#HighCourt Archives - Page 2 of 18

2 Apr

Appeals against the Contempt orders of Central Administrative Tribunal (CAT) available only before the Supreme Court and not High Court: Allahabad High Court

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Case title: Dr Brajendra Singh Chauhan & Ors. Vs Central Administrative Tribunal & Ors

Case no.: Writ Application No. – 602 of 2024

Order on: March 22nd, 2024

Quoram: Justice Vivek Kumar Birla and Justice Donadi Ramesh

Facts of the case

The petitioners who were initially appointed as Short Term Medical Officers had approached the Central Administrative Tribunal (CAT), Allahabad Bench and sought to issue an order to the respondents for their appointment as regular Assistant Medical Officers. The CAT ruled in favour of the petitioners. However, the petitioners alleging non-compliance of the order by the respondents again approached the CAT by filing a contempt petition under the provisions of the Contempt of Courts Act, 1971. The Tribunal noting a substantially compliance of the order by the respondents disposed of the application. Aggrieved by the same, the petitioners appealed before the Allahabad High Court under Article 226 of the Constitution.

The Respondent’s Counsel submitted that the writ petition is not maintainable under Article 226 by citing Section 17 of the Administrative Tribunal Act, 1985 (AT Act) in conjunction with Section 19 of the Contempt of Courts Act, 1971 (CC Act).

Legal Provisions

Article 323A – It empowers the Parliament to enact the law providing for adjudication or trial by Administrative Tribunals and specifies the jurisdiction and powers of such Tribunals including their power to punish for contempt.

Section 14 & Section 15 of the AT Act – It specifies the jurisdiction, powers and authority for the Central Administrative Tribunal and State Administrative Tribunal respectively.

Section 17 of the AT Act – It empowers the Tribunal to punish for contempt of court and exercise its power similar to the High Court with regard to provisions of the Contempt of Courts Act, 1971.

Section 12 of the CC Act – It provides Punishment for Contempt of Court.

Section 19 of the CC Act – It provides that the appeals against the orders of Tribunal shall lie as a matter of right to the Bench of at least two Judges of High Court, where the contempt order is passed by the Single Judge and it shall lie to the Supreme Court where the order is passed by the Bench.

Court’s Analysis and Judgement

The Court addressing the question of maintainability of writ petition filed before the High Court against the orders passed under the Contempt of Courts Act delved into Article 323 A, Sections 14 & 17 of the AT Act and Sections 11, 12 & 19 of the CC Act. It drew a distinction between the orders passed by the Tribunal under Section 14(1) of the AT Act and the order passed under Section 17 of the AT Act. The Bench noted that the while there is no statutory remedy of appeal available under the former, the latter provides the same by virtue of Section 19 of the CC Act. Further, it noted that since the contempt proceeding under Section 17 of the AT Act is dealt with by a bench of not less than two members, the orders passed would be appealable only before the Supreme Court. Hence, it ruled that any order or decision of the Tribunal under the Contempt of Courts Act shall be appealable only to the Supreme Court within 60 days from the date of the order.

The Court heavily relied on the precedence laid down in the cases of T. Sudhakar Prasad Vs Government of A.P. and L. Chandra Kumar Vs. Union of India and held that the orders of the Tribunal under the Contempt of Courts Act shall be appealable only before the Supreme Court and no writ petition against the same shall be maintainable before the High Court under Article 226 / 277 of the Constitution of India. Accordingly, it dismissed the present petition citing the lack of maintainability. This judgement thus, throws light on the jurisdictional scope of appeals arising from contempt proceedings under Section 17 of the Administrative Tribunals Act and clears line on the exclusive appellate jurisdiction of the Supreme Court in matters regarding contempt orders issued by the Tribunal.

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Judgement Reviewed by – Keerthi K

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12 Mar

Bombay High Court: Tendering Authority’s actions are arbitrary in GST matters

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Case Title: M/s. H.P.Ghumare versus The state of Maharashtra, The Principal Secretary, The District Collector and The Resident Deputy Collector.

