mathur, CJ and Chandra Dhari Singh, J. allowed and listed the present petition on 06-03-2020, filed with regard to National Register of India Citizens.

Government of India under the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003 had issued Instruction Manual for updating of National Population Register 2020.

As per the above-stated manual,

“Fieldwork of NPR data collection was undertaken along with House listing and Housing Census, 2010. The scheme for creation of National Population Register, which has been undertaken as per provisions of the Citizenship Act, 1955 and the Rules of 2003 shall contain the details of ‘usual residents’ of the country regardless of whether they are citizens or non-citizens of India. It is further provided that NPR is required to be created in the year 2020 and for that, the government has decided to update the database along with house listing and housing census of India 2021 during April-September, 2020.”

Aadhaar Number along with the mobile number, election photo identity cards or Voter ID card number, Indian Passport number and driving license number, all of these of the residents shall be collected if available in the above-said process.

Petitioner’s case is that the data collected shall be the foundation for the National Register of Indian Citizens and therefore, it would be necessary to have a copy of proforma in which all personal data would be provided by a citizen.

Counsel for petitioner Aftab Ahmad, added that, in accordance with Rules, 2003 no adverse decision could be taken by respondents without providing an opportunity of hearing the residents. He also asserted that an objective and fair hearing demands a supply of all material on which respondents rely while taking the decision to place a resident in NRC.

The petition is listed for 06-03-2020 and time prayed is allowed. [Manvendra Pratap Singh v. U.O.I. Ministry Of Home Affairs, PIL Civil No. 6491 of 2020, decided on 04-03-2020]

Case BriefsHigh Courts

Himachal Pradesh High Court: A Division Bench of L. Narayana Swamy, CJ and Jyotsna Rewal Dua, J., dismissed an application which was filed by the petitioners challenging an order dated 10-05-2016 given by the H.P. Administrative Tribunal, Shimla (Tribunal) whereby the T.A. was allowed and the termination against the respondent was quashed and set aside.

The respondent had been working as daily waged Chowkidar with the petitioners- Corporation and was posted at Sehral Depot of Forest Working Unit Kunihar under Forest Working Division, where theft of 229 of resin filled tins took place on the intervening night of 17th and 18th February, 1997 after which an enquiry was initiated against the respondent. The petitioners-Corporation had issued a show-cause notice to the respondent alleging that he had been willfully absent from duty on the intervening night of 17th and 18th February, 1997 following which the services of the respondent were dispensed. Being aggrieved by the order of termination the respondent had approached the Tribunal who had decided in favor of the respondent and thus the instant writ petition was filed by the petitioner.

The Court while dismissing the petition held that a person, who was working as a daily wager or on contract basis and if his services have been discontinued or terminated on the basis of any allegation of misconduct etc., the provisions of the Central Civil Services (Conduct) Rules, 1964 are not applicable to his case, however, even then the principles of natural justice are required to be followed and if an order was passed against a person without affording him an opportunity of hearing, it is in violation of natural justice. In addition, the petition needs to be dismissed on the ground of delay and laches because the writ was filed after three years of the order. [H.P. State Forest Development Corporation Ltd. v. Ishwar Dutt, 2019 SCC OnLine HP 2199, decided on 18-12-2019]

Case BriefsHigh Courts

Patna High Court: Ashwani Kumar Singh, J. dismissed the application to quash the police report submitted by the investigating officer as it was the prerogative of the Magistrate concerned and not the instant Court.

The petitioner filed an application under Articles 226 and 227 of the Constitution of India for quashing the final report submitted by the Assistant Sub-Inspector of Police, who had investigated the case filed by the petitioner.

It was contended by the petitioner that initially a complaint case was filed by the petitioner in the Court of Chief Judicial Magistrate, which was referred to the police under Section 156(3) of the Code of Criminal Procedure (“CrPC”), pursuant to which a police case was registered and investigation was taken up. In the complaint, it was alleged that the accused persons had cheated the petitioner by preparing a forged and fabricated registered sale deed. The petitioner submitted that the investigating officer did not investigate the case in a fair and impartial manner and submitted a collusive police report under Section 173(2) of the CrPC holding the case to be a civil dispute, which according to the petitioner, could by no stretch of imagination, be said to be a case of civil dispute. The petitioner prayed for setting aside the police report.

Sheo Shankar Prasad, appearing for the State contended that the contentions advanced by the petitioner that the police submitted a collusive report had no legal basis. The police report submitted before the Court was based on the outcome of investigation since the witnesses, whose statements were recorded in course of investigation, had not supported the allegations made in the complaint. Counsel also urged that under any circumstance, the Court was not bound by the opinion of the police. In case there were materials to proceed with the case, the Court of Magistrate had the jurisdiction to take cognizance of the offence and proceed with the trial of the accused persons, and it was not proper for this Court to quash the report submitted by the police after completing the investigation of the case.

