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“Legal Battle Unfolds: Roshanara Club Seeks Possession, Court Directs DDA to Devise Club Management Scheme”

Title: SH. MANISH AGGARWAL vs. THE ESTATE ORRICER & ORS

Citation: W.P.(C) 14739/2023

Coram: HON’BLE CHIEF JUSTICE & HON’BLE JUSTICE TUSHAR RAO GEDELA

Decided on: 9-11-23

Introduction:

In this case, the petitioner has approached the court seeking various reliefs. The petition challenges the constitutional validity of Section 3 of The Public Premises (Eviction of Unauthorized Occupants) Act, 1971. It also disputes the sealing and locking of Respondent No. 4 Club’s premises on September 29, 2023, based on an order from September 27, 2023, alleging it to be unconstitutional and violative of fundamental and statutory rights. Additionally, the petitioner seeks to declare the sealing as void ab initio, citing contravention of rule 7 of the mentioned Act. The petition further calls for the quashing of a Draft Policy to run the club, asserting that it goes against the statement made by the Additional Solicitor General in a previous order. The petitioner requests the court to grant any other necessary relief deemed fit in the circumstances of the case.

Facts:

The case involves Roshanara Club Limited (RCL), established in 1922, operating on land allotted under lease deeds by the Secretary of State for India and the Delhi Development Authority (DDA). The extended lease lapsed on December 31, 2017. RCL sought renewal, but after a series of communications, an eviction notice was issued on April 12, 2023. RCL filed a writ petition challenging the eviction notice with specific reliefs. The learned Single Judge, while noting the challenge to the eviction notice was not maintainable, issued an interim direction restraining coercive action against RCL solely based on the expired lease. The order allowed RCL to pursue statutory remedies against the eviction notice. The DDA appealed, and an order on June 2, 2023, directed the Principal District Judge to decide the appeal without being influenced by the High Court’s order. The case is scheduled for further proceedings on September 13, 2023.

Judgement analysis:

In the given case, the Division Bench of the Court did not grant relief to Roshanara Club. Instead, it directed the Delhi Development Authority (DDA) to devise a scheme for running the club and did not hand over possession to the ex-management of the club. Subsequently, a Special Leave to Appeal (SLP) was filed before the Hon’ble Supreme Court, seeking restoration of possession to Roshanara Club, but the relief was not granted.

Following these events, a new petition was filed by certain club members. However, the court, considering that it is already dealing with the issue of running the club and that a related writ petition is pending, decided not to grant interim relief in the present petition. The court noted that the DDA is in the process of finalizing a scheme for the smooth running of the club, and accordingly, rejected the prayer for interim relief. The case is scheduled for further proceedings along with LPA No. 497/2023 on December 7, 2023.

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“IBC Moratorium: Court Affirms Legality of Tax Proceedings During Resolution, Dismisses Petitioner’s Challenge”

Title: PLATINO CLASSIC MOTORS INDIA PVT.LTD vs. DEPUTY COMMISSIONER OF CENTRAL TAX AND EXCISE AND ORS.

Citation: WP(C) NO. 7997 OF 2023

Coram: JUSTICE DINESH KUMAR SINGH

Decided on: 20-10-23

Introduction:

In this writ petition, the petitioner, a dealer of BMW cars in Kerala, challenges the orders identified as Exhibits P-7, P-8, P-9, and P-10. The legal dispute arises from an application filed by the Federal Bank of India under Section 7(4) of the Insolvency and Bankruptcy Code, 2016 (IBC) for initiating the corporate insolvency resolution process against the petitioner. The National Company Law Tribunal, Cochin, admitted the application on March 8, 2021, as per Exhibit P-1. Following the admission, an Interim Resolution Professional (IRP) was appointed to manage the affairs of the petitioner. However, the resolution plans submitted by the applicants were rejected by the Committee of Creditors. Since no resolution plan was accepted, the Committee of Creditors decided to seek a directive from the National Company Law Tribunal, Cochin, for the liquidation of the petitioner’s company. The present writ petition challenges the orders related to these proceedings.