Case No: Writ Petition No.12103 of 2023

Decided on: 6th March,2024

Quorum: Judge SMT. Vibha Kankawadi and Judge S.G.Chapalgaonkar.

Facts of the case:

Respondent 4 invited petitioners and the other two lowest bidders to negotiate the rendering authority. Due to the petition’s delay, the respondent no. 3 passed a decision on November 20, 2023, disqualifying the petitioner even though he was the highest bidder and deemed competent. On July 13, 2023, the district collector respondent number three issued an e-tender notification. The request for bids to provide the district with water tankers. The petitioner provided all necessary paperwork. There were eight bidders that entered this tender. They were all deemed eligible to receive tender notices. During the financial bid opening, L1 was the petitioner’s lowest bidder. Additionally, his proposal was 43% less than the reported estimate of the price in E notification of tender. According to the petitioner, who stated that the tender was GST-exempt, three bidders were called to negotiate in the respondent’s office. However, a different bidder qualified for the bidding procedure even though they did not submit their GST numbers. In his statement, the petitioner acknowledged that his GST registration had been canceled. He was found ineligible on the grounds that he had not complied with Tender Condition No. 11.The petitioner’s learned attorney, Miss Pradnya Talekar, argued that condition no. 11 of the tender was not necessary because services for the task under tender are GST exempt. In the technical review that followed the tender notice on July 13, 2023, the petitioner and the other bidders were found to be qualified.

Petitioner Contentions :

The petitioner contends that he is a reputed contractor and since 2021, has undertaken the work of water supply through tankers under various contracts. Respondent No. 3: District Collector, Beed, had floated an E-Tender notice Dated 12.07.2023, inviting bids for the supply of water tankers in District Beed. As per Schedule, the petitioner submitted his bid along with the requisite documents. All eight bidders participated in the tender process. On technical scrutiny, all eight (8) participants were declared qualified. She relies on the observations of the Supreme Court of India in the case of Poddar Steel Corporation vs Ganesh Engineering Works and others reported in [(1991) 3 SCC 273] to contend that the tendering authority is entitled to give up tender conditions of little or no significance. Considering the nature of the contract and the non-applicability of GST for the work under tender, such a condition was waived. It is well settled that tendering. Authority may deviate from and not insist upon the strict literal compliance of the condition in appropriate cases. The aforesaid aspect has been considered by the Supreme Court of India in the case of C.J. Fernandez vs State of Karnataka reported in (1990) 2 SCC 488, and also in the case of Ramana Dayaram Shetty vs. International Airport Authority of India reported in (1979) 3 SCC 489.

Respondent Contentions:

Respondent no.3 issued a communicated dated 17/20.11.2023 disqualifying the petitioner from E-Tender process giving reason that false information regarding ‘GST’ number was incorporated in the tender submitted by the petitioner. He submitted representation for execution of the agreement, however, to his surprise, he received a communication/notice dated 25.9.2023 by which 3 (two) lowest bidders including the petitioner were invited for negotiations in the office of Respondent No.3. Petitioner objected to such notice being contrary to the terms of tender as well as the government circulars and rule-book published by the Government. Petitioner has further pointed out that he has successfully supplied the requisite number of the tankers in past and possess best experience. The court quashed the communication, declared the petitioner qualified as the Lowest Bidder (L-1), and allowed participation in the E-Tender process initiated on 13.7.2023. The writ petition was disposed of ruling in favor of the petitioner without costs.

Court Analysis and Judgement:

The court found the actions of the tendering authority arbitrary .The petitioner’s objections regarding GST registration were considered, leading to the decision in the petitioner’s favor. It is therefore, evident that waiver of condition No.11 by the Tendering Authority was based on rationality. Such a waiver is neither a mistake of fact or accidental omission. This appears to be a thoughtful decision to waive unessential tender condition. Learned counsel appearing for the petitioner invited our attention to the similar tenders floated in various other districts, by which the condition regarding GST has been waived by the Tendering Authority. We are therefore, of the considered view that the Tendering Authority/Respondent no.3 has chosen not to insist on condition no.11 since it was of little or no significance or it was classified as non-essential condition of eligibility being ancillary or subsidiary with main object to be achieved by the condition. It is well settled that Tendering Authority may deviate from and not to insist upon the strict literal compliance of the condition in appropriate cases. The judgment was delivered by S.G. Chapalgaonkar and Smt. Vibha Kankanwadi, quashing the communication and subsequent disqualification order. The case is ruled in favor of the petitioner, partially allowing the Writ Petition.

