Supreme Court

Abdul Kuddus Vs. Union of India (UOI) and Ors.

MANU/SC/0780/2019

17.05.2019

Constitution

When issue of nationality has already been determined under Foreigners (Tribunals) Order, 1964, an appeal would not be maintainable

Present order decides perceived conflict between sub-paragraph (2) to paragraph 3 and paragraph 8 of the Schedule to the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003 (the 2003 Rules). It is urged on behalf of the Appellants that, an order of the Foreigners Tribunal is an executive order which renders an opinion and therefore, it cannot be equated with a judgment.

It is highlighted that in some cases, persons who have been declared to be a foreigner under the Foreigners Act have been included in the draft National Register of Citizens for the State of Assam, while in others siblings and close blood relations of such persons have been named in the draft National Register of Citizens. It is averred that in these cases of contradictions, an aggrieved person should be entitled to take recourse to paragraph 8 of the Schedule to the 2003 Rules.

The Foreigners Act and the Citizenship Act including the Rules framed under the two Acts have to be read harmoniously as both the Acts are inter-related and sister enactments. The opinion/order of the Tribunal, or the order passed by the Registering Authority based upon the opinion of the Foreigners Tribunal, as the case may be, can be challenged by way of writ proceedings. Thus, it would be incorrect to hold that, the opinion of the Foreigners Tribunal and/or the consequential order passed by the Registering Authority would not operate as res judicata. Both the opinion of the Tribunal and the Order of the Registering Authority result in determination of rights/status under the statute and by an authority after a contest on the merits which would necessarily operate as a bar to subsequent proceedings before the same authority for re-determination of the same issue/question.

A person aggrieved by the opinion/order of the Tribunal can challenge the findings/opinion expressed by way of a writ petition wherein the High Court would be entitled to examine the issue with reference to the evidence and material in the exercise of its power of judicial review premised on the principle of error in the decision-making process, etc. This serves as a necessary check to correct and rectify an 'error' in the orders passed by the Tribunal.

There could be contradicting decisions/opinions of Foreigners Tribunal even in cases of near family members. Contradictions can be avoided when 'family tree hearing' are held. In the absence of joint decisions, conflict is possible as the principle of res judicata would not apply to separate proceedings even if against two closely related but different persons. There is a possibility that, some/one of the near family members may have migrated to India prior to midnight of March 24, 1977 and, therefore, fall in a different category. Any such conflict, however, would not compel to take a different view, in terms of the clear statutory provisions. In a given case, the person aggrieved would have liberty to invoke writ jurisdiction, or review jurisdiction before the High Court or present Court.

Where the issue and question of nationality has already been determined under the Foreigners (Tribunals) Order, 1964, an appeal would not be maintainable under paragraph 8 of the Schedule to the 2003 Rules. The determination would be final and binding on the Registering Authority under the Schedule and the Local Registrar. Paragraph 8 does not envisage and provide for a second round of litigation before the same authority i.e. the Foreigners Tribunal constituted under the 1964 Order on and after preparation of the final list.

Provisions of paragraph 8 of the Schedule to the 2003 Rules will apply when there has not seen an earlier adjudication and decision by the Foreigners Tribunal. The contention of the Appellants on the perceived conflict pertaining to the adjudication on the citizenship status of persons rejected.

Tags : Citizenship Status Adjudication

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Central Information Commission

Neeraj Sharma Vs. CPIO, Reserve Bank of India

MANU/CI/0213/2019

15.05.2019

Right to Information

Authorities are entitled to claim exemption when disclosure of information risks possibility of its misuse

In facts of the present case, the Appellant filed an application under the Right to Information Act, 2005 (RTI Act) before the Central Public Information Officer (CPIO), seeking the information. Not satisfied with the response of the CPIO, the Appellant filed first appeal. The First Appellate Authority disposed of the first appeal vide order.

The Appellant has filed the instant appeal on the grounds that, the information has been wrongfully denied by the CPIO whereas in present case, disclosure of the information outweighs the protected interest of wrong doers who have conspired in compromising the financial data of huge number of citizens. He requested the Commission to direct the concerned CPIO to supply complete information sought by the Appellant and impose penalty as per Section 20 of RTI Act. He also requested the Commission to direct the public authority to make entry in service book/annual performance appraisal report of the CPIO for defying the provisions of the Act.

The Respondent submitted that, forensic investigation was conducted by ATM service provider M/S. Hitachi and a copy of the report was received by the Reserve Bank of India (hereinafter called the RBI). However, the report is confidential in nature and contains information about how the hackers entered the infrastructure, the patterns that were hacked, the future measures that may be formulated for security purposes. The disclosure of the above mentioned report would leak crucial information risking possibility of misuse of such information by hackers for illegal activities. The security strategies of the RBI and other bank would be compromised upon disclosure of details of the report. Therefore, the information was denied under section 8(1)(a) and (d) of the RTI Act. The Respondent stated that the disclosure of the names of the banks wherein the cards were misused would cause panic within the customers and the general public.

