Judgments

High Court of Bombay

Pintu Uttam Sonale Vs. The State of Maharashtra

MANU/MH/2447/2019

29.08.2019

Criminal

Prisoners cannot claim the benefit of furlough leave as a matter of right

The Petitioner – Convict lodged in Nasik Road Central Prison, preferred the present petition seeking relief to quash and set aside the impugned order rendered by the Deputy Inspector of General Prison as well as appellate authority i.e. Additional Deputy General of Police and Inspector General Prison, rebuffing the relief of furlough leave and to allow him to avail the furlough leave on humanitarian ground.

It is not in dispute that, the Petitioner was convicted for the offence punishable under Section 376(2)(n) of the Indian Penal Code, 1860 (IPC) and Section 5(J)(ii) read with Section 6 of The Protection of Children from Sexual Offences (POCSO) Act, 2012.

Being dissatisfied with the findings of conviction, Petitioner filed the Criminal Appeal to redress his grievances. Unfortunately, his appeal came to be turned down by present Court and the conviction and resultant sentence awarded by the learned trial Court were made confirm and absolute. The Petitioner, since conviction, was put in the prison being convict of sexual offences.

The concerned Jail authorities have correctly invoked the provisions of Rule 4(6), 4(11), 4(13) and 4(18) of the Maharashtra Prisons (Bombay Furlough and Parole) Rules, 1959. There was notification published in Government Gazette on 26th August, 2016 for amendment in the Rules of 1959. The Rule 4 of Amendment Rules, 2016, postulates two classification of the prisoners, one is the prisoner, who are eligible to apply for furlough leave and another is not permissible to avail furlough benefit. This Court in various judicial precedents delineated that, the prisoners cannot claim the benefit of furlough leave as a matter of right. The Rule 17 contemplates that "nothing in these rules shall be construed as conferring a legal right on a prisoner to claim release on furlough."

Admittedly, the Petitioner has no legal right to claim the furlough leave. Moreover, he is the convict of sexual offence punishable under Section 376(2)(n) of IPC as well as under POCSO Act, 2012. In view of the notification dated 26th August, 2016, the Petitioner is not eligible for release on furlough.

It would be reiterated that, the Government of Maharashtra issued the notification dated 26th August, 2016 and refused to exercise powers to grant furlough to the prisoners convicted for the offence of rape. Therefore, there is no propriety to cause any interference in the impugned orders passed by the concerned Jail authority for rejecting the application of the petitioner to release him on furlough. Petition dismissed.

Tags : Right Furlough Grant

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High Court of Delhi

Kadimi International Pvt. Ltd. Vs. Emaar MGF Land Limited

MANU/DE/2828/2019

29.08.2019

Arbitration

Court will exercise its power under Section 11(6)(a) of Arbitration Act, only where a party fails to act in accordance with appointment procedure agreed between parties

The present petition under Section 11 of the Arbitration and Conciliation Act, 1996 challenges appointment of Mr. R.S. Baswana, District and Sessions Judge (Retired) as the sole arbitrator and further seeks appointment of an independent Arbitrator, in terms of Clause 35 of the Space Buyer Agreement. It was submitted that, the conduct of the Respondent in unilaterally appointing an Arbitrator despite Petitioner's categorical objections in its letter, raises justifiable doubts over the neutrality, independence and impartiality of the Arbitrator.

The Clause of agreement does not name an arbitrator. It merely confers the right to appoint an Arbitrator to the Respondent . The clause provides that "Sole Arbitrator shall be nominated by anyone of the Directors of the Company". Since, the right of appointment is with Respondent, which is a Company, it would have to vicariously take administrative decisions through its Directors. The Directors of the Company are empowered under the provisions of the Company's Act and/or Articles of Association to conduct the affairs of the Company. In this case, the right to make the appointment of an Arbitrator for and on behalf of the Respondent Company is conferred on its Directors.

After the amendment of the Act, the Court's power and its scope of enquiry, while exercising jurisdiction under Section 11 of the Act, has been limited and restricted. The Court will exercise its power under Section 11(6)(a) of the Act, only where a party fails to act in accordance with the appointment procedure agreed between the parties. Section 11 of the Act does not empower the Court to change the Arbitrator appointed by the parties in accordance with law.

