High Court of Himachal Pradesh

Raju Thakur v. State Election Commission and Ors.

MANU/HP/0352/2017

29.05.2017

Election

Election Commission shall complete election before expiration of duration of five years' period

Aggrieved by order passed by Respondent No. 1 on 9th May, 2017, whereby elections to Shimla Municipal Corporation have been postponed, Petitioner has filed instant writ petition for issuance of a writ of certiorari to quash office order dated 9th May, 2017. Petitioner prayed for issuance of a writ of mandamus directing Respondent authorities to conduct election on time and to constitute a duly elected Shimla Municipal Corporation on or before 4th June, 2017. Issue a writ of mandamus directing concerned authorities to initiate appropriate necessary disciplinary proceedings against erring officials and qua removal of present incumbent heading Respondent No. 1." Petitioner argued that, order dated 9th May, 2017 cannot withstand judicial scrutiny as it has been issued in violation of provisions of Article 243U of Constitution as interpreted by Constitutional Bench of Supreme Court in Kishansing Tomar v. Municipal Corporation of the City of Ahmedabad and others.

State Election Commission shall not put forward any excuse based on unreasonable grounds that, election could not be completed in time. Election Commission shall try to complete election before expiration of duration of five years' period as stipulated in Clause (5) Article 243U. Any revision of electoral rolls shall be carried out in time and if, it cannot be carried out within a reasonable time, election has to be conducted on basis of the then existing electoral rolls. Election Commission shall complete election before expiration of the duration of five years' period as stipulated in Clause (5) and not yield to situations that may be created by vested interests to postpone elections from being held within stipulated time.

Exposition of law culled out from decision in Kishansing Tomar's case makes it evidently clear that, while drawing a distinction between certain man-made calamities, such as rioting or breakdown of law and order, or natural calamities which could distract authorities from holding elections to Municipality and other reasons for delay, Supreme Court had noted that, former are exceptional circumstances and under no other circumstance would Election Commission be justified in delaying process of election. Indubitably, exercise of special revision of electoral rolls as is being undertaken by Respondent No. 1 does not fall within former category so as to entitle it to postpone elections. Provisions contained in Article 243U of Constitution, makes it absolutely clear that, period of five years fixed thereunder to constitute Municipality is mandatory in nature and has to be followed in all respects.

Exercise now being undertaken by Respondent No. 1 for revision of electoral rolls cannot rest process of election and should have been done timely. For, it is incumbent upon Respondent No. 1 and other Respondents to carry out mandate of Constitution and to see and ensure that, a new Municipality is constituted in time and election to Municipality are conducted before expiry of its duration of five years as specified in Clause (1) of Article 243 (4). Revision of electoral rolls was required to be carried out in time by Respondents and if they have not been carried out within time frame, then election has to be conducted on basis of existing electoral rolls.

Action of Respondents in postponing election, even though presumed to be bonafide, cannot be countenanced or upheld as same is contrary to Constitutional mandate of Article 243U as interpreted by Constitution Bench of Supreme Court in Kishansing Tomar's case and thereafter re-affirmed in K.B. Nagur's case. Accordingly, order passed by Respondent No. 1 on 9th May, 2017 is quashed and set-aside.

Respondent No. 1 shall forthwith and no later than 24 hours of receipt of this judgment, frame a programme for general elections of Municipal Corporation and take all consequential action so as to ensure that, elections are held no later than 18th June, 2017, even if this calls for some deviation of Rule 33. Respondents shall ensure that, new body of duly elected representatives of Corporation is constituted latest by 19th June, 2017. Election shall be conducted on basis of final electoral rolls published on 5th May, 2017 subject to proviso as contained in Rule 25 of Himachal Pradesh Municipal Corporation Election Rules, 2012. Elected and nominated body of existing Municipal Corporation shall not be permitted to be in office after 4th June, 2017 and it shall further be duty and responsibility of State Government to put in place a proper mechanism so as to ensure that, working of Corporation does not suffer on account of implementation of this judgment." However, this judgment shall not be treated as a precedent. Petition disposed off.

