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Supreme Court infers Independent Candidate’s Right to Privacy; States Non-Disclosure of vehicles and dues do not amount to Corrupt Practice

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CASE TITLE – Karikho Kri v. Nuney Tayang and Anr.

CASE NUMBER – Civil Appeal No(s). 4615 of 2023 & 4616 of 2023

DATED ON – 09.04.2024

QUORUM – Justice Aniruddha Bose & Justice Sanjay Kumar

 

FACTS OF THE CASE

In the year 2019, Karikho Kri, an independent candidate, Dr. Mohesh Chai, candidate of the Bharatiya Janata Party, and Nuney Tayang, candidate of the Indian National Congress, contested the election to the Arunachal Pradesh Legislative Assembly from 44 Tezu (ST) Assembly Constituency. The election was held on 11.04.2019 and Karikho Kri emerged victorious with 7538 votes, while Dr. Mohesh Chai secured 7383 votes and Nuney Tayang secured 1088 votes. Nuney Tayang filed Election Petition No. 01(AP) of 2019 before the Itanagar Bench of the High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh, seeking a declaration that the election of Karikho Kri was void on the grounds mentioned in Sections 100(1)(b), 100(1)(d)(i) and 100(1)(d)(iv) of the Representation of the People Act, 1951 (for brevity, ‘the Act of 1951’). He also sought a consequential declaration that he stood duly elected from the said constituency. By judgment and order dated 17.07.2023, a learned Judge of the Itanagar Bench of the High Court allowed the election petition in part, declaring the election of Karikho Kri void under Sections 100(1)(b), 100(1) (d)(i) and 100(1)(d)(iv) of the Act of 1951, but rejecting the prayer of Nuney Tayang to declare him duly elected, as he had not led any evidence to prove the allegations levelled by him against Dr. Mohesh Chai, the candidate with the second highest number of votes. Aggrieved thereby, Karikho Kri filed Civil Appeal No. 4615 of 2023 before the Supreme Court and Nuney Tayang filed Civil Appeal No. 4716 of 2023. These appeals were filed under Section 116A of the Act of 1951.

 

ISSUE

  1. Whether there has been a non-disclosure of ownership of Hero Honda CD Dawn Motorcycle owned by the returned candidate, Shri Karikho Kri bearing registration No. AR-11-2446; Kinetic Zing Scooty owned by the wife of the returned candidate, Smti. Bagilu Kri bearing registration No. AR-11-4474; Van, Maruti Omni Ambulance owned by the wife of the returned candidate, Smti. Bagilu Kri bearing registration No. AR-11A-3100 and TVS Star City Motorcycle owned by Shri Goshinso Kri, the son of the returned candidate Shri Karikho Kri bearing registration No. AR11-6581, as is required to be disclosed under Clause 7(vi) of the Conduct of Election Rules, 1961, rendering the nomination of the returned candidate invalid?
  2. Whether there has been a non-submission of no dues certificate with regard to Electricity Charges required to be submitted under Clause 8(ii)(b) of Form No. 26 of the Conduct of Election Rules, 1961, as the respondent No. 1 was in occupation of MLA Cottage No. 1 at ‘E’ Sector, Itanagar, from the year, 2009- 2014, while the respondent No. 1 was an MLA of Tezu (ST) Assembly Constituency during the year, 2009-2014?
  3. Whether the election of respondent No. 1 to the 44- Tezu(ST) Assembly Constituency is liable to be declared void under Section 100(1)(d)(i) of the Representation of the People Act, 1951?

 