Facts:

In this case, an order of liquidation was issued on September 30, 2022, pursuant to Section 33 of the Insolvency and Bankruptcy Code (IBC) by the National Company Law Tribunal, Cochin. The Interim Resolution Professional (IRP) was appointed as the Liquidator, initiating a moratorium under Section 33(5) of the IBC. The petitioner’s Liquidator received claims from the first respondent, consisting of five items, in response to a public notice.

The petitioner contends that orders (Exhibits P-7 to P-10) forming the basis of the five claims were issued after the commencement of the moratorium on March 8, 2021, and argues that the petitioner was not given an opportunity to present and contest the case.

The respondent’s counsel argues that notice was indeed issued to the petitioner, a reply was filed, and the authorized representative was heard. The respondent disputes the claim that the petitioner was not heard during the issuance of orders in Exhibits P-7 to P-10. Additionally, the respondent contends that ongoing assessment proceedings and adjudication under Section 14 of the IBC are not barred. The assessment orders (Exhibits P-7 to P-10) were allegedly completed in compliance with statutory requirements, and the Official Liquidator’s absence during the finalization of the assessment should not invalidate these orders. The court considers these arguments in its evaluation of the case.

Judgement analysis:

The judgment in this case clarifies that Section 14 of the Insolvency and Bankruptcy Code (IBC) does not prohibit the finalization of assessment and adjudication proceedings related to taxes during the resolution process. The court refers to both Section 14 of the IBC and various judgments from High Courts and the Supreme Court to support this interpretation.

The court specifically notes that while there is a moratorium on the recovery of tax dues after the admission of the reference, there is no legal barrier to completing assessment and adjudication proceedings. Upon reviewing the impugned orders (Exhibits P-7 to P-10), the court finds that the petitioner was issued a notice, responded to it, and was heard during the finalization of these orders. Therefore, the court dismisses the petitioner’s argument that the absence of the Official Liquidator during the hearing makes the orders invalid.

The judgment concludes by dismissing the writ petition and instructs the Official Liquidator to consider the five claims of the petitioner in accordance with the law.

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High Court of Bombay decision regarding the issue of improper sanction having been obtained has been raised.

High Court of Bombay decision  regarding the issue of improper sanction having been obtained has been raised.

Title : Chandar Mahadev Naik v. Income Tax Officer, Ward 5 and Ors.

Case No. : W.P (L) NO. 17578/2023

CORAM : HONBLE JUSTICE K.R. SHRIRAM & NEELA GOKHALE.

Decided on : 30 th OCTOBER 2023

Introduction

High Court of Bombay decision  regarding the issue of improper sanction having been obtained has been raised. These petitions relate to A.Y. 2016-2017. Counsel states that in these petitions the issue of improper sanction having been obtained has been raised amongst other grounds.

Fact of the Case

the issue of improper sanction has been decided by this court in Siemens Financial Services Private Limited Vs. Deputy Commissioner of Income Tax & Ors. 1 wherein the court has held that for A.Y. 2016-2017 the sanction should have been given under Section 151(ii) and not under Section 151(i) of the Income Tax Act 1961 (the Act). Consequently, the sanction is invalid. The court has stated that in view of the invalid sanction, the notice issued itself will be invalid and has to be quashed.

Case Analysis and Judgment

Findings in Siemens Financial Services Pvt Ltd. (Supra) would squarely apply to these petitions as well on the issue of sanction. If the notice has to be quashed, if there is an assessment order passed subsequently, those assessment orders having been passed relying on an incorrect sanction will also have to be quashed.

Therefore, impugned Assessment Order dated 27th May 2023 issued under Section 144 read with Section 147 of the Act is hereby quashed and set aside. In view of the above, all consequential proceedings including Notice of Demand, Penalty proceedings also stands quashed and set aside. Petition is disposed.

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Telangana High Court on writ of mandamus directing the respondents to grant the reliefs benefit including grant of promotion to the rank of Subedar Major.

Telangana High Court on writ of mandamus directing the respondents to grant the reliefs benefit including grant of promotion to the rank of Subedar Major.