Relevant

Kishansing Tomar vs. Municipal Corporation of the City of Amedabad and Ors. MANU/SC/8563/2006
, K.B. Nagur M.D. (Ayu.) vs. Union of India (UOI)

Tags : Office order Provisions Violation

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National Consumer Disputes Redressal Commission

Azure Tree Townships LLP v. Srishti Building No. 343 Co-Operative Housing Society Limited

MANU/CF/0330/2017

26.05.2017

Consumer

National Commission has powers to call for records and pass appropriate orders in consumer disputes, where State Commission has exercised the jurisdiction not vested in it or acted illegally

Instant appeals have been filed against impugned order, passed by State Commission. Complaints were filed alleging deficiency in service rendered by OP builders to complainant society and its members, as a result of statutory and contractual breach on part of OP Builders. Directions have been sought through consumer complaints to builders to remove defects in construction and to carry out repairs etc. Directions have also been sought for making payment of certain amounts alongwith interest towards compensation for delay of 15 months in handing over possession. Particulars of claim attached with consumer complaint in one case shows that, total amount claimed is Rs. 98,68,432/-.

Complainant is a Cooperative Housing Society authorised through a resolution passed in a Special General Body Meeting of Society to collectively represent interests of its members. It is stated that, complaints have been filed by complainant society on its own behalf as well as on behalf of its members. Copies of individual agreements for sale executed by OP Builder with members of complainant society have been attached with complaint. It is evident, therefore, that complainant society has filed consumer complaint in question to look after interests of its members. There is no direct evidence to show that, complainant society itself is a 'consumer'. Evidently, this is a case where society is acting as a voluntary consumer association and has filed consumer complaints as a 'recognised consumer association' within meaning of section 12(1)(b) of Consumer Protection Act, 1986. Term 'voluntary consumer association' has been defined in a recent order passed by a three-Member Bench of this Commission in " Moulivakkam Trust Heights Flats Affected Buyers Association v. M/s. Prime Sristi Housing Pvt. Ltd. & Ors.", and complainant Society is covered in definition as such. There is no question of any permission being granted for filing complaints under Section 12(1)(c) of Consumer Protection Act, 1986, therefore, in present cases.

Averments made by Appellants/OPs before State Commission stating that, complainant should have obtained permission under Section 12(1)(c) before filing present complaints, is not valid in eyes of law. Further, averment made by learned counsel for Respondent as well that present complaint should be taken to have been filed under section 12(1)(a) of Act, is also not valid because Cooperative Society by itself is not a consumer in present case, rather they have filed consumer complaints on behalf of its members. It has been mentioned in complaints that, individual members had executed different individual agreements with OP builder. Regarding pecuniary jurisdiction, a three-Member Bench of this Commission have already decided in case of "Ambrish Kumar Shukla v. Ferous Infrastructure Ltd. " that, value of flat is also to be taken into consideration while deciding pecuniary jurisdiction of consumer fora. Once, said value is taken into account, cases go beyond pecuniary jurisdiction of State Commission.

It is made out from Section 22B of Act that, this Commission may transfer any complaint pending before District Forum of any State to that of another State, or before one State Commission to another State Commission. There is no provision for transfer of proceedings from State Commission to National Commission. Further, as laid down under section 21(b) of Act, this Commission has powers to call for records and pass appropriate orders in consumer disputes, where it appears to this Commission that, State Commission have exercised jurisdiction not vested in it, or has failed to exercise a jurisdiction so vested or has acted illegally or with material irregularity. In present case, consumer complaints are still pending before State Commission and they have not exercised their jurisdiction or failed to exercise said jurisdiction in terms of section 21(b) of Act. Therefore, contention raised by complainants that this Commission should call for records from State Commission and then proceed further in matter of deciding consumer complaints is misplaced.

State Commission have taken an erroneous view that, they had pecuniary jurisdiction to decide complaints. Order passed by State Commission is, therefore, set aside and it is held that, said complaints were not maintainable before State Commission for lack of pecuniary jurisdiction. Matters are remitted back to State Commission for taking further necessary action as per law by directing complainants to file their complaints before appropriate forum/commission of competent jurisdiction.