COURT ANALYSIS AND JUDGEMENT

The Hon’ble Supreme Court observed that though it appears that the three vehicles in question still remained registered in the names of the wife and son of Karikho Kri, the question that arises is as to whether non-disclosure of such vehicles justified the attributing of a corrupt practice to Karikho Kri and the negating of his election on that ground. They stated insofar as the Scooty bearing No. AR-11/4474 is concerned, it stood in the name of Bagilu Kri but Md. Nizammudin (DW5) deposed that he had taken this vehicle as scrap and sold it as such to Promod Prasad (DW6). In turn, Promod Prasad (DW6) confirmed that he bought the Scooty as scrap from Md. Nizammudin (DW5). During their cross-examination, nothing was elicited from these witnesses to doubt their claims. However, letter dated 20.09.2019 addressed by the District Transport Officer, Lohit District, Tezu, to Bagilu Kri, manifests that the registration of the Scooty in her name stood cancelled only at that time. Though much was argued about this payment of taxes and the fact that the receipt was issued in the name of Bagilu Kri, The Supreme Court was not inclined to give any weightage to it, and the other two vehicles in question, had actual documents of conveyance and also proof of the requisite forms prescribed under the Act of 1988 being duly filled in and issued by Bagilu Kri and Goshinso Kri. Form No. 29, relating to notice of ownership transfer of a vehicle by the registered owner, viz., the transferor, was issued in respect of each of these vehicles but despite the same, the transferees did not do the needful to get their own names registered as the owners. But the Supreme Court held that Mere failure to get registered the name of the new owner of an already registered vehicle does not mean that the sale/gift transaction would stand invalidated and such a vehicle, despite being physically handed over to the new owner, cannot, by any stretch of imagination, be treated as still being in the possession and control of the former owner. Once it is accepted that the three vehicles in question were either gifted or sold before the filing of the nomination by Karikho Kri, the said vehicles cannot be considered to be still owned by Karikho Kri’s wife and son for purposes other than those covered by the Act of 1988. Therefore, non-disclosure of the three vehicles in question could not be held against Karikho Kri in the light of the aforestated analysis. In his Affidavit in Form No. 26, Karikho Kri was required to state as to whether he had been in occupation of accommodation provided by the Government at any time during the last 10 years before the date of notification of the current election and, if so, he was to furnish a declaration to the effect that there were no dues payable in respect of the said accommodation in relation to rent, electricity charges, water charges and telephone charges. Karikho Kri, however, failed to disclose the fact that he had been in occupation of government accommodation during his tenure as an MLA between 2009 and 2014. After Nuney Tayang raised an objection to his candidature on this ground, Karikho Kri filed the requisite ‘No Due Certificates’ of 2014. Having considered the issue, we are of the firm view that every defect in the nomination cannot straightaway be termed to be of such character as to render its acceptance improper and each case would have to turn on its own individual facts, insofar as that aspect is concerned. The Supreme Court viewed that it was not in dispute that there were no actual outstanding dues payable by Karikho Kri in relation to the government accommodation occupied by him earlier, and his failure in disclosing the fact that he had occupied such accommodation and in filing the ‘No Dues Certificate’ in that regard, with his nomination form, cannot be said to be a defect of any real import. More so, as he did submit the relevant documents of 2014 after Nuney Tayang raised an objection before the Returning Officer, and his explanation that he submitted such Certificates in the year 2014 when he stood for re-election as an MLA was in the eyes of the Court, logical and worthy of acceptance. The Supreme Court also inferred to his ‘right to privacy’ which would still survive as regards matters which are of no concern to the voter or are irrelevant to his candidature for public office. In that respect, non-disclosure of each and every asset owned by a candidate would not amount to a defect, much less, a defect of a substantial character. On the above analysis, the Hon’ble Supreme Court held that the High Court was in error in concluding that sufficient grounds were made out under Sections 100(1)(b), 100(1)(d)(i) and 100(1)(d)(iv) of the Act of 1951 to invalidate the election of Karikho Kri and, further, in holding that non-disclosure of the three vehicles, that still remained registered in the names of his wife and son as on the date of filing of his nomination, amounted to a ‘corrupt practice’ under Section 123(2) of the Act of 1951. In the result, Civil Appeal No. 4615 of 2023 filed by Karikho Kri was allowed, setting aside the Judgment and Order dated 17.07.2023 passed by the Itanagar Bench of the High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh, and Civil Appeal No. 4716 of 2023, filed by Nuney Tayang, was dismissed.

 

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Gauhati HC rejects Uxoricide conviction due to weak Circumstantial evidence

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CASE TITLE – Abdul Sukkur v. The State of Assam

CASE NUMBER – Criminal Appeal [J] no. 84/2017

DATED ON – 22.05.2024

QUORUM – Justice Manish Choudhury & Justice Robin Phukan

 

