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The Tribunal has been thorough with regards to facts and has done a commendable job in contractual facilitation while keeping disputes for future deliberation: Calcutta High Court

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The above-mentioned was opined by the Calcutta High Court in the case Gainwell Commosales Private Limited v. Minsol Limited, APO / 74 /2022 before the Honourable Justice Shekhar B. Sharaf on 15th December 2022. 

FACTS OF THE CASE

With the respondent, the petitioner entered into a “Contract for Supply of Gainwell High Wall Mining System” on May 10, 2019. The petitioner was required to provide a cutter module and a high-wall mining system. On June 26, 2021, the respondent submitted an application under Section 17 of the Act, asking the Tribunal to appoint an impartial third party, technical person, or representative of Caterpillar Inc., in whose presence the HWM System and cutter module would be inspected and tested.

The petitioner’s representative, Mr S. N. Mitra, a knowledgeable senior counsel, has presented the following arguments: A bank guarantee for payment of 50% of the basic contract value and 100% of the taxes and duties to be paid against despatch of the HWM System could not have been added by the Tribunal. According to the Agreement, the aforementioned payment was to be given without any restrictions upon shipment. Such a requirement is outside the scope of the contract, so the Tribunal was unable to fulfil it, even after noting that it was unable to rewrite the Agreement.

JUDGEMENT OF THE CASE

The Court looked into the following issues-

Whether the Tribunal violated the Agreement when it issued the contested order? Whether the contested order should be annulled?

The petitioner strenuously argued before the Court that the Impugned Order was issued by the Tribunal in flagrant disregard of the Agreement because no bank guarantee was required for the payment that was due at the time of despatch. There are no limitations, in the Court’s view, that limit the Tribunal to adhere to the contract alone while providing temporary relief. As long as the relief does not directly violate the contract, the broad powers granted under Section 17 of the Act are intended to prevent the arbitral processes from becoming infructuous.

Without naming any parties at fault, the impugned order describes the dispute’s background in great detail. The Tribunal has mentioned the concerns of both parties in the section where it discusses the payment of 50% of the basic contract value plus 100% of taxes and duties payable on the HWM System. The apprehensions are, however, only briefly detailed for each side. The implication that neither party received a chance is not made by this.

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JUDGEMENT REVIEWED BY SAYANTANI RAKSHIT

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EVEN THOUGH THEY MAY BE “PUBLIC SERVANTS” WITHIN THE MEANING OF THE KL ACT, THEY ARE NOT “GOVERNMENT SERVANTS” WITHIN THE MEANING OF THE SAID ACT AS WELL AS CCA RULES SAYS: KARNATAKA HC

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In this matter S G Padmanabha vs State Of Karnataka on 22 November, 2022( W.P. No.50413 OF 2019 (GM-KLA)) presided by THE HON’BLE MR. JUSTICE ALOK ARADHE AND THE HON’BLE MR.JUSTICE S. VISHWAJITH SHETTY stated that this w.p. it is listed under article 226 of the constitution of india, we pray to call the entire records resulting in the inquiry order dated 26.04.2016 of the govt.0dqua9. government order dated 26.04.2016 (as per annexure to w.p.) issued r-1, (ii) inquiry report on 31.08.2019 (according to appendix-p to w.p.) of detector a (iii) recommendation on 09.09.2019 (according to appendix-q to w.p.) r- 