It is only in public interest that the security strategies and measures are safeguarded by the RBI. The risk involved in disclosure of the report overrides the requirement of its availability in the public domain. The case relied upon by the Appellant is distinguishable as the exemption is claimed u/s. 8(1)(a) & (d) and not u/s. 8(1)(e).

The authorities have claimed exemption by virtue of the provisions under Section 8(1)(a) and (d) of the RTI Act. The presumption that the legislature understands the needs of its people and that even its discrimination and classifications are based on adequate grounds has been acknowledged by the Supreme Court itself. The logic of balance exercise of judicial power has an assurance of institutional stability and re-organization of boundary of power is implicit in the Constitutional arrangement.

There have been plethora of judicial orders highlighting the issue of restraint by judicial bodies in substituting their wisdom over those who have been assigned the function of implementation of Laws. The Commission after adverting to the facts and circumstances of the case, hearing both the parties and perusal of records, feels that due reply has been given by the Respondent. Accordingly, the appeal is dismissed.

Tags : Information Disclosure Public interest

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High Court of Chhattisgarh

Uttam Kumar Pandey Vs. State of Chhattisgarh and Ors.

MANU/CG/0278/2019

14.05.2019

Criminal

For issuance of writ of quo warranto, appointment has to be contrary to statutory rules

The Petitioner, himself a lawyer, would seek quashment of the appointment of Respondent No. 3 on the post of Deputy Advocate General by issuance of writ of quo warranto. Challenge to the appointment of Respondent No. 3 is based on the ground that, at the time when Respondent No. 3 was elected and working as Joint Secretary of the High Court Bar Association, he displaced and removed the name plates of the advocates, which they have put over the tables/chairs in the common hall of the Advocate Chambers.

When Respondent No. 3 was committing this wrongful action, the Petitioner protested upon which the said Respondent used his muscle power and beat the Petitioner with the help of other advocates, at the same time using filthy abuses and criminally intimidating him. On Petitioner's report, Crime was registered by the concerned police for offence under Sections 294, 506, 323/34 of the Indian Penal Code, 1860 (IPC) and the trial is pending against him before the Judicial Magistrate.

On Respondent No. 3 being appointed as Deputy Advocate General vide State Government's order, the Petitioner submitted a representation to the Advocate General and the Secretary, Law and Legislative Affairs Department, however, no action has been taken. It is argued that, Respondent No. 3 lacks institutional integrity attached to the office of Deputy Advocate General and appointment has been made without effective consultation with the Advocate General.

It is settled law that, for issuance of writ of quo warranto, the High Court has to satisfy that the appointment is contrary to the statutory rules. In view of this settled legal position, it was necessary for the Petitioner to place on record the statutory rules or even circulars providing statutory norms for appointment as Deputy Advocate General. The power of judicial review, even when it is very restricting, cannot be denied to be exercised without adverting to the relevant fact.

It is noticed that offences allegedly committed by Respondent No. 3 is only under Sections 294, 506 and 323/34 of the IPC. The incident happened when he was Joint Secretary of the High Court Bar Association. It is not a case of cheating, fraud or rape. Quashing appointment on this ground therefore does not appear to be proper. Except one criminal case for an incident which had happened in the Bar Room, no other fact or proceeding in respect of integrity of Respondent No. 3 has been brought to the notice of this Court. Petition dismissed.

Tags : Appointment Legality Writ Issuance

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High Court of Chhattisgarh

Sameer Nijhawan Vs. State of Chhattisgarh and Ors.

MANU/CG/0288/2019

14.05.2019

Commercial

Licencing authority is empowered to cancel a licence on breach of terms or conditions thereof by the holder

Facts of the case, are that at the relevant time, the Petitioner was holding a licence in form FL-2 popularly known as beer bar licence to operate the said bar at his hotel named as 'Tandoor Bar'. The licence was granted to the Petitioner for a period of one year ending on 31st March, 2018. On 8th February, 2018, a show cause notice was issued to the Petitioner stating, that on inspection of the bar by the Assistant District Excise Officer, certain irregularities were found regarding non-production of permit of the stock available at the bar and further that certain beer of different batch numbers other than the batch allotted in the permit, was found in the stock, attracting violation of terms of licence punishable under Section 39 (a) (c) of the Chhattisgarh Excise Act, 1915.

The Petitioner was instructed to show cause as to why action should not be taken under Rule 23 (1) of the Chhattisgarh Excise Settlement of Licences for Retail Sale of Country/Foreign Liquor Rules, 2002 (Rules, 2002) read with Section 31 (b) of the Act, 1915.

The Collector (Excise) was not satisfied with the explanation offered by the Petitioner, therefore, the licence was cancelled on the ground that, permit was not presented to the Divisional Flying Squad, when raid/inspection was carried and that the stock of liquor was having different batch number than the one purchased by the petitioner. This was in violation of condition No. 5 of the licence, therefore, the same being serious in nature the licence deserves to be cancelled. Petitioner is habituated in violating the terms of licence. The order passed by the licencing officer has been affirmed by the Excise Commissioner under the order impugned.