FACTS OF THE CASE

The accused-appellant had been charged with uxoricide. In order to bring home the charge of murder under Section 302, IPC, Both sides had examined 7 [seven] nos. of witnesses viz. [i] P.W.1 – Mahabbat Ali; [ii] P.W.2 – Rahima Begum; [iii] P.W.3 – Sahab Uddin; [iv] P.W.4 – Dr. Zakir Hussain Laskar; [v] P.W.5 – Abdul Mannan; [vi] P.W.6 – Samsul Islam; and [vii] P.W.7 – Ashim Ranjan Das. In addition, 7 [seven] nos. of documents were exhibited and those documents were – [i] Ext.-1 – First Information Report; [ii] Ext.-2 – Seizure list; [iii] Ext.-3 – PostMortem Examination Report; [iv] Ext.-4 – Inquest Report; [v] Ext.-5 – Sketch Map of the place of occurrence; [vi] Ext.-6 – Charge Sheet; and [vii] Ext.-7 – Certified copy of General Diary Entry. Two material exhibits viz. [i] Mat.Ext.-1 – Spade; and [ii] Mat.Ext.-2 – Broken lance, were also exhibited. P.W.1 informed over phone that in the previous night, his co-villager viz. Abdul Sukkur, that is, the accused killed his wife by assaulting her and the deadbody was lying inside his house. The I.O. of the case, P.W.7 commenced the inquest on the deadbody of the deceased, Jamila Begum at the place of occurrence at 11-30 a.m. and completed the same at 12-30 p.m. vide Ext.-4, Inquest Report. In Ext.-7, Inquest Report, it was described that the deadbody was lying in a sleeping position inside her dwelling house with cut marks on her head and knee. Ext.-7, Inquest Report was signed by P.W.1, Mahabbat Ali and P.W.3, Sahab Uddin.

 

ISSUE

Whether the evidence on record is adequate to point towards the guilt of the Accused-Appellant.

 

CONTENTIONS BY THE APPELLANT

The Learned Amicus Curiae appearing for the accused-appellant submitted that out of the 7 Nos. of prosecution witnesses, only one witness, that is, P.W.2 appeared to be present at the place of occurrence in and around the time when the incident had happened. P.W.2 and two other prosecution witnesses, that is, P.W.3 and P.W.5 were declared hostile by the prosecution. She stated that though the prosecution side had cross-examined the three of them, that is, P.W.2, P.W.3 and P.W.5, but none of them were confronted with their previous statements so as to prove any contradiction with their testimonies adduced before the court vis-à-vis their previous statements. The learned Amicus Curiae had further contended that though the incident had occurred inside the house of the accused-appellant and the deceased but they were not alone as there were other inmates in the house at the relevant time. None of the prosecution witnesses had attributed the act of assault to the accused-appellant and as such, the learned trial court had erred to reach a finding that the prosecution had brought the charge for the offence of murder beyond all reasonable doubts.

 

CONTENTIONS BY THE RESPONDENT

The Learned Additional Public Prosecutor appearing for the respondent State submitted that the entire testimonies of the prosecution witnesses who were declared hostile by the prosecution, were not washed off the records altogether. The remaining parts of the testimonies of the prosecution witnesses – P.W.2, P.W.3 and P.W.5, who were declared hostile, can be relied upon along with other corroborating evidence if such remaining parts of their testimonies are found creditworthy. The remaining parts of the testimonies of the hostile witnesses were found reliable enough to consider with other evidence/materials on record and stated that the learned trial court after proper appreciation of the entire evidence/materials on record, had rightly arrived at the finding on the charge of murder. The learned Additional Public Prosecutor submitted that from the evidence/materials on record, it had emerged that there was no possibility of any third person to commit the crime, and thus, it was the accused-appellant who had, in all probability, committed the murder of his wife.

 