Relevant

Moulivakkam Trust Heights Flats Affected Buyers Association v. M/s. Prime Sristi Housing Pvt. Ltd. & Ors., Ambrish Kumar Shukla v. Ferous Infrastructure Ltd.

Tags : Service Deficiency Compensation

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Supreme Court

V. Shantha v. State of Telangana and Ors.

MANU/SC/0659/2017

24.05.2017

Criminal

Power to detain being statutory in nature, its exercise has to be within limitations of statute

Appellant assails order of preventive detention of her husband, passed by Respondent No. 2, under Telangana Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 (Act). Appellant submits that, an order of preventive detention is a serious matter affecting liberty of citizen. It cannot be resorted to when sufficient remedies are available under general laws of land for any omission or commission under such laws. Detenu was already being prosecuted under penal code and Seeds Act.

Order of preventive detention has been made under Section 3 (1) and (2) read with Section 2 (a) and (b) of Act. Section 3 of Act, empowers Government if satisfied, with respect to a "Goonda" to detain such person with view to preventing him from acting in any manner prejudicial to maintenance of public order. Section 13 of Act, provides for a maximum period of detention for twelve months. If order of preventive detention is sustainable, detenu will continue in custody, without opportunity to move for bail, till 17th October, 2017.

An order of preventive detention, though based on subjective satisfaction of detaining authority, is nonetheless a serious matter, affecting life and liberty of citizen under Articles 14, 19, 21 and 22 of Constitution of India. Power being statutory in nature, its exercise has to be within limitations of statute, and must be exercised for purpose power is conferred. If power is misused, or abused for collateral purposes, and is based on grounds beyond statute, takes into consideration extraneous or irrelevant materials, it will stand vitiated as being in colourable exercise of power.

Detenu was owner of Laxmi Bhargavi Seeds, District distributor of Jeeva Aggri Genetic Seeds. Three FIRs were lodged against detenu and Ors. under Sections 420, 120-B, 34 of Indian Penal Code, 1860 and Sections 19, 21 of Seeds Act, 1966. It was alleged that, chilli seeds sold were spurious, as they did not yield sufficient crops, thus causing wrongful loss to farmers, and illegal gains to accused. Whether seeds were genuine or not extent of yield, are matters to be investigated in FIRs. Section 19 of Seeds Act, provides for penalty by conviction and sentence also. Likewise, Section 20 of Seeds Act, provides for forfeiture. Sufficient remedies for offence alleged were, therefore, available and had been invoked also under ordinary laws of land for the offence alleged.

Order of preventive detention passed against detenu states that, his illegal activities were causing danger to poor and small farmers and their safety and financial well-being. Recourse to normal legal procedure would be time consuming, and would not be an effective deterrent to prevent detenu from indulging in further prejudicial activities in business of spurious seeds, affecting maintenance of public order, and that there was no other option except to invoke provisions of preventive detention Act as an extreme measure to insulate the society from his evil deeds. Rhetorical incantation of words "goonda" or "prejudicial to maintenance of public order" cannot be sufficient justification to invoke draconian powers of preventive detention. To classify detenu as a "goonda" affecting public order, because of inadequate yield from chilli seed sold by him and prevent him from moving for bail even is a gross abuse of statutory power of preventive detention. Grounds of detention are ex-facie extraneous to Act. Order of preventive detention is held to be unsustainable and is set aside appeal is allowed.

Tags : Detention Validity Release

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High Court of Delhi

Chanchal v. State

MANU/DE/1451/2017

24.05.2017

Criminal

Plea of juvenility could be taken up by an accused at any stage of proceedings, even after disposal of case from Supreme Court

Appellant was convicted under Sections 392 and 34 of Indian Penal Code, 1860 (IPC) and was sentenced to undergo RI for seven years, fine of Rs. 5000/- and in default of payment of fine to undergo further RI for six months. Appeal was admitted and Trial Court records were called for. Along with appeal, Appellant had also filed an application seeking suspension of sentence and another application seeking his release from custody on ground that, on date of occurrence i.e. 13.05.2013, Appellant was below 18 years of age. In support of aforesaid contention, a school leaving certificate issued by Directorate of Education, Government of NCT of Delhi was brought on record. Aforesaid document at Annexure A to application discloses that, he was 17 years, 9 months and 22 days at time of commission of offence. By order dated 28th April, 2016, Appellant was directed to furnish further information in terms of directions given by this Court in Criminal Appeal No. 1008/2011 (Mohd. Wasim v/s. State).

