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Delhi High Court Deems Monthly Pension of ₹3K for Building and Construction Workers Minuscule in a City Like Delhi.

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Case title: Delhi Building and other Construction Workers Welfare Board v. Dulari Devi and Anr.

Case no: LPA 372/2023 and CM APPL.20067/2023

Dated on: 01st May, 2024.

Quorum: Hon’ble Mr. Justice Rajiv Shakdher and Hon’ble Mr. Justice Amit Bhansal.

Facts of the case: 

The appeal is directed against a common judgement dated 23.02.2023 rendered by learned single judge in WP (C) 13969/2022 and WP (C) 14432/2022. Respondent No.1 in the appeal is the wife of the deceased worker, Shri Gauri Shankar Gupta, while the respondent No.2 is the Govt. of NCT of Delhi. The respondent No.1/ Smt. Dulari Devi had preferred WP (C) 13969/2022, an order dated 23.08.2022 passed by the appellant, i.e; Delhi Building and the Other Construction Workers Welfare Board was assailed. Shri Shankar Gupta had been employed as a building worker in Delhi for decades. He registered as with the welfare board for the first time on 17.12.2007, when he was 58 years old. At the time of the registration, Shri Shankar Gupta had deposited the contribution for three months i.e; 17.12.2007 and 17.03.2008. Acknowledging the fact that Shankar Gupta had reached 60 on 01.01.2009. Upon completing 60years, Gupta preferred an application for pension with the Welfare Board. An official had informed him with the fact that his application to grant pension has been rejected by the Welfare Board on 19.08.2020. Aggrieved by the decision, Shri Shankar Gupta lodged an appeal on 19.01.2021 under Rules 273(4) of the BOCW rules. Unfournately, Shri Shankar Gupta expired on 05.05.2021, nearly three weeks after the order dated 16.04.2021 was passed. Respondent No.1/ Smt Dulari Devi received a fresh notice dated 28.07.2021 to conduct a hearing for the same. Based on the advice of the Legal Advisor, Labour Department, the Secretary, welfare Board directed the Deputy Secretary, North-West to decide the matter afresh, after hearing Shri Gauri Shankar Gupta. Shri Gauri Shankar Gupta expired on 05.05.2021. Respondent no.1/Smt Dulari Devi (wife) received fresh notice to conduct hearing in the matter. Another deficiency letter dated 02.09.2021 was issued by the Welfare Board advising to produce documents related to the renewal of Shri Guari Shankar Gupta’s membership for the period 17.03.2008 and 16.10.2012. Since the receipts were unavailable and not submitted, the application preferred by the deceased Shri Gauri Shankar Gupta for granting a pension was temporarily closed. Respondent no.1/Smt Dulari Devi and others protested against the closure of the application. In response, the Secretary of the Welfare Board suggested to file affidavits to overcome the objections raised by the Welfare Board. As per records one, Ms Badam Verva, who was in a similar situation, filed an affidavit in substitution of the renewal receipts. Since Ms Badam Verva application for pension was not processed by the Welfare Board, she approached this Court, where High Court issued directions to consider the affidavit filed by Ms Badam Verva. Respondent no.1/Smt Dulari Devi, taking note of this Order filed affidavit on 10.05.2022, but the Welfare Board rejected the application for pension vide order dated 23.08.2022. Aggrieved by the order dated 23.08.2022, respondent no.1/Smt Dulari Devi filed WP (C) 13969/2022 which was disposed vide the impugned judgment.  

Contentions of the appellant: 