FACTS OF THE CASE 

The petitioners who are Assistant Engineer and Assistant Executive Engineer of the Karnataka Slum Development Board (hereinafter referred to as the Board) have challenged the validity of the Government Order dated 26.04.2016 issued by the Government of Karnataka and the Inquiry Report dated 31.08.2019 as well as the recommendation dated 09.09. 2019 submitted by Upalokayukta-1 and provide all consequential benefits to the petitioners. In order to consider the grievances of the appellants, the relevant facts are to be stated which are given below. Petitioner No. 1 joined the service of the council on 01.03.1989 as an assistant engineer and with effect from 10.11.1999 he was promoted to the position of assistant executive engineer. Petitioner No. 1 was further promoted to executive engineer with effect from 02/21/2011. At the relevant time, petitioner No.1 was posted at Dharwad. Petitioner No. 2 joined the service of the erstwhile Board on 8.12.1987 as Junior Engineer and was promoted to Executive Engineer with effect from 22.9.2000. Petitioner No. 2 was further promoted to Assistant Executive Engineer and was posted at Dharwad. Smt.Pramila Kotari and Sri.Ranganaika Tapela filed two complaints before the Karantaka Lokayukta that the petitioner no.2 in connivance with the land mafia committed certain irregularities in relation to the integrated slum development project. Petitioner No. 2 then submitted a detailed reply to the Inspector of Police giving the details of project execution and layout of houses. The Inspector of Police conducted the investigation and after a thorough investigation he gave a report that no irregularities were committed by the petitioner no.2 and one K.A.Bashir Ahmed another executive engineer compiled the list of beneficiaries. The Lokayukta was not satisfied with the reply submitted by the Inspector of Police and issued notice on 22.01.2015 to petitioner no.1 and one Sri.H.K.Sudhir. The Lokayukta filed a report under Section 12(3) of the Act dated 11.03.2016. The State Government then, by a resolution dated 26.04.2016, authorized the Lokayukta to investigate. Based on the aforesaid mandate, respondent No. 3 vide order dated 08.06.2016 appointed an additional employee registrar to assess the fees and conduct the enquiry. The petitioners were then issued a charge sheet on 27/07/2016. The petitioner filed a response to the indictment. The investigator submitted a report dated August 31, 2019. Upalokayukta by recommendation dated 09/09/2019 ordered the recommendation to impose the penalty of compulsory retirement. The State Government subsequently realized that it did not have disciplinary powers against the petitioners and therefore made a recommendation to the Council in a communication dated 18.10.2019. The petitioners subsequently filed a motion to set aside the order dated 26.04.2016 issued by the State Government, a copy of the inquiry report dated 13.08.2019 and the recommendation dated 09.09.2019 by the UpaLokayukta. In the above factual background, this petition arises for our consideration. 

JUDGMENT 

However, the Council has the right to consider the report submitted by the Upalokayukta dated 31.08.2019 under Section 12(3) of the Act and take the appropriate decision in accordance with the Act within a period of three months from the date of receipt. certified copy of the order received today. Accordingly, the suit is disposed of. 

 

 

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JUDGEMENT REVIEWED BY HARSHA L NALWAR

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THOUGH THERE IS NO HARD AND FAST RULE AS TO HOW MUCH TIME SHOULD BE TAKEN BY THE COMPETENT AUTHORITY OR THE GOVERNMENT FOR CONSIDERING THE REPRESENTATION, THE TIME TAKEN BY THE STATE GOVERNMENT TO CONSIDER THE PETITIONER’S REPRESENTATION IN THE PRESENT CASE IS INORDINATE AND CANNOT BE CONSIDERED AS REASONABLE: SAYS KARNATAKA HC

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In the matter of Mohammed Riyaz vs The State Of Karnataka on 22 November, 2022(W.P.H.C. No.74/2022) presided by THE HON’BLE MR. JUSTICE S.VISHWAJITH SHETTY stated that this writ petition is filed under articles 226 and 227 of the constitution of India praying for the vacation of the car order on 10.02.2022 stated by respondent no.2 in no.Mag/02/mgc/2022 which is produced at annexure-a and annexure-a1. 

FACTS OF THE CASE 

Writ in the nature of Habeas Corpus by 

cancellation of the confirmation order dated 29.03.2022 received by respondent No. 1 in H.D. 53 of SST 2022, Bengaluru which is produced at Annexure-F in the interest of justice. 

  1. d) A writ in the form of Habeas Corpus directing the respondents to, in the interests of justice, settle the freedom of Mohammed Nawaz @ Pinky Nawaz @ Nawaz by immediately releasing him from prison.
  2. e) In the interests of justice, any other order or order may be made as subsequent

He heard the learned counsel for the petitioner and also the learned public prosecutor for the respondent. The brief facts of the case, as it appears from the records, that may be necessary for the purposes of handling this motion, are that respondent No. 2 issued a detention order dated 02/10/2022 pursuant to Section 3(1) and (2) of the Criminal Code. The Karnataka Prevention of Dangerous Activities of Smugglers, Drug Offenders, Gamblers, Goondas, Immoral Traffic Offenders, Slum Catchers and Video or Audio Pirates Act, 1985 (in short “the Act”) against a detainee on the ground that the detainee is involved in a number of criminal matters and who is released on bail, continued his anti-social activities that caused a disturbance of public order, and therefore to control his activities and prevent the detainee from acting in any way that threatens the preservation of public order, it is necessary to issue a detention order against him. The said detention order was followed by a correction dated 15.02.2022 and the detention of the detainee was shifted to Bengaluru Central Jail from Mangaluru District Jail. Thereafter, the State Government on 17.02.2022 approved the detention order passed by respondent no.2 and a copy of that order was served on the detenu on 18.02.2022 along with a paper book which contained the documents relied upon by the competent. authority when issuing a detention order. In accordance with § 10 of the Act, respondent No. 1 submitted an order and reasons for detention to the advisory council on 02/23/2022. The detainee filed an objection against the detention order dated 07.03.2022 to the Detaining Authority, State Government and Advisory Board through the Superintendent, Central Jail, Bengaluru. The reinsurance authority rejected the said statement on 15 March 2022. The Advisory Board, after hearing the detainee and after referring to the consideration of the detainee’s representation, submitted its report on 23.03.2022 to the State Government stating that there is sufficient cause for the detention of the detainee and on receipt of such report, the State Government in exercising of its powers according to § 12 of the Act, adopted a confirming order on 29 March 2022. Subsequently, on 06.09.2022, the petitioner filed this claim. While waiting for the proposal to be submitted, the state government considered the representation of the detenue and rejected it by resolution dated 09/20/2022. On November 5, 2022, the respondents submitted their statement of objections, in which they deny all the claims made in the proposal and claim that the contested detention order was issued in accordance with the law and the respondents met the requirements of the law. It is further stated that the petitioner figures in as many as 15 criminal cases which include offenses punishable under Sections 307, 302 IPC etc. and after being released on bail in the above cases he has continued his illegal activities and accordingly prayed for dismissal of the petition . 