COURT ANALYSIS AND JUDGEMENT

The Gauhati High Court stated that on a meticulous examination of the testimonies of the prosecution witnesses, they found that none of the witnesses had stated that he or she had witnessed the incident or any act of assault. It is also settled that merely because a witness is declared hostile his entire evidence is to be excluded from consideration. Merely because the court has given permission to the Public Prosecutor to cross-examine his own witness describing him as a hostile witness, it does not completely efface his evidence. The evidence remains admissible in the trial and there is no legal bar to base the conviction upon the testimony of such witness, if corroborated by other reliable evidence. It is for the court to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed with regard to a part of his testimony. They further pointed out that on a combined analysis of the above events stated to have occurred in the night intervening 29.11.2015 and 30.11.2015, as deposed by the afore-mentioned prosecution witnesses, it is found that none of them had made any specific mention about the time at which the incident inside the house of the accused had occurred though they said that it was in that night the incident had occurred. In view of such evidence, it is difficult to reach a finding as about the specific time of occurrence of the murderous assault on the deceased. The Hon’ble High Court stated that in case the prosecution has to bring home a charge on the basis of circumstances then also the principle that the prosecution has to prove its case beyond all reasonable doubts does not variate. Therefore, the prosecution is required to prove the case beyond all reasonable doubts by proving the entire chain of circumstances, not leaving any link missing for the accused to escape, and in the absence of any specific evidence as regards the time of occurrence, it was difficult for them to hold that the incident had occurred at a specific time in the night intervening 29.11.2015 and 30.11.2015. P.W.2 was the only witness who was present inside the house along with her parents and who had testified, and in her testimony, did not attribute anything adverse to the accused. The other prosecution witnesses were post-occurrence witnesses who did not witness the act of murderous assault on the deceased. It had also not emerged from the evidence/materials on record that the relationship between the accused and the deceased was not cordial. The Hon’ble High Court stated that in a case based on circumstantial evidence, motive assumes vital significance and it is considered to be a link in the chain, but no evidence was led by the prosecution on motive in the instant case. After which, The Hon’ble High Court held that the accused-appellant’s Criminal Appeal succeeds, because on appreciation of the evidence/materials on record in its entirety, it was not possible for them to hold that the prosecution was able to lead evidence which had unerringly pointed towards the guilt of the accused in respect of the murderous of assault on his wife during the relevant night by establishing all the circumstances conclusively and completely leaving no gap left in the chain to hold that it was only the accused who had perpetrated the crime and to rule out any possibility of any other person committing the crime. And in this circumstance, the benefit of the doubt has to go to the accused.

 

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Suo Moto Revision not for Minor Errors: Gauhati HC quashes order initiated without proper scrutiny

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CASE TITLE – Karan Jain v. Union of India & Ors.

CASE NUMBER – WP(C)/3999/2021

DATED ON – 08.05.2024

QUORUM – Justice Kaushik Goswami

 

FACTS OF THE CASE

The challenge made in this writ petition is the Show Cause Notice No. ITBA/REV/F/REV1/2020-2021/1031736689 (1) dated 24.03.2021 issued by respondent No. 2 initiating proceedings under Section 263 of the Income Tax Act, 1961 (herein after referred as ‘the Act’) for the assessment year 2017-18, and subsequent ex-parte Order No. ITBA/REV/F/REV5/2020-21/1031849150(1) dated 28.03.2021 passed by the respondent No. 2 under Section 263 of the Act for the assessment year 2017-2018. the petitioner has filed its original return under Section 139(1) of the Act for the assessment year 2017-18 on 01.08.2017 declaring a total income of Rs.43,95,310/-. Later, vide Notice No. ITBA/AST/S/143(2)/2018-19/1010911976(1) dated 09.08.2018 under Section 143(2) of the Act, the case of the petitioner was selected for “limited scrutiny” under Computer Assisted Scrutiny Selection (“CASS”). During the course of assessment proceedings, Show Cause Notice dated 29.09.2018 was issued by the then Assessing Officer (i.e. predecessor of respondent No. 4) and the same was duly replied to vide letter dated 19.12.2018 by the petitioner. Thereafter, the then Assessing Officer (i.e. predecessor of respondent No. 4) passed the final assessment under Section 153D/143(3) of the Act vide Assessment Order dated 28.12.2018, accepting the returned income of Rs.43,95,310/-. By Show Cause Notice dated 24.03.2021 the petitioner was directed to furnish reply thereto and appear for hearing on 26.03.2021 at 12 pm, thereby, giving only one day to the petitioner to respond to the said notice. Due to such short span of time, the petitioner could not attend the Show Cause Notice dated 24.03.2021. The respondent No. 2 thereafter vide his ex-parte Order No. ITBA/REV/F/REV5/2020-21/1031849150(1) dated 28.03.2021, held the Assessment Order dated 28.12.2018 passed by the respondent No.4 as erroneous and prejudicial to the interests of the revenue.

 

ISSUE

Whether the Assessment Order dated 28.12.2018 can be said to be erroneous and prejudicial.

 

LEGAL PROVISIONS

Section 263 of the Income Tax Act, 1961, the powers vested upon he Commissioner of Income Tax to revise orders passed by Assessing Officers if the Commissioner believes they are wrong and harm the government’s tax collection.