Under the BOCW Act and BOCW Rules, a building worker is not entitled to pension solely upon reaching 60 years of age. The building worker is required to apply for pension in the prescribed form, in accordance with Rule 272 of the BOCW Rules. Section 14(2) of BOCW Act, provides that a construction worker would be eligible for a pension if he fulfils the following criteria. (i)He should have attained the age of 60 years. (ii) He should have been a beneficiary continuously for three (3) years immediately before reaching the age of 60. The explanation to Section 14 (2) permits inclusion in the stipulated timeframe, i.e., three (3) years, any period for which the building worker has been a beneficiary with any other Welfare Board immediately before his registration with the concerned Welfare Board. Since the deceased, Shri Gauri Shankar Gupta had been registered with the Welfare Board only for three months, between 17.12.2007 and 17.03.2008, he did not fulfil the eligibility criteria as provided in Section 14(2) of the BOCW Act. The impact of the impugned judgment is that any person who acquires membership of the Welfare Board, even for a day between the prescribed age span, i.e., 18 years and 60 years, is entitled for pension and such an interpretation by the learned Single Judge would put severe financial burden on the Welfare Board. The Supreme Court in in NCC-CL v. Union of India & Ors. Held; pension constitutes permanent liability which the states may not be able to sustain in the long term, the State Welfare Boards may formulate pension schemes depending upon their financial capacity. However, pension should be admissible to only those registered of 10 years. In this regard the State Welfare Board should issue a certificate to the effect that a BOC worker has remained registered for a period of 10 years.

Contentions of the respondent: 

BOCW Act is a welfare legislation and under Section 22(1)(a) to (g) of the BOCW Act and Clause (h) of Section 22(1) of the BOCW Act, the Welfare Board can make provisions for and improvement of such other welfare measures and facilities. As far as pension payment to beneficiaries was concerned, as per Section 22 (1) (b) pension would be paid to beneficiaries who completed 60 years of age. This provision had to be read with Section 2(1)(b), which defines beneficiary as a building worker registered under Section 12 of the BOCW Act. Section 12, provides that only that building worker could register himself with the Welfare Board who had completed 18 years of age but had not reached 60 years of age and who had been engaged in any building or construction work for not less than 90 days for the preceding 12 months. Under Section 14 of the BOCW Act, the registration acquired by the building worker ceases once the building worker attain 60 or when he is not engaged in building or other construction work for 90 days or more in a year. Under Clauses (a) to (g) of Section 14 (1), the Board had power to make provisions or improvements in the welfare measures and facilities as may be prescribed from time to time. A building worker could avail welfare measures or improvements only if he had been a beneficiary for at least three years immediately preceding the date he completed 60 years of age. For availing pension, the building worker was not required to fulfil the criteria stipulated in Section 14(2). No eligibility criteria was provided in the BOCW Act for a pension grant. The eligibility criteria was, provided in Rule 272 of the BOCW Rules wherein, a building worker, who was a member of the fund would become eligible for pension upon completion of 60 years of age, if he had been working for not less than one year after the commencement of the BOCW Rules. It was contended that contrary to the submissions advanced on behalf of the Welfare Board, there was no inconsistency between the provisions of the BOCW Act and the BOCW Rules.  

Issues:  

Whether Smt. Dulari Devi would be entitled to receive pension in terms of the BOCW Act read with the BOCW Rules? 

Legal provisions:

 Section 12 of the BOCW Act- there is no restriction for a worker to avail or get registered after fulfilling the conditions. 
Section 14(2) of BOCW Act- The members of the export committee shall be paid such fees and allowances for attending the meetings of the committee as may be prescribed.

Courts analysis and judgement: 