While deciding on an application under the said Section, the Court has to only evaluate and examine the question regarding existence of an Arbitration agreement. It cannot embark upon the question as to whether a clause is unfair or unreasonable. If the invocation of Arbitration Clause is as per the terms of agreement between the parties, it would be the endeavor of Court to first explore whether the arbitration clause contained in the agreement can be implemented, as held by the Supreme Court in the decision of Union of India v. Parmar Construction.

Courts have now consistently proceeded to appoint an independent Arbitrator in situations where the arbitration clause is in conflict with the amended Arbitration Act. However, the unilateral right of party to appoint an Arbitrator has not been done away with. Only, the appointment of a person who is ineligible to be an Arbitrator under Section 12 (5) read with Schedule VII of the Act has been held to be void.

Respondent has appointed a retired District and Sessions Judge as an Arbitrator. If the Petitioner has any grievance regarding the impartiality and independence of the Arbitrator, the Petitioner is free to take recourse to the specific provisions contained in the Act that enable a party to challenge jurisdiction of the Arbitrator. These aspects cannot be examined in a Petition under Section 11 of the Act. Petition dismissed.

Relevant

Union of India v. Parmar Construction, MANU/SC/0445/2019

Tags : Appointment Arbitrator Legality

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Supreme Court

P. Chidambaram v. Directorate of Enforcement

MANU/SC/1209/2019

05.09.2019

Criminal

Anticipatory bail cannot be granted in economic offence cases as it hampers effective investigation

Present appeal relates to the alleged irregularities in Foreign Investment Promotion Board (FIPB) clearance given to the INX Media for receiving foreign investment to the tune of Rs.305 crores against approved inflow of Rs.4.62 crores. The High Court of Delhi rejected the Appellant’s plea for anticipatory bail in the case registered by Central Bureau of Investigation (CBI) under Section 120B read with Section 420 of Indian Penal Code, 1860 (IPC), Section 8 and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988.

By the impugned order, the High Court also refused to grant anticipatory bail in the case registered by the Enforcement Directorate punishable under Sections 3 and 4 of the Prevention of Money-Laundering Act, 2002.

Article 21 of the Constitution of India states that, no person shall be deprived of his life or personal liberty except according to procedure prescribed by law. However, the power conferred by Article 21 of the Constitution of India is not unfettered and is qualified by the later part of the Article i.e. “except according to a procedure prescribed by law.” In State of M.P. and another v. Ram Kishna Balothia and another, the Supreme Court held that, the right of anticipatory bail is not a part of Article 21 of the Constitution of India, 1950.

Power under Section 438 of Code of Criminal Procedure, 1973 (CrPC) being an extraordinary remedy, has to be exercised sparingly; more so, in cases of economic offences. Economic offences stand as a different class as they affect the economic fabric of the society. In Directorate of Enforcement v. Ashok Kumar Jain, it was held that in economic offences, the accused is not entitled to anticipatory bail.

Grant of anticipatory bail at the stage of investigation may frustrate the investigating agency in interrogating the accused and in collecting the useful information and also the materials which might have been concealed. Success in such interrogation would elude, if the accused knows that he is protected by the order of the court. Grant of anticipatory bail, particularly in economic offences would definitely hamper the effective investigation. Supreme Court is of view that, present is not a fit case to grant anticipatory bail.

In a case of money-laundering where it involves many stages of “placement”, “layering i.e. funds moved to other institutions to conceal origin” and “interrogation i.e. funds used to acquire various assets”, it requires systematic and analysed investigation which would be of great advantage. Section 438 of CrPC is to be invoked only in exceptional cases where the case alleged is frivolous or groundless. In the case in hand, there are allegations of laundering the proceeds of the crime. The Enforcement Directorate claims to have certain specific inputs from various sources, including overseas banks.

In view of nature of allegations and the stage of the investigation, the investigating agency has to be given sufficient freedom in the process of investigation. Grant of anticipatory bail to the Appellant will hamper the investigation and this is not a fit case for exercise of discretion to grant anticipatory bail to the appellant. The appeal is dismissed.

Tags : Anticipatory bail Grant Discretion

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Supreme Court

The State of Maharashtra and Ors. Vs. Moti Ratan Estate and Ors.