Section 31(1-A) of the Act, 1915 makes it incumbent on the authority to record in writing the reasons for the proposed action, furnish to the holder thereof a brief statement of the same and afford him a reasonable opportunity of being heard. The show cause notice issued to the Petitioner categorically records the reason as to the grounds on which the Petitioner is liable to be proceeded for imposition of punishment under Section 31 (1) (b) of the Act, 1915. The said provision empowers the licencing authority to cancel or suspend a licence when any of the terms or conditions thereof have been breached by the holder or his servant or agent. When the show cause notice was replied by the Petitioner, no ground was raised alleging violation of principles of natural justice or that the servant or agent available in the shop was not authorized by the Petitioner.

Once it is found that, the Petitioner had no cogent reply to offer to the grounds for initiating action against him, as mentioned in the show cause notice, the licencing officer was fully justified in proceeding to take action in accordance with the provisions of Section 31 (1) (b) of the Act, 1915. The Petitioner having not sought for copy of the report, the plea of violation of principles of natural justice appears to be after thought. Such plea is not sustainable because the show cause notice would categorically mention the reasons for the proposed action.

At the time of raid/inspection by the Flying Squad Team, the Petitioner's agent was present in the licenced premises and had admitted by writing that 'charges admitted' and putting his signature thereunder. It is not the case of the Petitioner in his reply to the show cause notice that, the authorized agent was misled or pressurized by the Excise Officer. The Petitioner has not made out a case for interference of this Court under Article 226 of the Constitution of India. Petition dismissed.

Tags : Notice licence Cancellation

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High Court of Delhi

Sourav Sharma Vs. Neetu Sharma

MANU/DE/1652/2019

14.05.2019

Criminal

Appeal or revision cannot be dismissed solely on ground of failure to pre deposit maintenance amount

Petitioner impugns order whereby the Appellate Court has dismissed the appeal of the Petitioner on the ground that, Petitioner has failed to deposit the entire arrears of maintenance despite several opportunities. Appellant has filed an appeal impugning order, whereby Trial Court had directed the Petitioner to pay monthly maintenance of Rs. 35,000 per month. Petitioner failed to pay the said amount and coercive steps were sought to be taken by the Trial Court. Impugning the said order, Petitioner filed an appeal before the Appellate Court which was dismissed by the impugned order.

As per the judgment of the Division Bench in Sabina Sahdev, in case the amount as directed by the Revisional/Appellate Court is not deposited, a revision under Section 399 read with Section 401 CrPC and an appeal under Section 29 of the DV Act against the order granting maintenance under Section 125 CrPC and Section 23 of the DV Act respectively, would be maintainable and would be entertained and heard without any pre-condition of deposit of the arrears of maintenance as ordered by the MM.

The Division Bench held that, mere pendency of the revision or an appeal, as the case may be, shall not operate as stay of the operation of the order granting interim maintenance. The Division Bench has held that, appeal or revision cannot be dismissed solely on the ground of failure to pre deposit the maintenance amount and the same would have been decided on merits.

The Appellate Court by the impugned order has dismissed the appeal solely on the ground of failure to pre deposit the maintenance amount which is contrary to the law as laid down in Sabina Sahdev. Impugned order is not sustainable and is accordingly set aside. Petition is allowed.

Tags : Maintenance Pre-deposit Arrears

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High Court of Kerala

State of Kerala Vs. Prabha C. Sekhar and Ors.

MANU/KE/1593/2019

14.05.2019

Criminal

Bail once granted should not be cancelled in a mechanical manner without considering supervening circumstances

In present case, the 1st Respondent herein is a teacher. Alleging that she was involved in Crime registered under Sections 454 and 381 read with Section 34 of the Indian Penal Code, 1860 (IPC), a report was submitted before the learned Magistrate. She approached the learned Sessions Judge with a petition seeking anticipatory bail. The same was allowed by the Court below on stringent conditions by order. The instant petition is filed by the State with a prayer to quash the above order.

The judicial discretion was correctly exercised by the Court below. It was on relevant considerations that, the 1st Respondent was granted an order of pre-arrest bail by the court below. The 1st Respondent has been co-operating with the investigation from the registration of the crime in the year 2014. The prosecution has no case that the 1st Respondent herein had attempted to interfere with the investigation or thwart the course of justice.

In Dataram Singh v. State of Uttar Pradesh, Supreme Court had occasion to observe that, there is difference between yardsticks for cancellation of bail and appeal against the order granting bail. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of bail already granted. It was held that, the grounds for cancellation of bail are interference or attempt to interfere with the due course of administration of justice, evasion or attempt to evade the due course of justice or abuse of the concessions granted to the accused in any manner. The satisfaction of the Court on the basis of the materials placed on record of the possibility of the accused absconding is another reason justifying the cancellation of bail.

Bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have been available or not. The 1st Respondent, being a lady and also a teacher, was rightly extended the benefit of pre-arrest bail by the court below. This petition will stand dismissed.

Relevant

Dataram Singh v. State of Uttar Pradesh [MANU/SC/0085/2018
]

Tags : Bail Grant Legality

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