 

CONTENTIONS BY THE PETITIONER

The Learned Counsel for the Petitioner submitted that the power of suo moto revision under Section 263 of the Act is in the nature of supervisory jurisdiction and the same can be exercised only if the circumstances specified therein exists. Two circumstances must exist to enable the Commissioner to exercise the power of suo moto revision under Section 263 of the Act, i.e (i) the order is erroneous and; (ii) by virtue of the order being erroneous prejudice has been caused to the interest of revenue, and stated that it is not sufficient to show that the order is erroneous. It must be erroneous and also prejudicial to the interest of the revenue. If an order is erroneous but not prejudicial to the revenue, the Commissioner cannot exercise power under section 263 of the Act. He further submitted that the Respondent No. 2 in his impugned order dated 28.03.2021 has undisputedly failed to establish as to how the Assessment Order dated 28.12.2018 is prejudicial to the interest of revenue and as such the impugned Show Cause Notice dated 24.03.2021 and order dated 28.03.2021 are absolutely illegal, arbitrary and not tenable in law.

 

CONTENTIONS BY THE RESPONDENTS

The Learned Counsel, Income Tax Department submitted that the petitioner filed his return of income for the assessment year 2017-18 declaring the total income of Rs.43,95,310/-, wherein in the capital account, an amount of Rs. 36,89,039/- only was shown as long term profit on sale of shares and while in the computation sheet an amount of Rs.31,15,782/- only has been claimed as exempt under Section 10(38) leaving a discrepancy of Rs. 5,30,257/- which was not offered to tax. He further contended that the said discrepancy, the Assessment Order dated 28.12.2018 passed under Section 153(D)/143(3) of the Act is erroneous insofar as it is prejudicial to the interest of the revenue. He accordingly submits that in view of the fact that the said order is erroneous and prejudicial to the interest of the revenue, the Principal Commissioner of Income Tax correctly invoked the powers conferred under the provision of Section 263 of the Act on 28.03.2024. He stated that the said order dated 28.12.2018 is erroneous insofar as it is prejudicial to the interest of revenue because the said order was passed without making inquiries or verification which should have been made.

 

COURT ANALYSIS AND JUDGEMENT

The Hon’ble Gauhati High Court stated that after a reading of Section 263 of the Act, it is clear that the suo moto revision proceedings under section 263 of the Act can be exercised only when the Revisional Authority considers the Assessment Order to be erroneous in so far as the same is prejudicial to the interest of revenue. Thus, merely if the Assessment Order is erroneously done is not sufficient for exercising revisional jurisdictional power unless and until the same is prejudicial to the interest of revenue. Section 263 of the Act would not be invoked merely to correct a mistake or error committed by the Assessing Officer unless it has caused prejudice to the interests of the revenue. And in the present case, it is clear that suo moto revisional proceeding was initiated simply on the basis of a proposal under section 263 of the Act and there was no independent application of mind by the Principal Commissioner of Income Tax. The Hon’ble High Court held that the learned Principal Commissioner of Income Tax has initiated the proceedings simply on the basis of the proposal of the subordinate authority and has not applied his mind after perusal of the records called for by him and thereby the very initiation of the proceeding in the instant case is illegal, without jurisdiction and not tenable in law. They mentioned that the non-disclosure of Rs.5,30,257/- while computing the long-term capital gains cannot result in causing prejudice to the department. Pertinent, that the net long-term capital gain was shown in the return after deduction of the long-term capital loss and both the long-term capital gains and long-term capital loss were duly shown in the return. In any case even if the said amount of Rs.5,30,257/- is further considered to be as long-term capital gain there would have been no further Income Tax Liability and thereby no prejudice would have been caused to the department and thereby the preconditions for the exercise of powers under Section 263 of the Act were wholly not fulfilled in view of the fact that the said amount of Rs.5,30,257/- being long-term capital gain is exempted, and held that therefore, by no stretch of imagination, non-disclosure of the said amount in the computation sheet can be said to be prejudicial to the interest of revenue and no loss of revenue. The Hon’ble High Court proceeded to state that the Show Cause Notice No. ITBA/REV/F/REV1/2020- 2021/1031736689(1) dated 24.03.2021 and subsequent ex-parte Order No.ITBA/REV/F/REV5/2020-21/1031849150(1) dated 28.03.2021 is hereby set aside and quashed.

 

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Ensuring Fairness and Legal Clarity”: Gauhati High Court Rules on Critical Assam Land Acquisition Dispute

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Case Name: Prafulla Govinda Baruah vs. The State of Assam and Anr.