MANU/SC/1203/2019

04.09.2019

Land Acquisition

Interim stay granted in respect of one pocket of land would operate even with respect to other pockets of land

The State of Maharashtra have preferred the present appeals against impugned judgments passed by the High Court, by which the High Court has quashed the entire acquisition proceedings with respect to the acquired lands solely on the ground that, the acquisition has lapsed as the awards under Section 11 of the Land Acquisition Act, 1894 were not declared within a period of two years from the date of declaration made under Section 6 of the Act.

The moot question which arises for consideration is whether the stay of action/proceedings by some of the land holders prohibiting/preventing the State authorities to make the award under Section 11 of the Act, within a statutory period of two years provided under Section 11A of the Act from declaration under Section 6 of the Act would be equally extendable to the other alike cases of land holders/persons interested/Respondents in the instant case.

When the scheme of the acquisition is one, interim stay granted in respect of one pocket of land would operate even with respect to other pockets of land. In such a situation the authorities are justified in not proceeding with the acquisition proceedings and therefore, the acquisition proceedings would not lapse. Interim order of stay granted in respect of one of the land owners would have a complete restraint for the authorities to proceed further. When the stay has been granted in one matter and where the scheme was one, the authorities were justified to stay their hands.

The extended meaning of the words "stay of the action or proceedings under Section 11A of the Act" would mean that any interim effective order passed by the court which may come in the way of the authorities to proceed further. Explanation to Section 11A of the Act is in the widest possible terms and there is no warrant for limiting the action or proceedings, referred to in the explanation, to actions or proceedings preceding the making of the award under Section 11 of the Act and therefore the period of injunction obtained by the land holders staying the acquisition and authorities from taking possession of the land has to be excluded in computing the period of two years.

It is true that, there is no bar to have more than one declaration under Section 6 or the award under Section 11 of the Act, in reference to the self-same acquisition proceedings initiated. If there is a stay of the proceedings by a Court of law in any of the matter, that certainly prevents the authorities in taking its decision to complete the acquisition proceedings within the statutory period as mandated by law in passing of award within two years from the date of declaration under Section 6 of the Act.

The High Court has erred in quashing and setting aside the acquisition proceedings on the ground that, the same have lapsed as the award was not declared within a period of two years from the date of declaration under Section 6 of the Act. The High Court has committed a grave error in not excluding the period of interim stay granted by it in writ petition. Even grant of interim stay of possession would also save lapsing of the acquisition. The impugned judgments and orders passed by the High Court are hereby quashed and set aside. Appeals allowed.

Tags : Award Declaration Proceedings Quashing of

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Supreme Court

M.J. Thulasiraman and Ors. Vs. The Commissioner, Hindu Religious & Charitable Endowment Administration and Ors.

MANU/SC/1199/2019

03.09.2019

Trusts and Societies

Any property or money endowed for performance of any specific service or religious charity in a math or temple constitutes specific endowment

Present appeal is directed against judgment passed by the High Court, whereby the appeal filed by the Appellants under Section 70(2) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 was dismissed. The short issue before present Court relates to the nature of the institution called "Bakers Choultry" as well as the nature of the endowment it has been burdened with.

The genesis of this dispute lies in the year 1987, when the Appellants' predecessor-in-interest filed an application under Section 63(a) of the Act before the Deputy Commissioner, Hindu Religious and Charitable Endowments Administration Department, Madras for a declaration to the effect that the "Bakers Choultry" is a private property belonging to him, with a duty cast on him to perform certain private charities.

A "specific endowment" means any property or money endowed for the performance of any specific service or charity in a math or temple or for the performance of any other religious charity. As it is admitted that, in the present case, there is no question of performing the service in the temple or a math, the endowment in the present case must fall under the second category, i.e., it must be for the performance of a religious charity, to be a specific endowment. A "religious charity" has been defined to mean a public charity associated with Hindu festival or observance of a religious character. The second part of Section 6(16) of the Act clarifies that, there is no requirement for the public charity to be connected with a temple or a math.

In the present case, the rock inscription in the "Bakers Choultry", which governs the functioning of the choultry, provides for the feeding of Brahmins. This is clearly a charity which benefits the "public", in line with the holding of the aforementioned Constitution Bench decision of this Court.