There is no contestation that Shri Gauri Shankar Gupta was a building worker within the meaning of the provisions of Section 2(1)(e) of the BOCW Act. There is no dispute that Shri Gauri Shankar Gupta fulfilled the criteria for registration as a beneficiary, as prescribed under Section 125 of the BOCW Act. Shri Gauri Shankar Gupta’s application for registration renewal was allowed on 31.01.2012. The exercise of the power of registration/renewal in Shri Gauri Shankar Gupta’s case, as observed in the order dated 16.04.2021 was in in accordance to Section 17 of the BOCW Act. It is not disputed that Shri Gauri Shankar Gupta had deposited Rs.532/- as his contribution for the period between 17.03.2008 and 16.10.2012. The renewal of registration as a beneficiary would relate back to March 2008 and therefore, on the date Shri Gauri Shankar Gupta reached 60, he fulfilled the eligibility criteria concerning registration and crossing the threshold of 60 years of age to claim a pension from the Welfare Board. The point to considered as whether Shri Gauri Shankar Gupta should have been registered as a beneficiary in the immediately preceding three years before attaining the age of 60 years as for claiming pension? Under Section 22 (1) (a) to (g) of the BOCW Act invest in the Welfare Board power to accord specific benefits to registered beneficiaries. The Welfare Board has been, among other things, conferred with a specific power to grant pensions to beneficiaries who have reached 60 years of age. However, the BOCW Act does not provide eligibility criteria as regards the qualifying period for which the building worker should have worked before he reached 60. The stipulated eligibility criteria of having been a beneficiary for at least three (03) years preceding the date when the beneficiary completes 60 years of age cannot apply to specific benefits which are the subject matter of Section 22 (1) (a) to (g). Pension is one such specific benefit, provided in Section 22 (1) (a) to (g), and cannot be controlled by the eligibility criteria provided in sub- Section (2) of Section 14. The eligibility criteria concerning pensions are expressly provided in Rule 272 of BOCW Rules 8. The said provision, in no uncertain terms, states that a member of the fund who is a building worker would be eligible for a pension on reaching 60 years of age if he has worked for a period of not less than one year. Although Shri Gauri Shankar Gupta had asserted that he had been working as a building worker in Delhi for several decades before his registration with the Welfare Board on 17.12.2007, even if it is assumed that he commenced his work from the said date, he would have met the minimum eligibility criteria of one year provide in Rule 272 before the date when he completed the age of 60 years. 21. It is not disputed that Shri Gauri Shankar Gupta turned 60 on 01.01.2009, at which point he had already worked as a building worker for more than one (01) year. Therefore, the order dated 23.08.2022 passed by the Welfare Board was contrary to the provisions of the BOCW Act and BOCW Rules. The object and purpose of the BOCW Act is not only to regulate employment and conditions of service for building workers but also to provide safety, health, and other welfare measures from time to time. The Welfare Board, have to find resources, like increasing the rate of levy of cess, to gather funds to extend benefits to building workers. The financial burden that may fall on the Welfare Board cannot be a basis for non-implementation of the will of the legislature, which can very well be gathered in the scheme of the BOCW Act and Rules. In view of the aforesaid reasons, it is not required to interfere with the impugned judgment and the appeal is, accordingly, dismissed.  

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Supreme court upholds CESTAT view that the process of labeling/ re labeling, packing / re-packing amounts to “manufacturing”.

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Case title: Commissioner of central excise Belapur V. Jindal Drugs Ltd

Case no: Civil appeal No. 1121 of 2016 and 788-790 of 2022

Dated on: 30th April, 2024

Quorum: Justice Abhay S. Oka and Justice Ujjal Bhuyan

Facts of the case:

This is an Appeal against the Order dated 16.04.2015 passed by Customs Excise and Service Tax Appellate Tribunal (CESTAT) against Appeal No.E/86389/13-Mum.The Respondent is engaged in the business of exporting cocoa butter and cocoa powder. Its factory at Jammu manufactures cocoa butter and cocoa powder. Respondent has another unit located at Taloja. The Cocoa butter manufactured at Jammu are received by the Respondent’s unit at Taloja. In the Taloja unit, respondent affixed two labels on two sides of the packages of the goods received from its Jammu factory and had claimed rebate of the duty paid on the exported goods. Further, respondent availed cenvat credit of the duty paid on those two goods at the time of clearance from Jammu. Respondent also imported cocoa butter and cocoa powder from China and Malaysia which was received at Taloja.The factory of the respondent at Taloja was visited by the officials of the appellant and it was found that the respondent was not only putting labels on the good bought from the Jammu unit but also was putting labels on the imported goods. As the labels were already fixed on the boxes containing the two goods additional labels affixed did not amount to manufacture as the additional labels affixed would not enhance the marketability of the goods which were already marketable. The appellant then issued a show cause notice to the respondents on 09.10.2012 to show cause as to why activity of labelling undertaken by the respondent on the product received from the Jammu unit and also on the imported goods are not to be held as activity of manufacturing in the terms of Note 3 chapter 18 of the Central Excise Tariff Act. It was alleged that the respondent had wrongly availed cenvat credit amounting to Rs. 23,02,53,752/. from the period of June, 2008 to July 2012. It was also alleged that the rebate amounting to Rs. 13,22,30,368 from the period of June, 2008 to July, 2011 was erroneously sanctioned. Thereafter, hearing the respondent, appellant passed an order on 25.02.2013 that the cenvat credit availed was irregular and the rebate sanctioned was erroneous thereby, the respondent was made liable to refund the credit availed for Rs. 23,02,53,752/- and a rebate of Rs. 13,22,30,368/- along with interest and penalty of 23,02, 53,752/- However, the penalty could be reduced to 25%, if the assessee paid the duty within 30 days of order. The Respondent preferred appeal before CESTAT. After hearing the matter CESTAT passed an order dated 16.04.2015 by stating that activity undertaken by respondent is covered by Note 3 to chapter 18 which amounts to manufacture and that there was no suppression or misrepresentation of the material fact by the respondent. That being the position the cenvat credit and the refund availed by the respondent was right and hence no penalty could be imposed. Aggrieved by the same, the appellant has now preferred appeal.

