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The instant writ petition as regards the legality of the constitution of the Contractor Enlistment Committee can be said to be not maintainable. Such an opinion was held by The Hon’ble High Court of Manipur before The Hon’ble Mr. Justice Kh. Nobin Singh in the matter of Contractor’s Association, RIMS Vs. Regional Institute of Medical Sciences and ors. [W.P. (C) No. 449 of 2021 ].

The facts of the case were associated with a challenge in this writ petition against the notice issued by the Consultant Engineer (Civil), RIMS. The petitioner party stated that the contractors enlisted by the RIMS formed an association. The motive of the petitioner association was to promote and maintain the quality standards of the Health Department, Manipur by executing contract works to the satisfaction of the RIMS authority. They have been executing different types of contract works and were still continuing to do so. Respondent no. 3 issued a notice where amongst many things it was stated that the existing enlisted contractors of the RIMS including the members of the petitioner association ought to apply for revalidation; leading the petitioner association to file such Writ Petition. 

It was contended that such colourable exercise of power by any authority was impermissible and was patently absurd and untenable in the eyes of law. Moreover, the time period mentioned therein for revalidation was too short in view of the Covid-19 pandemic. The affidavit filed by the opposition stated that the RIMS authority had extended the time period for the submission of relevant documents. It was also stated that the petitioner was only aggrieved about the time period for submission of their relevant documents on the ground of the Covid-19 pandemic. Further in an affidavit, it was submitted that the rules were modified which were dishonest attempts to cover the faulty regulation behind the back of this Court. All the submissions and pleadings brought forth two issues. One was the legality of the constitution of the Contractor Enlistment Committee and another was relating to the validity and correctness of the notice dated 08-06-2021 issued by the Consultant Engineer (Civil), RIMS.

After considering all the submissions The Hon’ble Court stated that “In view of the above and for the reasons stated hereinabove, the instant writ petition is devoid of any merit and is accordingly dismissed with no order as to costs. The interim order passed by this Court stands vacated. However, it is made clear that it is open to the RIMS to consider and take a decision, in the event of any representation being submitted by an aggrieved person praying for extension of time, on its own merit either to extend the time period or not to extend it.”

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Judgment reviewed by Bipasha Kundu

 While adjudicating upon a case passed an order stating that if a Hindu Man wants to adopt a child the consent of his wife is necessary. Even if the husband and wife are living separately and are not divorced in such cases the consent of the wife is necessary. If the consent is not obtained, then the adoption will not be considered valid. This order was passed by Justice J.J. Munir in the case of Bhanu Pratap Singh vs. State of Uttar Pradesh & Ors. [WRIT – A No. – 10300 of 2017].

The Single bench Judge of the High Court passed the above order dismissing the petition filed by the Petitioner. The Petitioner submitted that his uncle Rajendra Singh was serving in the forest department and while serving in this department he died. Therefore, the Petitioner was seeking an appointment in a compassionate quota on the grounds that his uncle i.e. Rajendra Singh had adopted him. The Petitioner gave evidence for the Hindu rites that were carried out on adoption in the year 2001. A deed of adoption dated 14.12.2009 was also placed on record by the Petitioner. The uncle of the Petitioner was living separately from his wife for many years but had not divorced her. The present writ was filed as the Department of Forest did not consider the Petitioner as a valid heir of the Rajendra Singh.

The counsel for the Petitioner cited various cases where the validity of adoption is in question factors like the ceremony of adoption and long duration of time has to be given due weight. After analysing a series of cases and hearing both sides the court was of the opinion that The court has said that the adoption of the petitioner has not been done in a legal manner as the Hindu adoption law requires wife’s consent to adopt a child until and unless the wife is not alive or ceased to be a Hindu, or a competent court declares her mentally unwell. Hence, in this, as the uncle of the Petitioner and his wife were living separately and were not divorced the consent for adoption was necessary. As in this case, no such consent was taken the adoption was not considered valid.

In this petition, there were no doubt that Smt. Phulmati was a wife living until the death of the late Rajendra Singh. The two were never divorced, howsoever estranged they might have been. A mere estrangement between the man and wife without disruption of the marital status, in accordance with the law, that may either be by a decree for divorce or annulment or by the death of the wife, would not take the case out of mischief of the proviso to Section 7, requiring the wife’s consent to the adoption.