The public charity described in the rock inscription, being associated with a religious festival, constitutes a religious charity as defined under the Act. Under Section 6(19) of the Act, the definition of "specific endowment" includes any money that has been endowed for the performance of a religious charity. In view of holding that, the rock inscription provides for a religious charity, it is sufficient to show that money has been endowed for the performance of the same for it to constitute a specific endowment under the Act.

While the word "endow", and the connected word "endowment", have actually not been defined under the Act, from their usage in the Act and judgments on the subject, it is clear that they relate to the idea of giving, bequeathing or dedicating something, whether property or otherwise, for some purpose. In the context of the Act, the purpose is with respect to religion or charity.

In the facts of the present appeal, the contents of the rock inscription are sufficient to hold that, there has been a valid divestment. The rock inscription clearly indicates that, the choultry is to be managed by the community of bakers, who will use the balance funds for the benefit of others. Further, the inscription also states that the managers do not have any power of alienation with respect to the choultry. In the present appeal, there has been a clear divestment of the right to receive a certain part of the income, with the inscription also stipulating a bar on the right of the manager to transfer the choultry.

Therefore, "Bakers Choultry", and the rock inscription therein, constitute a "specific endowment" as defined under the Act, and the same is not the private property of the Appellants. The well reasoned judgment passed by the High Court, impugned therefore warrants no interference. Appeal dismissed.

Tags : Specific endowment Institution Nature

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Supreme Court

Ram Khilawan Vs. Union of India (UOI) and Ors.

MANU/SC/1191/2019

02.09.2019

Service

Discharge proceeded without reference to Invalidating Medical Board cannot be sustained

The Appellant was enrolled in the Army as a Washerman. He was discharged from service on medical grounds on August 31, 1993. Appellant, aggrieved against the discharge, submitted statutory complaint wherein, the stand of the Appellant was that, no show-cause notice was given to him by the Commanding Officer who sanctioned discharge under Rule 13(3) Item III (v) of the Army Rules, 1954. Such statutory complaint was declined, on the ground that though the Appellant has given his option to serve in the sheltered appointment but no sheltered appointment was available commensurate with the trade to suitably employ in the public interest. Therefore, he was discharged under the provisions of Army Order 46 of 1980 read with Rule 13(3) Item III(v) of the Rules.

The Appellant filed writ petition before the High Court but subsequently on commencement of Armed Forces Tribunal Act, 2007, the writ petition was transferred to the Tribunal. The learned Tribunal found that, the Appellant was placed in permanent Low Medical Category BEE and was discharged from service on August 31, 1993 with only 05 years 11 months and 08 days of service.

The discharge of the Appellant was only under category Rule 13(3)(III)(iii) as he has been found medically unfit for further service. Clause (v) of Rule 13(3)(III) would be applicable in respect of all other classes of discharge which do not find mention in Rule 13(3)(III). The communication of discharge from the service is on the ground that, he has been placed in the Low Medical Category. Once he has been put in Low Medical Category, Clause (iii) of Rule 13(3)(III) would be applicable as such Clause alone deals with discharge if any personnel is found medically unfit for further service. There is no reference to Sub-clause (v) of Army Rule 13(3)(III) in the order of discharge. Still further, it is not the recital of a provision which is relevant to determine as to whether the personnel is discharged under Clause (v) or Clause (iii) of Rule 13(3)(III) of the Rules.

It is the object, language and the purport of the discharge which will be relevant to determine whether army personnel had been discharged under Clause (iii) or Clause (v). Since the discharge of the Appellant is covered by Clause (iii) of Rule 13(3)(III) of the Rules, as the discharge of the Appellant was only on the ground of his medical unfitness for further service, therefore, he could not be invalidated out of service without the recommendation of the Invalidating Board.

Therefore, discharge of the Appellant was not under the residual Clause (v) but under Clause (iii) of Rule 13(3)(III) of the Rules. Since the discharge has proceeded without reference to Invalidating Medical Board, such discharge is not legally sustainable. In terms of Clause (b) of General Principles of Army Order 46 of 1980, he is entitled to be retained for ten years being in the rank of personnel of Other Ranks. As a consequence thereof, the Appellant became entitled to pension in addition to disability pension which was granted to him for a period of five years. Appeals allowed.

Tags : Discharge Procedure Legality

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