Contentions of the appellant: 
The activity undertaken at the Taloja unit i.e; putting labels on both the sides of the cartons that were labelled at Jammu is not a manufacturing activity. Note 3 to chapter 18 Central Excise Tariff Act cannot be read in the manner that the activity of the labelling amounted to manufacture. The Technical Member of CESTAT had given a good reason to why such an activity cannot be considered as a manufacturing activity.

Contentions of the respondent: 
In Note 3 chapter 18 of the Central Excise Tariff Act, Parliament has consciously replaced the word ‘and’ by the word ‘or’, vide amendment dated 01.03.2008, thereby making it clear that the activity of labelling or re-labelling amounted to “manufacture”.

Legal provisions:

Section 11A (1) of the central excise act- deals with recovery of duties not levied or paid or short-levied or short-paid or erroneously refunded. 
Rule 14 of Cenvat credit rules 2004- credit has been taken wrongly or erroneously refunded. 
Rule 3 of cenvat credit rules- A manufacturer or producer of final products shall be allowed to take credit.   


Issues: 
Whether the activity of labelling amounts to manufacture?

Courts analysis and judgement:

Supreme court examined the definition of “manufacture” under Section 2(f)(ii) under Central excise Act “manufacture” includes any process, (i)incidental or ancillary to the completion of a manufactured product. 
(ii) which is specified in relation to any goods in the Section or Chapter notes of the First Schedule to the Central Excise Tariff Act (5 of 1986) as amounting to manufacture; or 
(iii) which, in relation to the goods specified in the Third Schedule, involves packing or repacking of such goods in a unit container or labelling or re-labelling of containers including the declaration or alteration of retail sale price on it or adoption of any other treatment on the goods to render the product marketable to the consumer, and the word “manufacturer” shall be construed accordingly and shall include not only a person who employs hired labour in the production or manufacture of excisable goods, but also any person who engages in their production or manufacture on his own account; Therefore, the word ‘manufacture’ includes any process which is incidental or ancillary to the completion of a manufactured product; any process specified in Section or chapter notes of the first schedule to the Central Excise Tariff Act or any process in relations to goods specified in 3rd schedule which involves packing or re-packing, labelling or re-labelling, declaration or alteration of retail sales price or adoption of any other treatment on the goods to render the product marketable. Further, post-amendment of 01.03.2008 to Note 3 to chapter 18 of the Central Excise and Tariff Act, “manufacture” contemplates any of the three processes. The three processes are- 
i) labelling or re-labelling of containers; or 
ii) repacking from bulk packs to retail packs; or 
iii) the adoption of any other treatment to render the product marketable to the consumer. 
If any one of the above three processes is satisfied, then the same would amount to “manufacture” under Section 2 (f) (ii) of the Central Excise Act. There is no dispute as to the activity carried out by the respondent at the Taloja unit. Whether the goods are brought from Jammu or are imported, those re-labelled on both the sides of the pack containing the goods at the Taloja unit and thereafter, introduced in the market or sent for exports, in terms of Note 3 to the chapter 18 this process of re-labelling amounts to “manufacture”. The view taken by the CESTAT is correct and no case for interference is made out. Accordingly, the civil appeal 788-790 of 2022 stands dismissed.