As a result, this petition failed and stands dismissed.

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Judgement reviewed by-Sarita Kumari

A person arrested under the National Security Act was ordered to be released and the detention order issued by the District Magistrate was set aside on the grounds that the procedure laid down under the Act was not followed. Hence the court stated that the law which confers extraordinary power to the state must be exercised with extreme care. This ratio was laid down by J. P. Diwaker & J. P.K. Srivastava in the case of Javed Siddiqui Vs. Superintendent District Jail Janpur & Ors., [HABEAS CORPUS WRIT PETITION No. – 458 of 2020].

The brief facts of the case are that the Appellant was arrested in June 2020 and booked for arson and rioting after homes that belonged to Dalits were burned in a locality near Jaunpur. The appellant was booked for the two charges but was released on bail. Even after grant of bail he remained under custody because the District Magistrate notice the efforts the Appellants was making to get a bail and so he anticipated that it would be difficult to maintain law and order if he is released and hence he decided to initiate action for preventive detention under Section 3(2) of the National Security Act. Hence, the appeal has been made to set aside the preventive detention order. 

The counsel for the appellant submitted that the Appellant was not given a chance to present his case before the Advisory Board and the prevention order was directly issued. This was a violation of Articles 14, 21 and 22(5) of the Constitution and the relevant sections under National Security Act.

The Allahabad High Court set aside the detention order passed on 21.07.2020 and ordered the Appellant to be released if he has no other case pending against him. The High Court stated that, “The history of personal liberty is largely the history of insistence on observation of the procedural safeguards. The law of preventive detention, though is not punitive, but only preventive, heavily affects the personal liberty of individual enshrined under Article 21 of the Constitution of India and, therefore, the Authority is under obligation to pass detention order according to procedure established by law and will ensure that the constitutional safeguards have been followed.”

 The Court further added that, “no reasonable explanation was been given by state authority for the delay in forwarding Siddiqui’s representation and not placing it before the Advisory Board,” the High Court said, “This inaction on the part of the authorities certainly resulted in deprivation on the right of the petitioner of the fair opportunity of hearing and it also resulted in denial of the opportunity of fair hearing to the petitioner as provided under the law. This is not permissible and is in gross violation of established legal and procedural norms and legal and constitutional protections.”

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Judgement reviewed by-Sarita Kumari

Only the Government in exercise of their executive powers can authorize any superior police officer to investigate a case and such direction can be issued by the higher officer to his subordinate officer in the police department. This was held in the judgment passed by a single judge bench comprising of HON’BLE MRS. JUSTICE SINDHU SHARMA, in the matter Tanveer Ahmed Zargar and another V. Surinder Kumar and another [IA No. 01/2018], dealt with an issue where the petitioner filed a petition seeking to quash of the complaint titled, ‘Surinder Kumar V/s Tanveer Ahmed Zargar and others’ and the order, passed by the learned Chief Judicial Magistrate.

Grounds of challenge alleged that: (i) The order is illegal, arbitrary and against the law; (ii) The demarcation report which is subject matter of challenge and bone of contention in the complaint has been so carried as per the order of the Sub-Judge, Kishtwar passed in Civil Suit titled, ‘Ravi Kumar V. Jagdish Raj and others’, the Chief Judicial Magistrate, Kishtwar, who has directed the Senior Superintendent of Police, Crime Branch, Jammu to investigate the complaint. (iii) That for investigation of the case, registration of the FIR is necessary but there is no commission of offence disclosed in the complaint except para 8 which shows “that accused have committed offence under sections 109, 167, 504 and 506 RPC as such are required to be dealt under law”.No offence is made out against petitioner No. 1, because what abuse was hurried at respondents is not disclosed. These are some of the grounds of challenge.

Counsel for the petitioners argued that there is no application of mind by the Trial Court in the absence of offence, section 156(3) Cr. PC is not applicable. He has also argued that the Trial Court has simply translated the complaint and not taken into account the said fact before directing the Senior Superintendent of Police, Crime Branch, Jammu to investigate the matter, as such, the said order is illegal.