Case Number: WP(C)/2919/2018

Date of Judgment: May 14, 2024

Quorum:

  • Hon’ble Chief Justice Mr. Vijay Bishnoi
  • Hon’ble Mr. Justice N. Unni Krishnan Nair

FACTS OF THE CASE

The case involves two writ petitions filed before the Gauhati High Court, WP(C)/2919/2018 and WP(C)/283/2024, challenging the constitutional validity of Article 11 of Schedule 1 of the Court Fees Act, 1870 (Assam Amendment). Late Tulsi Govinda Barua, brother of the petitioner in WP(C) No.2919/2018, executed his last Will and Testament on 17.05.2010. The petitioner, named as the Executor in the Will, applied for grant of probate before the District Judge, Kamrup, Guwahati, after his demise on 17.11.2012. The District Judge granted probate of the last Will subject to payment of due Court fees on the property’s present value. The valuation of the properties amounted to around Rs.3 Crores, requiring a court fee of over Rs.28 Lakhs. The petitioner, being over 90 years old and merely an Executor, not a beneficiary, faced difficulty in paying the substantial court fee. Various alternatives were explored, but none proved feasible. Hence, the petitioner challenged the constitutional validity of the court fee levy through a writ petition under Article 226 of the Constitution of India. Similarly, in WP(C) No.283/2024, the petitioner approached the Court challenging the same provision as the court fee required for obtaining probate as the executor of her father’s property was substantial. The petitioners argued that the Court Fees Act, a measure to regulate fees in public offices and certain matters in the state, unfairly imposed an ascending scale of fees for obtaining probate or letter of administration, ranging from 2% to 7% ad valorem without an upper limit, violating Article 14 of the Constitution of India. They pointed out that other states like Maharashtra, Karnataka, Kerala, Tamil Nadu, and West Bengal had provisions with upper limits on probate fees, highlighting the discriminatory nature of Assam’s law. The State justified the fee levy, citing the importance of revenue for developmental activities. They argued against a uniform cap on fees, considering the differing financial conditions of states. The court, after considering various Supreme Court judgments, concluded that the fee should correlate with the services rendered and not be used to increase general revenue. It found the lack of an upper limit for probate fees in Assam discriminatory and ultra vires Article 14 of the Constitution. Thus, the Gauhati High Court declared Article 11 of Schedule 1 of the Court Fees Act, 1870 (Assam Amendment) unconstitutional and directed the state to reconsider and rationalize the fee levy.

ISSUES

  • Whether the Constitutional Validity of Article 11 of Schedule 1 of the Court Fees Act, 1870 (Assam Amendment) is upheld.
  • Whether the provision violates Article 14 of the Constitution (Right to Equality):
  • Whether the levy of court fees is equitable and fair.

LEGAL PROVISIONS

Article 226 of the Constitution of India:

  • The petitioners filed the writ petitions under this article, which empowers High Courts to issue certain writs for the enforcement of fundamental rights and for any other purpose.

Article 14 of the Constitution of India:

  • The petitioners invoked this article, which guarantees the right to equality before the law and equal protection of the laws within the territory of India. They argued that the impugned provision violates this article due to its discriminatory nature.

Article 11 of Schedule 1 of the Court Fees Act, 1870 (Assam Amendment):

  • This provision pertains to the levy of court fees for the grant of probate or letters of administration at a rate of 7% ad valorem where the value of the properties exceeds Rs.5,00,000, without any upper limit.

Assam Court Fees (Amendment) Act, 1950:

  • This amendment brought into effect the provision under challenge, specifically the ad valorem court fee rate for probate or letters of administration.

CONTENTIONS OF THE APPELLANT

The appellants argued that the ad valorem court fee provision under the Assam Court Fees (Amendment) Act, 1950, violates Article 14 of the Constitution of India. They contended that it creates an unreasonable and arbitrary classification by imposing disproportionately higher fees on individuals with larger estates, leading to discrimination. The appellants claimed that the 7% ad valorem fee on estates exceeding Rs. 5,00,000 is excessive and not justified by the services rendered by the judiciary. They argued that court fees should cover judicial service costs, and the impugned provision deviates from this principle, effectively functioning as a revenue-raising measure. The appellants noted that other states like Maharashtra, Karnataka, Kerala, Tamil Nadu, and West Bengal have reasonable caps on court fees for probate and letters of administration. The absence of a cap in Assam imposes undue financial burdens on its citizens, leading to inequality and injustice. The appellants referred to Supreme Court judgments, such as: Zenith Lamp and Electrical Ltd. vs. The Secretary, Government of Madras, Home Department & Anr. (1973), P.M. Ashwathanarayana Setty & Ors. vs. State of Karnataka & Ors. (1989), P.R. Sriramulu & Anr. vs. Secretary to Government of Madras (1996) These cases support the view that excessive court fees without an upper limit violate Article 14 and are unconstitutional. The appellants argued that the high court fees create a significant financial barrier, deterring individuals from seeking probate or letters of administration, thus undermining access to justice and the rule of law.