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Supreme Court Directs Bombay High Court to Scrutinize Legality of Advocates’ Filed ‘Minutes of Order’

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Case Title: Ajay Ishwar Ghute and Ors V. Meher K. Patel and Ors

Case no: Civil appeal No. 4786 of 2024

Dated on: 30th April, 2024

Quorum: Justice Abhay S. Oka and Justice Ujjal Bhuyan

Facts of the case:

An Arbitration Petition was filed under the Arbitration and Conciliation Act, 1996 before single judge of Bombay High court wherein consent terms were filed in the arbitration petition preferred by the first respondent. In terms of the consent terms the learned single judge recorded that the process of handing over the possession of the suit property by the respondents to the first respondents as commenced. The disputes were related to lands of Parsi Dairy Farm. The seventh respondent filed an interim application after two years of filing the consent terms by stating that High court had directed the Police to give police protection to the parties for completing the process of handing over possession. A compound wall was to be constructed in terms of the consent terms, which according, to the seventh respondent could not be done as local persons obstructed the work. The learned single judge of the Bombay High court disposed the interim application by directing Police/Tahasildar/ Collector/ Gram Panchayat office and all other Government authorities to offer assistance to construct a wall to safeguard the suit property. The persons who had obstructed the construction of the wall were not part to the arbitration proceedings/ interim application. An application was filed to Deputy Superintendent of Land Records by first respondent and five others for measuring the land who vide later dated 20.11.2021 informed the first respondent that several persons have objected, in writing, in carrying out the survey. Hence, holding an enquiry was necessary. First and second respondent filed a writ petition under Article 226 of the constitution for non-compliance with the orders of the Arbitration Petition regarding survey and construction of compound wall. The persons who raised objections were not impleaded in the Writ Petition. The Division Bench on 09.03.2022 ordered the Superintendent of Police to be present. The Superintendent of Police filed an affidavit stating that local tribals have gathered an impression that they were attempted to be illegally dispossessed and they insisted that the lands be demarcated before constructing the compound wall. The District Superintendent of Land Records vide an affidavit stated that there are certain persons to whom the petitioners and others have sold small portions of land and if a compound wall is constructed the third parties are likely to get landlocked. The Division bench without noticing the contentions of the above Government officers, instead of directing impleadment of the affected parties passed an order in terms of ‘Minutes of order’ dated 16.03.2022, for issuing a direction to survey authorities to carry out demarcation of the boundary and to direct the police to provide protection for constructing the compound wall.

Contentions of the appellant:

Of the thirty review petitioners Nos. 7-18 were shown as interveners in the “Minutes of order” though they had not engaged any advocate. The said interveners never met the advocate who is shown to have signed ‘Minutes of order’ on their behalf. The appellants had rights in respect of several properties which were likely to be adversely affected by the construction of the compound wall. The principles of Natural justice were not followed before permitting the construction of the compound wall. The impugned order based on ‘Minutes of order’ is completely illegal and vitiated by the non-joinder of the necessary parties.

Contentions of the respondent:

The compound wall had been built in such a manner that no person was landlocked or in any manner inconvenienced. The owners of the adjacent lands continue to enjoy unhindered and unfettered access to their respective land.

Legal provisions

Article 226- Writ Jurisdiction of High Court.

Issue: 

Whether the High court was justified in passing a order while exercising Writ Jurisdiction under Article 226 of the constitution of India permitting the first and second respondent to construct a compound wall under police protection in terms of “Minutes of Order”?

Court’s Analysis and Judgement:

The court summarised conclusions regarding the concept of Minutes of order as follows:
a) The practice of filing ‘Minutes of order’ prevails in Bombay High court the object of which is to assist the court.
b) An order passed in terms of ‘Minutes of order’ is not a consent order. It is an order in invitum.
c) The Courts to apply its mind as to whether parties likely to be affected by an order in terms ‘Minutes of order’ have been impleaded to the proceedings and whether such order is lawful? If the court finds that all parties are not impleaded the court to defer passing of the order till all the necessary parties are impleaded.
d) If the court is of the view that an order made in terms of ‘Minutes of order’ will not be lawful court should decline to pass order in terms of ‘Minutes of order’.