Counsel for the respondent-Surinder Kumar has argued that petition is not maintainable in view of the law laid down by Hon’ble the Supreme Court in ‘HDFC Securities Ltd. Vs State of Maharashtra and another’.

After hearing both sides, the Hon’ble High Court of Jammu and Kashmir allowed the petition and held that the order impugned is illegal being without jurisdiction in view of the law laid down by Hon’ble the Supreme Court in ‘Kolakkadan Mossa Haji V. State of Kerala and others. It also held that the order of Chief Judicial Magistrate, directing the SSP, Crime Branch, Jammu to investigate the case under section 156(3) Cr.P.C is without jurisdiction and, as such, illegal and it is accordingly quashed.

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Judgement reviewed by – Vaishnavi Raman

Petitioner seeks appointment of an Arbitrator in terms of Clause 9.0.0.0 of the General Conditions of Contract and the same issue was held in the judgement passed by a single bench judge comprising HON’BLE MR. JUSTICE SANJEEV NARULA, in the matter ISGEC HEAVY ENGINEERING LTD. V. INDIAN OIL CORPORATION LIMITED dealt with an issue mentioned above.

The present petition under Section 11 (4) and (6) of the Arbitration and Conciliation Act, 1996 [hereinafter, ‘the Act’] seeks appointment, a Work Order SANJEEV NARULA, J. 1 1 Work Order No. 24875185. was issued to the Petitioner for carrying out the works of “Residual Process Design, Engineering, Detailed Engineering (including HAZOP Study) and a lot more of the Respondent. And also they have mentioned that ‘Formal Agreement for Work’ dated 26th September 2016 was executed at Guwahati [hereinafter, ‘Contract’].

During the pendency of the Contract, the Respondent – i.e., Indian Oil Corporation Ltd. Issued a suspension order dated 06th August 2018, 2 which lead to Petitioner – i.e., ISGEC Heavy Electrical Ltd. Exercising its right to terminate the Contract vide letter dated 24th December 2019.

Mr Neelanjan Deka, counsel for IOCL does not dispute the existence of the Arbitration Agreement, however, he opposes the present petition by making the following submissions:

• The present petition is not maintainable as this Court does not have the territorial jurisdiction to appoint an Arbitrator.
• All activities about the Contract viz. – floating of tender, allotment of work, placing of the purchase order, signing and execution of Contract, execution of work, etc. have been carried out in Guwahati; There is no connection with New Delhi to confer jurisdiction here.
• Reliance is placed upon Section 20 (3) of the Act to contend that the venue of arbitration can be changed with the consent of the parties. Thus, it cannot be said that parties have agreed to subject themselves to the exclusive jurisdiction of the court(s) at Delhi.

Mr Shambu Sharan, counsel for the Petitioner, submits that he argued that the law on this issue stands settled by the Supreme Court in BGS SGS Soma JV v. NHPC Ltd. 3, and the said decision is squarely applicable to the facts of the case. He further argued that ‘venue’ provided in the aforenoted clause is akin to defining the seat of arbitration. Reliance was also placed upon Inox Renewables Ltd. v. Jayesh Electricals Ltd.

The Court has considered the contentions of the counsels. In the ANALYSIS 3 (2020) 4 SCC 234. ARB.P. 164/2021 Page 5 of 9 instant case, Clause 9.1.2.0 of the GCC provides that the ‘venue’ of arbitration shall be New Delhi. The said clause also provides that the Arbitrators may, with the consent of the Owner (IOCL), and the Contractor (IGSEC) agree upon any other venue.

And also, the question that arises for consideration is whether the term ‘venue’ provided in Clause 9.1.2.0 of the GCC is equivalent to ‘seat’ of arbitral proceedings or is it merely a ‘venue’/ ‘place’ i.e., a geographical location to conduct meetings/ proceedings.

The court perused the facts and argument’s presented, it thought that- “For the reasons laid out above, this Court is of the view that Clause 9.1.2.0 only provides a ‘venue’ of arbitration, and the juridical ‘seat’ shall vest with the civil court(s) at Guwahati. Given the above, this Court does not have the jurisdiction to entertain the present petition and accordingly, the same is dismissed”.

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Judgment Reviewed by: Mandira BS