JUDGMENT 

THE HON’BLE MR. JUSTICE S.VISHWAJITH SHETTY observed that:- 

Since the representation of the detenue was not considered by the State Government within a reasonable time and was dismissed only after the filing of this writ petition, we are of the view that there has been a violation of the vested rights. after detention under Article 22(5) of the Constitution of India and therefore the continuation of the detention order is illegal. Accordingly, the writ petition succeeds and we pass the following order. Writ Petition is allowed. Detention Order dated 10.02.2022 in Annexure-A & A1, Detention Approval Order dated 17.02.2022 in Annexure-C and Confirmation dated 29.03.2022 in Annexure-F are cancelled. We direct that the detainee/Mahammed Riyaz be released from Bengaluru Central Jail with immediate effect unless required in connection with any other case. 

 

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JUDGEMENT REVIEWED BY HARSHA L NALWAR 

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IF THE PETITIONER IS WILLING TO SUBMIT THE DOCUMENTS TO THE AUTHORITY, AS INFORMED BY THE AUTHORITY AND REFERRED TO IN THE COMMUNICATION, THEN THESE DOCUMENTS MAYBE SUBMITTED BEFORE THE AUTHORITY WITHIN 10 DAYS FROM TODAY. IF THE PETITIONER FAILS TO SUBMIT ANY DOCUMENT WITHIN ONE WEEK FROM TODAY, THE RESPONDENTS/AUTHORITIES ARE AT LIBERTY TO TAKE DECISION ON THE APPLICATION OF THE PETITIONER ON THE MATERIAL WHICH IS AVAILABLE WITH THE AUTHORITY SAYS KARNATAKA HC

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In the matter of Sri K R Narappa vs The Principal Secretary on 23 November, 2022(WRIT PETITION NO.21215 OF 2022 (GM-MMS) presided by THE HON’BLE MR. JUSTICE ASHOK S. KINAGI it is stated that His writ petition is filed under section 226 and 227 of the constitution of india praying for the issuance of a writ of mandamus or any other writ or order for proceedings of the 3rd respondent deputy director of mines and geology, government of karnataka, 5th block, b. Kela govt. Gowda extension, near basappa hospital, chitradurga -577001, for consideration of application/representation of applicant on 19.02.2022, vide annexure-k, Given by the applicant for a permit to carry all the remainder above white quartz/quartz mine extracts weighing approximately 2000 tons, Situated at survey no.113 in village maradihalli, hiriyur taluk, district chitradurga and issuing necessary order/permission for closing Applicants mining of m/s mal minerals group and gr group concerns applicant. 

Facts of the case 

The petitioner prays before this Court for an injunction in the form of mandamus against the respondents/authorities of W.P.No. to consider the request/representation of the petitioner dated 19.02.2022, a copy of which is kept on file as Annexure-K. Learned Additional Government Counsel for the acceptance of the deposition for the respondent on the instruction before this Court submits that after the representation a notice headed “final notice” was issued to the petitioner on 02.08.2022. The Respondents/Authorities called upon the Whistleblower/Appellant to produce certain documents. Some time was also granted to the petitioner at his request to submit documents. However, the documents were not provided to the authorities within the specified period. The learned legal representative of the petitioner, on the other hand, states that all the necessary documents were submitted to the office on 17 June 2022. Copy of communication W.P. no. 21215/2022 dated 17.06.2022 of the addressed office is stored in Annex-M. 