High Court held that it was a well-settled position in law that a report submitted under Section 173(2) of the CrPC was not binding on the Court. The Court of Magistrate may agree with the police report or it may differ with the conclusions arrived at by the police. At the stage of the investigation, the Court has no say. However, as soon as the investigation was completed and a report was submitted under Section 173(2) of the CrPC, the investigating agency was required to forward to the Magistrate empowered a report in the prescribed format so as to pass an order in accordance with the law. The Magistrate empowered is not bound by the conclusions arrived at by the police. Before accepting the police report submitted under Section 173(2) of the CrPC, the Magistrate was also required to hear the informant of the case, who set the machinery of an investigation into motion. Instead of appearing before the Magistrate and placing his case before him, the petitioner chose to file the instant application for setting aside the police report, which was not permissible in law in view of not availing the opportunity of hearing before the Magistrate concerned.

In view of the above-noted facts, the instant application was dismissed as no case was made out for interfering with the police report by the instant Court. [Janeshwar Sharma v. State of Bihar, 2019 SCC OnLine Pat 1749, decided on 30-09-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

Securities Appellate Tribunal (SAT), Mumbai: Coram of Justice Tarun Agarwala, (Presiding Officer), Dr C.K.G. Nair (Member), and Justice M.T. Joshi, (Judicial Member) directed an Adjudicating Officer to look into a matter afresh since BSE waived off the penalty imposed by them on the appellants.

The appellant, in this case, failed to comply with the provisions of Rule 19 of the Securities Contract (Regulation) Rules, 1957 (SCRR) with regard to the continuous listing.  An Adjudicating Officer, therefore, imposed a penalty of Rs 4 lakhs under Section 23-E of the Securities Contracts (Regulation) Act, 1956 (SCRA). The said penalty was imposed inspite of the fact that the appellant had contended that the MPS requirement was not required to be done in view of the order passed by Board for Industrial and Financial Reconstruction (BIFR) pursuant to the scheme of rehabilitation.

Subsequent to the passing of the impugned order, SEBI issued a letter advising the appellant to file the correct shareholding pattern with the stock exchange as directed by a BIFR order back in 2014. Based on the fresh shareholding pattern filed by the appellant, BSE withdrew the fines imposed upon the appellant with regard to the non-compliance of the MPS requirements.

Based on the facts, the Tribunal directed the Adjudicating Officer to reconsider the matter afresh. They set aside the older order by the Adjudicating Officer so that he/she can pass a fresh order after giving an opportunity of hearing to the appellant. The decision as for the amount of penalty already deposited by the appellant would be decided by fresh orders passed by the Adjudicating Officer.[Smiths & Founders India Ltd. v. Securities & Exchange Board of India, 2019 SCC OnLine SAT 133, decided on 07-08-2019]

Case BriefsHigh Courts

Gujarat High Court: A Bench of A.Y Kogje, J. partly allowed a petition whereby the case was remanded back to the Sub-Divisional Magistrate to reconsider the earlier order by giving an opportunity of hearing to the petitioner.

In the pertinent case, the petitioner submitted that while the period for which the license was to operate an FIR came to be registered with an allegation that in the area where the Anand Mela was being conducted, some people had indulged in gambling activity and therefore the area where the Anand Mela was being held was sealed. Since the livelihood of many families was dependant on the functioning of the Anand Mela, the petitioner thus approached the Court for an amendment to such order.  Further, it was contended that the license holder was not even present when the alleged incident had taken place and therefore if any of the visitors would have indulged in such activity then the petitioner cannot be held responsible.

The respondents, in turn, made allegations that the persons involved in the gambling activities and that the person conducting such activity had escaped from the premises. He also submitted that the petitioner is not entitled to any opportunity of hearing more particularly when he is in breach of the condition of license condition No. 16 of the license.

The Court after considering the material facts and the registered FIR opined that “the contention itself discloses that the license holder himself was not found on the spot when the petitioner strongly disputes about the nature of game being played at the Anand Mela and also disputes his presence at the time when the offence came to be registered. It would be a question of fact which will have to be gone into while the offence is being tried”. Also “The Provisions of Bombay Police Act under which the license is granted does not provide for any appeal as the provisions for appeal is restricted to certain sections but does not include Section 33(1) of the Bombay Police Act”. Further since conducting the Anand Mela was the primary source of livelihood for the petitioner and others, therefore before canceling the license where the petitioner is strongly opposing activity of gambling in the premises, the principles of natural justice should be followed.[Manharbhai Kachrabhai Rathod v. State of Gujarat, 2019 SCC OnLine Guj 604, Order dated 04-04-2019]

Case BriefsHigh Courts

Kerala High Court: The Bench of Shaji P. Chaly, J. disposed of a civil writ petition against suspension under rationing order, allowing an authorized retail distributor to file objection to the said order.

Petitioner was an authorised retail distributor of ration articles appointed in the year 1986. In August 2018 an action was initiated against the petitioner by invoking Clause 45(8) of the Kerala Rationing Order, 1966. The main contention advanced by the petitioner was that the suspension order was passed without hearing him.

The Court took note of the judgment in State of Kerala v. A. Beevi Kannu, 2014 SCC OnLine Ker 21219 where it was held that there is no requirement for providing the opportunity of hearing before making a suspension under the rationing order, in emergent situations.

Learned counsel for petitioner O.V. Maniprasad submitted that it would suffice if the petitioner is permitted to participate in the proceedings by filing an objection to the suspension order. In view thereof, the petition was disposed of permitting the petitioner to submit suitable objection within one month from the date of receipt of a copy of this judgment.[Sivaprasad S.P. v. State of Kerala, 2019 SCC OnLine Ker 980, Order dated 27-03-2019]