Judgement Analysis Written by – K.Immey Grace

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27 Feb

Producing the documents during cross examination is permissible under law: Supreme Court

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The case of Mohammed Abdul Wahid Vs Nilofer & Anr. (Special Leave Petition (Civil)No.14445 of 2021), there were two contradictory judgements by the high court of Bombay single bench. The judgements address the difference between a party to a suit and a witness in a suit, as well as when it is permissible to produce documents directly during cross-examination. The court determined that a witness and a party to a suit are not the same, and evidence cannot be produced during cross-examination. On appeal, the division bench upheld the decision. The current petition concerns the validity of Bombay High Court judgements.

The court concluded that neither a witness nor a party to a suit serves a different purpose in the witness box and that Order XVI Rule 21’s “so far as it is applicable” clause does not suggest otherwise. It was noted that neither the Plaintiff nor the Defendant is prohibited from appearing before the court to present evidence by the term “witness.”

In regards to the production of evidence, the court decided that the parties to the lawsuit would also profit from the freedom to produce documents for the two purposes of cross-examining witnesses and refreshing one’s memory. The court noted that if these documents are not used to properly ask questions of and receive answers from either party in a lawsuit, the other party may not be able to adequately prove their case, which could seriously jeopardise the proceedings. As a result, the proposition that the law distinguishes between a party to a suit and a witness for the purposes of evidence is invalid. It is well established law that what is not pleaded cannot be argued, because the other party must be aware of the contours of the case in order to adjudicate it.

Written by – Surya Venkata Sujith

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23 Feb

The supreme court court overturned the high court’s order to dismiss the contempt application due to noncompliance.

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Case title: Domco Smokeless Fuels Pvt Ltd vs State Of Jharkhand

Case no.: SLP(Civil) No(s). 34194 of 2016

Decided on: 22.02.2024

Quorum: Hon’ble Justice B.R Gavai, Hon’ble Justice Sandeep Mehta

Hon’ble Justices stated that, “the claim of the appellant for refund pertaining to the third period, i.e. 1st January, 2007 till March, 2008 stands concluded with the rejection of SLP(Civil) No. 21019 of 2010 vide order dated 9th September, 2010 passed by this Court. Admittedly, the appellant has not been refunded the amount for the period running from 1st January, 2007 till March, 2008 and, therefore, the learned Single Judge was not justified in discharging the respondents in the contempt case without ensuring payment of the refund amount with interest to the appellant herein.”

BRIEF FACTS:

In an online auction run by the respondent, the appellant alleges to have paid more than the price announced in exchange for the lifting of coal shipments. After the coal was removed, the appellant and other similarly situated companies sought a refund of the amount they paid in excess of the notified price. However, the appellant’s request for a refund was denied, so it filed a Writ Petition in the Jharkhand High Court, claiming a refund of the excess price paid by it over and above the notified price for the respondent Company’s e-auction of lifting coal consignments.

The appellant filed a case for the violation of order passed in Writ Petition by the High Court of Jharkhand, citing non-payment of the amount collected in excess of the notified price as well as interest.

The appellant has approached this Court to challenge the order issued by the Single Judge bench of the High Court of Jharkhand, which dismissed the appellant’s contempt application alleging noncompliance with the court’s order.

COURT ANALYSIS AND CONCLUSION:

The court stated on the high court’s order that the appellant had not received the refund for the period from January 1st, 2007 to March 1st, 2008, and that the learned single judge was therefore not justified in dismissing the respondents in the contempt case without guaranteeing that the appellant would receive the refund amount plus interest.