It was the duty of the Court to call 1st and 2nd respondent to implead persons who were likely to be affected by the construction of the compound wall. The Division Bench of the High court failed to make an enquiry as to whether the third parties will be affected by the construction of the compound wall. Hence, order dated 16.03.2022 in terms of ‘Minutes of order’ is entirely illegal and must be set aside. The writ Petition to be remanded to the High court. After remand, High court must decide who are the necessary parties to the petition in case of failure of 1st and 2nd respondents to implead the necessary parties the High court is within its power to dismiss the Writ Petition and pass an order of restoration of status quo ante by directing demolition of the compound wall.

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Mere membership of banned organizations is a sufficient ingredient to incriminate without there being an overt act :SC

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Case title: Jamsheed Zahoor Paul V. State of NCT of Delhi.

Case no: CRL.A. 51/2024.

Dated on: 24th April, 2024.

Quorum: Hon’ble Mr Justice Suresh Kumar Kait and Hon’ble Mr. Justice Manoj Jain.

Facts of the case:

Special Cell (New Delhi Range), Lodhi Colony received information that two persons i.e. Parvaiz Rashid Lone and Jamsheed Zahoor Paul (appellant herein) were radicalized youths of Jammu & Kashmir, having allegiance to banned terrorist organization ISIS/SI/DAESH. As per intelligence inputs, they had procured arms and ammunition from UP for their cadres for executing some terrorist act in Jammu & Kashmir and would come at Netaji Subhash Park, near Lal Quila (Red Fort), Delhi on 07.09.2018 to proceed to Kashmir. Both the aforesaid named suspects were found moving towards Lal Qila. Search of the appellant yielded recovery of one pistol, containing live cartridges. These were seized. During investigation, both the accused divulged that they were propagating ideology of terrorist outfit ISIS in India and were in touch with another ISIS militant, namely, Abdullah Basith. Though, initially, FIR had been registered for commission of offence under Section 25 Arms Act, after detailed investigation and on the basis of the incriminating material collected during investigation, both the accused were accordingly charge-sheeted for commission of offences under Section 25 Arms Act and for Sections 18 & 20 of UAPA. Appellant had earlier moved one application seeking bail which was dismissed, and it was withdrawn on 06.06.2019. He moved another bail application which, too, was dismissed on 01.05.2020, feeling aggrieved, he preferred Criminal Appeal 345/2021 which was, however, not pressed and resultantly, the same was dismissed by this court on 31.01.2022. It was thereafter only that the appellant moved another bail application which also did not find favor and was dismissed by the learned trial court vide impugned Order dated 16.11.2023. Such, Order is under challenge now.

Contentions of the appellant:

There is no material to show that appellant had indulged into any unlawful or terrorist act. The entire case of prosecution is dependent upon the disclosure statements of the accused persons and these statements have no evidentiary value, being inadmissible in law. There is nothing to indicate that any message or BBM chat retrieved from the electronic device of the appellant had any potential to indicate that he was in contact with any terrorist. Appellant could not be branded as “terrorist‟ or a “person involved in terrorist act” merely on the basis of the recovery of a pistol and, therefore, invocation of draconian provision of UAPA is totally mis-founded and unwarranted. There is nothing to indicate that the appellant was a member of ISIS or their purported fronts. Mere framing of charge does not create any embargo against grant of bail as the consideration for framing the charge is different from the one required for grant of bail. Appellant has undergone incarceration for more than five and half years and the trial are not likely to conclude any time soon and, therefore, his fundamental right as enshrined under Article 21 of the Constitution of India has been seriously jeopardized, entitling him to be released on bail on that count alone.

Contention of the respondent:

There are serious allegations against the appellant and the learned Trial Court has already come to a definite conclusion that there is a prima facie case against him for offences under Section 18 & 20 UAPA. According to the respondents, there are following clear-cut allegations and if all these allegations are read conjunctively, it would clearly reveal his complicity qua offences under Section 18 & 20 UAPA. One loaded pistol was recovered possession and the fact he had purchased the same from four juveniles was found to be correct. Appellant was found in possession of two electronic devices, and it was found that he was found using Black Berry Messenger for communicating with his associates. Appellant and his co-accused had procured illicit arms and had come to Delhi together and were to leave for Kashmir together in furtherance of their conspiracy.