Title : Subedar Radha Krishna Tiwary v. Union of India

Case No. W.P.No.21746 of 2023

Date : 30.10.2023

CORAM : Hon’ble Justice P . Madhavi Devi

Introduction

In this writ petition, the petitioner is seeking a writ of certiorari to call for the entire record concerning the Summary disposal of the charge stated to be conducted in the case of the petitioner on 26.05.2022 and to issue a writ of mandamus directing the respondents to grant the reliefs benefit including grant of promotion to the rank of Subedar Major from 01.07.2022.

Fact of the Case

Brief facts leading to the filing of the present writ petition are that the petitioner was working as a Senior Junior Commissioned Officer i.e., Junior Commissioned Officer in the Unit of 16 Bihar (‘A’-Company), Mehdipatnam Garrison, Hyderabad, which is the Unit of Indian Army functioning under the Ministry of Defence, Union of India. It is submitted that the petitioner was enrolled in the Indian Army in the year 1995 and in November 2021, petitioner’s name was cleared for promotion to the rank of Subedar Major after undergoing the relevant and prescribed tests for the same in the DPC proceedings.

It is submitted that an unknown person has allegedly given a complaint against the Commanding Officer in the name of the petitioner and on the basis of the same, the Commanding Officer has enquired the petitioner as to why he had complained about him to the higher authorities.

Judgement and Case Analysis

Court finds that the first and foremost issue that has to be decided is whether this writ petition is maintainable against the orders of the respondents. Though there is an Armed Forces Tribunal formed to look into the service matters of the army personnel, the petitioner being a Junior Commissioned Officer and the writ petition is filed against the punishment awarded to him, this Court is of the opinion that this writ petition is maintainable before this Court.

As regards the alternative remedy being available to the petitioner, this Court finds that the petitioner has approached this Court because according to him, the Summary proceedings have not been conducted properly or as per the provisions of the Army Rules and therefore, there is a violation of the statutory provisions and also the principles of natural justice.

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The Supreme Court decision on the appellant finding guilty for the commission of offences punishable under Sections 148, 302 read with Section 149.

The Supreme Court decision on the  appellant finding guilty for the commission of offences  punishable under Sections 148, 302 read with Section 149.

 

Title : BALARAM v. STATE OF MADHYA PRADESH

Case no. : C .A No. 2300/2009

CORAM : Hon’ble Justice Chandrachud

Date :  8 Nov 2023

Introduction

This appeal challenges the judgment and order passed by the Division Bench of the High Court of Madhya Pradesh at Jabalpur, Bench Gwalior in Criminal Appeal No.276 of 1995 thereby dismissing the appeal filed by the present appellant as well as Rameshwar (since deceased) and confirming the judgment and order passed by the learned Special Judge and Second Additional Sessions Judge, Bhind passed in Sessions Trial No.70 of 1984.

Fact of the Case

The prosecution case that Rameshwar (since deceased), appellant-Balaram, Uma Charan and Munna had come there after ten minutes of stopping of the cart, accused-Rameshwar fired the first shot and it hit Ashok in his chest. Thereafter, another shot was fired by accused Uma Charan, which hit Ashok as a result of firing, Ashok had become unconscious and was brought to Mau on cart. Pannalal reported the in the arms and thereafter, the third shot was fired which hit Ramkali  (PW.5) in her right thigh. incident to the police based on which an FIR came to be lodged initially for an offence punishable under Section 307 of the Indian Penal Code (for short ‘IPC’). Following the death of Ashok, the case was converted to one under Section 302 of the IPC.

Judgment and Analysis

Shri Chandrachud submits that, on the basis of evidence, the learned Trial Judge has acquitted four accused persons. He further submits that, though the evidence of PW.5-Ramkali and PW.6-Mulchand has specifically attributed a gunshot to Uma Charan, their evidence has been disbelieved insofar as Uma Charan is concerned. However, on the basis of the very same evidence, the appellant-Balaram has been convicted. It is submitted that, from the testimony of the other witnesses it would be clear that the appellant-Balaram was not even present at the spot and he has been falsely implicated.

The order of conviction and sentence as recorded by the learned Special Judge and Second Additional Sessions Judge, Bhind and the order of the High Court are quashed and set aside. The appellant is acquitted of the charges charged with. He is directed to be set at liberty forthwith, if his detention is not required in any other case.

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