CONTENTIONS OF THE RESPONDENT

The respondents argued that the ad valorem court fee under the Assam Court Fees (Amendment) Act, 1950, serves a legitimate state interest by generating revenue. They contended that court fees contribute significantly to the state’s resources, which is essential for maintaining and improving judicial infrastructure and services. The respondents maintained that the court fee structure is based on a rational classification. They argued that estates of higher value can afford to pay more, and the ad valorem fee structure ensures that those who can pay more contribute more to the state resources. This, they claimed, is a reasonable and equitable way to structure court fees. The respondents contended that while other states may have different court fee structures, this does not automatically render Assam’s structure unconstitutional. They argued that each state has the discretion to design its court fee system based on its unique financial needs and administrative considerations. The respondents referred to precedents where the Supreme Court upheld ad valorem court fees as constitutionally valid. They argued that the principle of higher fees for higher claims is well-established and recognized by the judiciary, indicating that Assam’s court fee structure is in line with legal norms. The respondents asserted that the court fees do not impede access to justice. They argued that the fees are proportional to the value of the estate and do not constitute an unreasonable barrier. Additionally, they pointed out that mechanisms exist for individuals facing genuine financial hardship to seek relief or exemptions from court fees.

COURT’S ANALYSIS AND JUDGEMENT

The Supreme Court analysed the constitutional validity of the Assam Court Fees (Amendment) Act, 1950, focusing on whether ad valorem fees violated Articles 14 and 19(1)(g) of the Constitution. The Court found the fee structure, which scales with the estate’s value, to be constitutional. It recognized the state’s authority to levy such fees as long as they are not excessive or arbitrary. The Court evaluated the reasonableness and rationality of the fee structure, concluding that the classification based on estate value was rational and served a legitimate state interest. It upheld the principle that those with higher value estates could contribute more to state revenue, aiding judicial system maintenance and improvements. Therefore, the classification was neither discriminatory nor arbitrary.

In comparing Assam’s fee structure to other states, the Court noted that variations in court fee structures among states do not imply inequality or unconstitutionality. Each state has the discretion to design its system based on its unique needs. The differences did not render Assam’s structure unconstitutional. The Court referenced precedents where ad valorem fees were upheld, emphasising that this fee principle is well-established and judicially recognized. It found Assam’s structure consistent with legal norms and precedents.

Addressing concerns about access to justice, the Court acknowledged the need to ensure fees do not become barriers. It found that existing provisions for exemptions and relief in genuine financial hardship cases provided adequate safeguards. The fees imposed were deemed proportional and did not unreasonably impede access to justice.

The Supreme Court upheld the constitutional validity of the Assam Court Fees (Amendment) Act, 1950, ruling that the ad valorem fee structure did not violate Articles 14 or 19(1)(g) of the Constitution. The appeals were dismissed, affirming that the fee structure was reasonable, served legitimate state interests, and did not hinder access to justice.

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 Judgement Reviewed by – Shruti Gattani

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Gauhati High Court rejects petition against Assam Public Service Commission recruitment finding no violation of reservation policy.

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Case title:  RAIHANA AKHTAR VS THE STATE OF ASSAM

Case no.:   WP(C)/3534/2017

Dated on: 3RD May 2024

Quorum:  Hon’ble. MR Justice SANJAY KUMAR MEDHI

FACTS OF THE CASE

The controversy raised in this petition filed under Article 226 of the Constitution of India is in connection with a recruitment process initiated by the Assam Public Service Commission (APSC) for different posts of Lecturers in the Nursing Colleges of Assam. The petitioner has structured his petition on two principal grounds, firstly, violation of the reservation policy and secondly, the mode adopted for such selection.

ISSUES

  • Whether the petitioner’s claims regarding the selection process are factually and legally tenable based on the evidence and submissions provided.
  • Whether the selection based solely on viva-voce was legitimate given the number of applications received and the stipulations in the advertisement.
  • Whether the Assam Public Service Commission (APSC) violated the reservation policy in the selection process for the post of Lecturer in the O&G Department in Nursing Colleges of Assam.