JUDGMENT 

THE HON’BLE MR. JUSTICE ASHOK S. KINAGI observed that 

If the petitioner is willing to submit documents to the authority, as informed by the authority and as stated in the communication dated 08/02/2022, he shall submit these documents to the authority within 10 days from today. If the petitioner does not submit any document within one week from today, the respondents/authorities have the opportunity to decide on the petitioner’s application based on the material available to the authority. This decision will be taken by the authority as soon as possible, but no later than within 10 weeks from the date of receipt of the decision of this court. As per the above instructions, the petition is disposed of. A certified copy of the order to the parties. Parties to deal with the certified copy and decide the application and pass orders in the merits of W.P. No. 21215/2022 in accordance with the provisions of the law and communicated the order to the petitioner. 

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JUDGEMENT REVIEWED BY HARSHA L NALWAR 

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HC stays Section 263 order as Mandatory twin pre conditions were prima facie not fulfilled: Gauhati High Court

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Gauhati High Court on 19/08/2021 decided the stays Section 263 order as Mandatory twin pre conditions were prima facie not fulfilled. This was seen in the matter of Karan Jain Vs. The Union Of India & 3 Ors Appeal Number : WP(C)/3999/2021this matter was presided over by Honourable Mr. Justice Achintya Malla Bujor Barua.

FACTS OF THE CASE

Heard Dr. A Saraf, learned senior counsel for the petitioner. Also heard Mr. S Sarma, learned standing counsel for the Income Tax Department.  Issue notice, returnable by six weeks.  = Extra copies of the writ petition be served on the learned counsel for the respondents within three days. The petitioner was served with the notice dated 24th March 2021 for hearing in respect of a revision proceeding u/s 263 of the Income Tax Act 1961 (for short, the IT Act). In the notice dated 24th March 2021 at Clause 3 it was stated that while the assessment was completed by allowing an amount of Rs.5,30,257/- being the difference between LTCG from sale of shares credited at Rs.36,89,039/- and such LTCG shown in computation of income at Rs.31,58,782/- which was not brought to tax. Accordingly, in clause 4 of the notice dated 24.03.2021, a satisfaction was arrived at that the assessment made 28th decemeber 2018 was erroneous & prejudicial to the interest of revenue.

Dr. A Saraf, learned senior counsel for the petitioner takes the Court to the return submitted by the petitioner. The relevant portion of which is available at page 34 & 35 of the writ petition regarding the statement of long term capital gain u/s 10(38) of the IT Act and in such statement, it is shown that in respect of certain shares there was a loss amounting to Rs.5,30,257/-. According to Dr. Saraf, learned senior counsel once the amount of Rs.5,30,257/- being the loss is taken out from the figure of Rs.36,89,039/-, the balance would be Rs.31,58,782/-. According to the learned senior counsel the aforesaid amount referred in clause 3 of the notice dated 24th March 2021 was clearly stated in the income tax return submitted by the petitioner assessee.

In the aforesaid background, Dr. Saraf also refers to the order dated 28th March 2021 u/s 263 of the IT Act wherein in clause 5.0 a conclusion was arrived at that since there was no explanation from the assessee as regards the aforesaid discrepancies, the Principal Commissioner of Income Tax provided that the matter shall be decided on the basis of the materials available on record & came to the conclusion that there is merit in the claim that the Assessing Officer had failed to examine & consider the fact that the assessee had omitted to disclose the long term capital gains amounting to Rs.5,30,257/-, while computing his income. By referring to the returns submitted by the assessee available at page 34 & 35 respectively, a submission is made that the aforesaid conclusion is arrived at by the Principal Commissioner that there is merit in the claim that the Assessing Officer failed to examine & consider that the assessee had omitted to disclose the long term capital gains amounting to Rs.5,30,257/-. Accordingly a submission is made that the conclusion of there being an erroneous assessment is absent.

Dr. Saraf, learned senior counsel also raises the submission that the aforesaid items are covered under the provisions of Sec 10(38) of the IT Act wherein itself there is a provision that the aforesaid items are exempted from payment of income tax and even if there is any discrepancy in the return submitted by the assessee, the same would not be prejudicial to the interest of revenue.

JUDGEMENTS

In view of above aspects, we find that a prima facie case has been made out by the petitioner. Considering the balance of convenience & irreparable loss that the petitioner may suffer, further process pursuant to the order dated 24th March 2021 u/s 263 of the IT Act shall remain stayed until further order(s).  List after 6 weeks. In the meantime, the respondents may file their affidavit explaining the submissions made by the learned senior counsel for the petitioner.

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JUDGEMENT REVIEWED BY YAKSHU JINDAL.

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