Information furnished by Appellant, on verification by police was found to be correct and status report reveals that, as per record available, date of birth of Appellant is 14th July, 1995, incident took place on 13th May, 2013 and as such real age of Appellant/applicant at time of incident was less than 18 years (17 years, 9 months and 22 days).

Section 7A of Juvenile Justice (Care and Protection) Act, 2000 provides that, whenever a claim of juvenility is raised before any Court or a Court is of opinion that, an accused person was a juvenile on date of commission of offence, Court shall make an inquiry, take such evidence as may be necessary (but not an affidavit) so as to determine age of such person, and shall record a finding whether person is a juvenile or a child or not, stating his age as nearly as may be: provided that a claim of juvenility may be raised before any Court and it shall be recognized at any stage, even after final disposal of case, and such claim shall be determined in terms of provisions contained in this Act and the rules made thereunder, even if juvenile has ceased to be so on or before the date of commencement of this Act.

In view of law laid down that, plea of juvenility could be taken up by an accused at any stage of proceedings, even after disposal of case from Supreme Court, it leaves no option for this Court but to consider release of the petitioner from jail. Nominal roll indicates that, Appellant has already served more than four years in custody and as a juvenile, he could only have been sentenced for three years.

Clause 2 of Section 7A of Act provides that, if Court finds a person to be juvenile, on date of commission of offence, it shall forward juvenile to Juvenile Justice Board for passing appropriate orders and sentence if any, passed by a Court, shall be deemed to have no effect. Import of this provision is that, sentence awarded will have no effect and matter ought to be referred to Juvenile Justice Board for passing appropriate orders.

High Court considered desirability of sending Accused Appellant/applicant to Juvenile Justice Board so that necessary and sequel orders could have been passed. However, taking note of provisions in Section 15 of Act, that maximum period for which a juvenile can be sent to special home is 3 years, there does not appear to be any requirement of delaying release of Petitioner as he has already remained in jail for more than 4 years. Thus without disturbing conviction of Appellant, he is directed to be released forthwith from custody, if not required in any other case. Appeal and applications are disposed of.

Tags : Juvenility Plea custody Release

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Central Electricity Regulatory Commission

Warora-Kurnool Transmission Limited and Ors. v. Tamil Nadu Generation & Distribution Corporation Limited and Ors.

MANU/CR/0101/2017

24.05.2017

Electricity

Specific prior approval of Commission is required for assigning licence to nominee of Security Trustee or transfer of any assets to them

First Petitioner, Warora-Kurnool Transmission Limited, has been granted transmission licence under Section 14 of the Electricity Act, 2003 to transmit electricity as a transmission licensee. Warora-Kurnool Transmission Limited and IDBI Trusteeship Services Limited have filed a combined petition for creation and enforcement of security in favour of IDBI Trusteeship Limited as Security Trustee for benefit of lender (including Yes Bank), as security for financial assistance provided/agreed to be provided by such lender (including Yes Bank and each of novates, transferees and assignees of lender) for part financing the project. Petitioners prayed for approval to create security interest, over immovable assets of the project, cash flows, receivables, bank accounts, TSA, project assets, clearances, approvals and all other project documents/clearances including but not limited to any amendments, supplements to the existing project documents and the transmission licence in favour of Security Trustee, including recognition of right to appoint Commission's approved nominee in event of enforcement of security interest in TSA and Transmission Licence. Further, prayer is to approve Security Documents execution, for creation and/or perfection of aforesaid Security Interest annexed at Annexure IV hereto in favour of IDBI Trusteeship Services Limited, in its capacity as Security Trustee, for benefit of lenders including for enforcement thereof in accordance with terms of finance documents.