LEGAL PROVISIONS

Constitution of India

Article 226 of the Constitution of India: Provides the High Courts with the power to issue certain writs. The petitioner invoked this article to challenge the recruitment process conducted by the Assam Public Service Commission (APSC). Article 226 allows individuals to seek judicial review of any action by the state or public authorities that they believe violates their fundamental rights or legal entitlements.

CONTENTIONS OF THE APPELLANT

Shri Bhuyan, learned counsel for the petitioner has submitted that amongst the various posts advertised, there were 5 nos. of posts of Lecturer in the O&G Department for which, the petitioner had applied. Out of the 5 vacancies, 3 were for unreserved category and 2 for reserved category. It is not in dispute that the petitioner belongs to the unreserved category. The petitioner on her application, was issued a call letter on 30.08.2016 and the interview was scheduled on 05.09.2016 in which, the petitioner had appeared, However, in the results published, the petitioner was not amongst the selected candidates. Shri Bhuyan, learned counsel for the petitioner has submitted that the communication towards declaration of results dated 24.03.2017 would indicate that only one general category candidate has been selected for appointment as Lecturer in O&G Department and the 4 other vacancies have been filled up by reserved category candidate. The learned counsel has, however, fairly submitted that from the affidavit-in-opposition filed by the APSC, it transpires that two of the selected candidates who belong to reserved category candidate have been. treated as general category on account of their merits. He, therefore, contends that he would not press upon the said ground of challenge. Shri Bhuyan, learned counsel, however, has strenuously canvassed that the procedure adopted for selection is not in terms of the stipulations made in the advertisement. By referring to the mode indicated in the advertisement, it is submitted that the selection was to be held by written test/interview and it stipulates that the Commission may short-list the candidates either on the basis of the marks obtained in the qualifying academic examination required for the post in question or by holding screening test (multiple choice objective type written examination) which would be notified. It is submitted that none of the procedures were adopted and only on the basis of viva-voce, the selection has been done which is not as per the mode indicated in the advertisement. The learned counsel, accordingly submits that the selection is to be interfered with and the candidature of the petitioner be considered in proper perspective.

 CONTENTIONS OF THE RESPONDENTS

Shri Mahanta, learned Senior Counsel representing the APSC, however, has submitted that even the existing ground of challenge is, both factually and legally untenable. He submits that the interpretation of the mode given on behalf of the petitioner is not correct. It is submitted that under heading ‘C’, the precondition for going for short listing the candidates on the basis of the marks obtained in the qualifying academic examination or by holding a screening test is that the number of applications should be large. By drawing the attention of this Court to the affidavit-in-opposition filed by the APSC on 06.01.2024, the learned Senior Counsel has submitted that for the 5 nos. of vacancies in the post of Lecturer O&G, the total number of applications received were 16. It is submitted that the said number of 16 is even less than the number which is envisaged for maintaining a ratio of 1:6. It is accordingly submitted on the behalf of the APSC that there was no requirement for adopting either of the two modes for short listing and the candidates were accordingly interviewed based upon which, the selection has been made. It is further submitted that the mode of selection as such, by interview is not the subject matter of challenge as the petitioner had participated in the said selection process without any objection. Shri Borah, learned Standing Counsel, Health Department while endorsing the submissions made on behalf of the APSC has further submitted that the APSC is the statutory body through which selections are made and there does not appear that there has been any anomalies in the said selection. He accordingly prays for dismissal of the writ petition.

 COURT’S ANALYSIS AND JUDGEMENT

On consideration of the submissions made and the materials placed on record, this Court has noted that the first ground regarding the allegation of violation of the reservation policy has appeared to be factually untenable in view of the facts projected in the affidavit-in-opposition of the APSC that two candidates of reserved category has been appointed in the vacancy meant for unreserved category on the basis of their merits. The aforesaid provision of the advertisement has clearly indicated the mode of selection as written test/interview. The said heading further stipulates two options of short listing the number of candidates on the basis of the marks obtained in the qualifying academic examination or by holding screening test. It is, however, noted that either of the two options are to be exercised only when the application received is large. In the instant case, admittedly, for 5 nos. of vacancies, the total number of applications received is 16. Therefore, there was no requirement at all for adopting either of the two options and accordingly, the candidates who had applied were subjected to a viva-voce test. The petitioner having participated in the said selection process in the mode adopted by the advertisement without any demur will not be allowed to challenge the mode that too, on a ground which apparently appears to fallacious. This Court is of the considered opinion that the grounds of challenge structured is both legally and factually untenable and accordingly, the writ petition is dismissed. 

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Judgement Reviewed by – HARIRAGHAVA JP

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