Legal Provisions:

Section 18 & 20 of UAPA- Punishment for Organizing Terrorist Camps
Punishment for Being a Member of a Terrorist Gang or Organization
Section 43D(5) of UAPA- makes it virtually hard to grant a bail.
Section 10 of Evidence Act- pertains to the admissibility of evidence in cases involving conspiracy.



Issue:

  • Whether in view of the fact that charges have already been framed and such charges have not been challenged by the appellant, whether bail plea can be considered and whether the court can go on to opine that there are no reasonable grounds for believing the accusation to be prima facie true?

  • What should be the level of scrutiny for believing the same? Whether the appellant has been able to show that there is no prima facie case against him?
  • Whether despite such statutory bar being in place and when prima facie is found to be made out, bail can still be granted in order to safeguard his fundamental rights.




Court analysis and Judgement:

The Hon’ble Supreme Court in Gurwinder Singh Vs. State of Punjab & Anr. 2024 SCC On-Line SC 109, the impact of Section 43D (5) of UAPA was delineated and it was observed that the conventional idea in bail jurisprudence – bail is the rule and jail is the exception – does not find any place in UAPA. It further observed that exercise of general power to grant bail under UAPA is severely restrictive in scope. In National Investigation Agency v. Zahoor Ahmad Shah Watali: 2019 SCC On-Line SC 461 elaborate guidelines was laid about the approach that the Courts must partake in, while considering bail application under UAPA. In context of the meaning attributable to “prima facie true‟, it observed that material collected by the investigating agency, on the face of it, must show the complicity of the accused in relation to the offence and must be good and sufficient to establish a given fact or chain of facts constituting the stated offence, unless rebutted or contradicted by other evidence. It also observed that at the stage of giving reasons for grant or rejection of bail, the elaborate examination or dissection of evidence was not required and the Court is merely expected to record a finding on the basis of broad probabilities. Thus, once charges are framed, it can be easily assumed that there is a very strong suspicion against the accused. Therefore, in such a situation, the task of any such accused becomes much more onerous and challenging as it is never going to be easy for anyone to satisfy that the same set of material, which compelled the court to frame charges on the basis of strong prima facie case, would persuade it to hold to the contrary, by declaring that such accusation was not prima facie true. Be that as it may, there can never be any restriction or embargo on moving application seeking bail. Such unfettered right remains available as long as the proceedings are alive.  As per allegations appearing on record and facts and circumstances placed before the court, the appellant was continuously in touch with his co-accused, travelling with him and arranging weapons. He was in touch with militants as well and met one of them in Delhi. Conspiracy has to be inferred by connecting dots from bunch of circumstances. Moreover, Section 10 of Evidence Act cannot be kept aside which visualizes such type of situation and makes the actions and the statements of co- conspirator to be relevant as against the others. Appellant does not seem to be in any position to wriggle out of the statutory bar contained in proviso of Section 43D (5) of UAPA as there are clear-cut allegations which go on to indicate that accusation against him is prima facie true.  The appellant was in touch with cadres of ISIS which is sufficient to give insight of his culpable mind. In Arup Bhuyan v. State of Assam, (2023) 8 SCC 745, it has been observed that mere membership of banned organization is also sufficient to incriminate, without there being any overt act. Learned counsel for the appellant has prayed that accused has already undergone incarceration for more than 5 ½ years and trial is not likely to conclude in near future. It is argued there is no likelihood of case getting disposed of in near future and, therefore, on the strength of Union of India v. K.A. Najeeb, (2021) 3 SCC 713, it is prayed that despite the aforesaid statutory bar, Constitution Court can always grant bail so that the right of speedy trial and that of life and liberty do not stand defeated.  However, in the case in hand, the maximum sentence provided under Section 18 & 20 UAPA is imprisonment for life and there is nothing which may indicate that prosecution is acting in a manner which is detrimental to his fundamental rights. The learned trial court has already observed that it, being already conscious about such fundamental right of the accused, was taking up the matter diligently by giving shortest possible dates. Therefore, there is no further requirement of passing any further direction in this regard. Resultantly, finding no substance in the appeal, we hereby dismiss the same.