Transmission projects are capital intensive projects requiring huge capital investment. These projects are financed through loans. It is a normal practice followed by financial institutions/banking industry to ask for sufficient security from borrower to back loan in order to mitigate credit risk of lenders. In instant case, First Petitioner and lender, Yes Bank have appointed Second Petitioner, namely IDBI Trusteeship Services Limited as Security Trustee for creation of security over all movable and immovable assets of project for financing of project. Accordingly, Security Trustee Agreement and Rupee Facility Agreement dated 22nd March, 2017 have been executed for a loan of Rs. 2790 crore with capex LC sub-limit to the extent of Rs. 1400 crore and 110 crore as Performance Bank Guarantee. In accordance with Article 15.2 of TSA, Transmission Service Provider has been allowed to create an encumbrance over all or part of receivables, Letter of Credit or other assets of project in favour of lenders or representatives of lenders, as security for amounts payable under Financing Agreements and other amounts agreed by parties.

As per Section 17(3) and (4) of Electricity Act, 2003, a licensee is required to obtain approval of Commission for assigning his licence or transfer its utility or any part thereof by way of sale, lease, exchange or otherwise and to enter into an agreement relating to any of these transactions. IDBI Trusteeship Service Limited as Security Trustee needs to be given comfort for creation of security for benefit of banks/financial institutions/non-banking financial companies as security for financial assistance provided by the lender. Commission, therefore, accord in principle approval allowing First Petitioner to create security in favour of IDBI Trusteeship Service Limited, presently acting as Security Trustee pursuant to Security Trustee Agreement by way of mortgage and/or hypothecation and/or assignment and/or substitution and/or charge, as case may be, on project assets by execution of indenture of mortgage for project. It is, however, made clear that, transmission licence granted by Commission to First Petitioner and underlying assets cannot be assigned in favour of nominee of Security Trustee unless prior approval of Commission is obtained at time of creating rights in favour of such nominee. Before agreeing to transfer licence and assets of first Petitioner to nominee of Security Trustee, Commission shall evaluate such a nominee's experience in development, design, construction, operation and maintenance of transmission lines, and to be able to execute the project and undertake transmission of electricity. Licensee, lenders, security trustee and nominee, accordingly, shall be jointly required to approach Commission for seeking approval. This will give an opportunity to Commission to satisfy itself of circumstances necessitating such transfer.

Decision of Commission is in accordance with Regulation 12 of Central Electricity Regulatory Commission (Procedure, Terms and Conditions for grant of Transmission Licence and other related matters) Regulations, 2009. As per Regulation, in case of default by licensee in debt repayment, Commission may, on an application made by lenders, assign licence to a nominee of lenders." Accordingly, in case of default by licensee in debt repayment, Commission may, on a joint application made by licensee, lenders, Security Trustee and nominee, approve assignment of licence to a nominee of lenders subject to proper due diligence of process. Therefore, specific prior approval of Commission for assigning licence to nominee of Security Trustee or transfer of any assets to them shall always be needed. Lastly, finance documents and statements may be filed by first Petitioner as and when required by Commission for any specific purpose.

Tags : Approval Security Creation

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High Court of Delhi

Innovative Cargo Services v. Commissioner of Customs (General)

MANU/DE/1464/2017

23.05.2017

Customs

CESTAT had no jurisdiction to extend time already set down in Customs Broker Licensing Regulations, 2013

In fact of present case, Appellant is a Customs Broker holding Customs Broker Licence valid till 2018. Appellant is engaged in customs clearance work within in jurisdiction of Delhi Commissionerate and adjoining Inland Container Deport (ICD), Tughlakabad. In March 2016, Directorate of Revenue Intelligence ("DRI") initiated an investigation into exports effected by one Mr. Ramesh Wadhera and his son Mr. Rahul Wadhera on ground that, they indulged in fraudulent availment of drawback by exporting inferior and sub-standard quality readymade garments of different kinds through various bogus firms and by resorting to over invoicing of goods.