The court allowed the appeal, ruling that the respondents failed to diligently comply with orders issued by both the Jharkhand High Court and this Court. As a result, it hereby orders that the appellant be entitled to interest at 12% per annum on the refund amount from January 1st, 2005 to December 11th, 2005. The already paid interest of 3.5% per annum will be taken out from the differential amount. The appellant is also entitled to a refund of the excess amount paid from January 1, 2007 to March 1, 2008, with interest at 12% per annum, in the same terms provided by this Court.

Written by – Surya Venkata Sujith

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15 Feb

The High Court upheld the wakf tribunal’s decision to take the respondent’s land off the wakf board.

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Case title: Sayyed Moinuddin vs Pratap Singh,

Case no.: Civil Revision Application No.3 Of 2021

Decided on: 14.02.2024

Quorum: Hon’ble Justice S.G Mehare

FACTS OF THE CASE:

The current application is based on the order of the Maharashtra State Wakf Tribunal. The respondent had filed a suit before the Maharashtra State Wakf Tribunal in Aurangabad, seeking a declaration that the orders of the Chief Executive Officer of the Maharashtra State Wakf Board, including Survey Gut No.66 in the Book/register of Waqf, maintained by the Board and passed by the C.E.O., pursuant to the so-called entry in the concerned Gazette, are time-barred, hollow, inactive, in-executable, null and void, and not binding on the respondent’s rights. The order, which included the property Gut No. 66 in the Board’s Waqf Book/Register, is quashed and set aside. Furthermore, the declaration has been sought that the Board’s C.E.O.’s order directing the respondents to remove his possession from the suit land is invalid in law. A perpetual injunction prohibiting the applicants from interfering with their ownership and peaceful possession of the Suit land Survey No.66 was also requested.

ISSUE:

Was the Suit not maintainable under Section 54 (4) of the Wakf Act 1995?

LEGAL PROVISIONS:

Section 54 of the Wakf Act 1995 addresses the removal of encroachment on waqf property. Section 54(4) of the Act 1995, prior to its amendment, has been discussed. It allows the person who is dissatisfied with the C.E.O.’s orders to file a lawsuit. Its proviso clause prohibits the person in possession from filing a suit under the said section if the Mutalwali allowed him to possess the land as a lessee, licensee, or through a mortgage.

APPLICANTS CONTENTION:

They claimed that the order under Section 54 was issued following the 2013 amendment. As a result, the suit was not maintainable. The suit against such orders should have been filed within 60 days. As a result, the suit was time-barred. The issue of the plaintiff’s locus to file suit was not framed, despite being specifically requested in an application. While deciding on the application, it was discovered that the applicants could effectively argue their point. That was the subject of cross-examination for the witness. However, the learned Tribunal did not address that important issue. It is a good reason to refer the case back to the learned Tribunal. The respondents have admitted the Muntakhab. But it was a composite Muntakhab. If the Muntakhab is composite, the law presumes that the lands included in it are service Inam lands. The Suit land was a service Inam property. The learned Tribunal made no mention of any of the case law on which they relied.

RESPONDENTS CONTENTION:

The respondents emphasised that the suit land was the Inam land. His forefathers were tenants since 1925. They’ve been protected tenants since 1979, and he was granted occupancy certificates. Before publishing the Government Gazette, the Survey Commissioner did not give notice, did not go through the revenue record, and automatically included the Suit land in the Gazette as a Wakf property. The registration was approved on the basis of Muntakhab. Nobody was looking after or maintaining the Suit land. The order abolishing Inam and the tenancy rights was never challenged. As a result, the Tribunal has correctly decided not to consider or disturb it.

COURT ANALYSIS AND JUDGEMENT:

The court ruled that the Tribunal’s orders holding the respondent tenant in the suit land were never challenged. The Board’s jurisdiction under Section 54 of the 1995 Act prevented it from interfering with the respondebt’s rights under the aforementioned orders. It stated that the learned Tribunal had framed the issues based on controversial facts and addressed each and every point raised for consideration. It appears that the learned Tribunal has considered each party’s submissions, discussed the evidence, and recorded the correct findings. The challenged orders are free of illegality and infirmity. As a result, there is no reason to interfere. Applications have been dismissed.

Written by – Surya Venkata Sujith

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