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Appellate Court Upholds Determination of Coparcener Rights in Ancestral Property Dispute: Bombay HC

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Title: Sau. Ushabai Vs Smt. Mainabai and ORS.

Citation: SECOND APPEAL NO. 326/2015

Coram: Justice SMT. M.S. JAWALKAR

Date: 22/12/23

Facts

The case involves the plaintiff, who filed R.C.S. No.1794/1999 for the specific performance of an agreement of sale dated 24/09/1998. The decree in her favor was issued on 18/10/2001, leading to the execution of a sale deed on 17/10/2003. In R.D. No.06/2002, the plaintiff sought possession of the property, with J.Dr.-1 (son) and J.Dr.-2 (mother) as respondents. Following the death of J.Dr. No.1 in 22/07/2005, respondents No.2 to 5, his legal representatives, were brought into the case. They objected on 11/07/2008, claiming the agreement wasn’t for legal necessity due to J.Dr.-1’s alcohol addiction. The objection was rejected on 01/01/2011, leading to the trial court directing the issuance of a possession warrant. Respondents No.2 to 5 then filed First Appeal No.97/2011 in the District Court. The appellant argues that the lower court lacked jurisdiction to entertain and decide the appeal under Section 96 of the Civil Procedure Code, challenging the modified decree in R.C.S. No.1794/1999 based on the objection under Section 47 filed by respondents No.2 to 5 in the execution proceeding. The appeal court not only allowed the appeal but also issued an independent decree for partition and separate possession, which is contested in the present appeal. This second appeal pertains to a case where the appellant is dissatisfied with the judgment and decree issued by the District Judge-9 in Nagpur. The matter involves the rejection of objections under Section 47 of the Civil Procedure Code, and the dispute exists between the concerned parties. Additionally, the appellant contends that the Appellate Court shouldn’t have granted a decree for partition and separate possession in response to the execution proceeding, considering that the suit property had already been sold in compliance with the original decree favoring the appellant.

Laws Involved

Section 96 of Criminal Procedure Code

Appeal from original decree “It outlines the right of a party to appeal to the appellate court against a decree passed by the court of first instance. The section specifies that an appeal shall lie from every decree passed by any court exercising original jurisdiction to the court authorized to hear appeals from the decisions of such court.

Section 47 of Criminal Procedure Code

Deals with questions relating to the execution, discharge, or satisfaction of a decree. It specifies that all questions arising between the parties to the suit in which the decree was passed or their representatives, and relating to the execution, discharge, or satisfaction of the decree, shall be determined by the court executing the decree and not by a separate suit.

Section 115 of Criminal Procedure Code

Empowers the High Court to exercise its supervisory jurisdiction over subordinate courts. This provision is invoked when the High Court believes that the subordinate court has either exercised jurisdiction not vested in it by law, or has failed to exercise jurisdiction when it should have.

Section 20 of Hindu Succession Act,1956

Deals with the devolution of interest in coparcenary property or self-acquired property of a deceased Hindu.

Issues

  • Whether the Regular Civil Appeal is Maintainable challenging the rejection under Section 47 of the Code of Civil Procedure or it is only a revision Under Section 115 of the Code of Civil Procedure?
  • Whether the lower Appellate Court was right in passing a decree for separate possession of the property particularly when the sale deed has already been executed pursuant to decree passed in suit for specific performance of contract?

Judgement

In this judgment, the court affirms the decision of the learned Appellate Court (District Judge-9, Nagpur) in R.C.A. No.97/2011. The appellant failed to establish legal necessity for selling the ancestral property, and the court notes that the objectors, being coparceners with a share in the property, have the right to retain possession in their share. The court finds no infirmity in the Appellate Court’s order, emphasizing that the executed decree is not binding on the share of the objectors. Consequently, the substantial question of law is answered in the affirmative, and the appeal is dismissed, confirming the judgment and decree dated 23/02/2015. The court orders the decree to be drawn up accordingly.

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Written by :- Sanjana Ravichandran

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