In course of search on premises of Mr. Ramesh Wadhera and Mr. Rahul Wadhera on 18th March 2016 by DRI, details emerged of various CHAs who had filed shipping bills for them, and this included Appellant. Five months later, DRI by a letter dated 24th August 2016 forwarded a report to Commissioner of Customs (General), New Delhi, Respondent. On basis of said report, Respondent by impugned order ordered immediate suspension of Appellant's licence for alleged violation of Regulations 11(a), (d), (e) and (n) of CBLR 2013. This suspension order was later confirmed by Order-in-Original. In interregnum, on basis of investigation of DRI, Commissioner of Customs (Export), ICD, Tughlakabad, New Delhi issued to exporters a SCN dated 16th September 2016 proposing confiscation of alleged over-invoiced goods. Name of Appellant was also included in SCN for purpose of imposition of penalty in respect of exports of six exporters.

Aggrieved by suspension of its licence, Appellant filed an appeal under Section 129A of Act read with Regulation 21 of Customs Broker Licensing Regulations 2013 ("CBLR 2013"). CESTAT directed concerned authorities to issue show cause notice within 15 days and complete proceedings within prescribed time limit of three months thereafter by passing a speaking and reasonable order.

In its rejoinder, Appellant pointed out that, after confirmation of suspension order dated 27th September 2016, Respondent took no action under Regulation 20 and thereby contravened time limits set under CBLR 2013. It was further stated that, Circular No. 9/2010, dated 8th April 2010 which was issued in context of Custom House Agents Licensing Regulation, 2004 (CHLR 2004) equally applied to CBLR 2013 which replaced it. It is submitted that, CESTAT travelled beyond its jurisdiction under Section 129B of Act, in granting time to Respondent to complete investigation. It is further pointed out that, Respondent received intimation qua the offence report on 24th August 2016 and, therefore, that should be date of communication of offence report and not the letter dated 11th April 2017 subsequently written.

After suspension order was affirmed in terms of Regulation 19 of the CBLR 2013 by order dated 27th September 2016, no steps were taken by Respondent in terms of Regulation 20 of CBLR 2013. This required a SCN to be issued within 90 days from date of receipt of offence report. In present case, SCN was issued only subsequent to impugned order of CESTAT on 30th April 2017.

Court is unable to accept contention of Respondent that, letter dated 11th April 2017 received from ICD, Tughlakabad enclosing therewith a copy of earlier SCN dated 16th September 2016 issued by exporter as well as Appellant should be taken as receipt of "final offence report". This is a plain misreading of facts. As rightly pointed out by Appellant, if at all, date has to be ascertained for communication of "offence report" it has to be letter dated 24th August 2016 on which date received from DRI regarding alleged illegal export.

CESTAT had no jurisdiction to extend time already set down in CBLR 2013. Those time limits are sacrosanct as explained by Court in several decisions including Indair Carrier Private Limited v. Commissioner of Customs (General), Commissioner v. S.K. Logistics and Overseas Air Cargo Services v. Commissioner of Customs (General), New Delhi.

Above legal position was reiterated recently by Court in its order dated 9th May 2017 (M/s. A.P. Enterprises v. The Commissioner of Customs (General)) where in similar circumstances, Court sets aside order of CESTAT granting three months time to Department to complete investigation. Accordingly, it is held that, CESTAT was in error in directing authorities to issue SCN within 15 days and complete investigation within a further period of three months thereafter contrary to CBLR 2013. Impugned order of CESTAT is accordingly set aside and appeal is allowed.

Relevant

Indair Carrier Private Limited v. Commissioner of Customs (General)MANU/DE/1146/2016
: 2016 (337) ELT 41 (Del), Commissioner v. S.K. Logistics MANU/DE/1552/2016
: 2016 (337) ELT 39 (Del) and Overseas Air Cargo Services v. Commissioner of Customs (General), New Delhi MANU/DE/1698/2016
(340) ELT 119 (Del)

Tags : Direction Notice Validity

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