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It Is Necessary To Fulfil The Twin Conditions Which Are Required For Grant Of Bail Under The PMLA, 2002: High Court Of Chhattisgarh

Title: Mr. Rajnikant Tiwari V Directorate Of Enforcement, Goi

Citation: 2023:Cghc:26629

Coram: Hon’ble Shri Justice Narendra Kumar Vyas

Decided On: 02.11.2023

Introduction:

This is first bail application filed by the applicant under Section 438 of the Code of Criminal Procedure, 1973, for grant of anticipatory bail, who has apprehension of being arrested in connection with Crime dated 29.09.2022 registered at Police Station- Directorate of Enforcement, Zonal Office, Raipur (C.G.) for the offence punishable under Sections 186, 204, 353, 120B, 384 of IPC, Sections 3 & 4 of the Prevention of Money Laundering Act, 2002.

Facts:

The case of the prosecution is that during a search and seizure investigation under Section 132 of the Income Tax Act conducted on 30.06.2022 and one Mr. Suryakant Tiwari at a hotel room of Hotel Shereton Grand, Bengaluru, certain incriminating materials are said to have been found, based upon which a complaint was lodged by the Income Tax Department at the Kadugodi, Police Station Bengaluru alleging offences under Sections 186, 204 and 353 read with Section 120B of the IPC which led to the registration of the FIR. Further investigation was conducted. In the course of the investigation, main accused- Suryakant Tiwari was summoned and was arrested on 13.10.2022.

It is further case of the prosecution that the prosecution has recovered diaries from the possession of Smt. Soumya Chourasiya and the main accused- Suryakant Tiwari, from which it would reveal transaction of cash money between Smt. Soumya Chourasiya and the main accused- Suryakant Tiwari. It is also case of the prosecution that object of Suryakant Tiwari to tamper and destroy the important documents as well as electronic gadgets and Suryakant Tiwari along with his brother, Rajnikant Tiwari and his associates Hemant Jaiswal, Jogendra Singh, Moinuddin Quaraishi, Nikhil Chandrakar, Roshan Singh and others were involved in criminal conspiracy to run a parallel system of collecting illegal levy on coal and were doing illegal and unaccounted cash movement as per instructions of Suryakant Tiwari.

All the above mentioned associates of Suryakant Tiwari had admitted in their statements recorded before the Income Tax officials that they were doing the illegal levy collection on the instructions of Suryakant Tiwari. The proceeds received from the above referred to action were being used for taking undue advantage and to influence public servants by corrupt and illegal means and by exercise of personal influence.

The role of the present applicant is that he was an active member of the extortion syndicate. He was the focal point where all the extorted cash was deposited and was stored and subsequently dispatched for utilization as per the instructions of Suryakant Tiwari.

Learned Senior counsel for the applicant would submit that it is a case where the applicant would be entitled for the benefit under the exceptions carved out under Section 45 of the PMLA, 2002. He would further submit that the applicant has cooperated with the Investigating Agency on all occasions and there is no further possibility of the applicant misusing the bail or would influence in any manner the investigation or tampering of the evidence nor is there any possibility of the present applicant absconding either.

learned counsel for the respondent has filed reply to the application mainly contending that the present applicant has played specific role in commission of offence. It has been further contended that ED investigation revealed that unless cash @ Rs. 25/tonne of coal transported was paid to associates of Suryakant Tiwari, the concerned mining officer in the office of collectorate would not issue the requisite transit pass. All of this was facilitated/coordinated by Suryakant Tiwari with clout of Smt. Soumya Chaurasia and other Government officials. It has been further contended that once these associates of Shri Suryakant Tiwari received the additional charge of Rs. 25 per tonne of coal to be transported, message was then communicated to the Mining Officer (s) and thereafter the delivery orders were cleared for transport.

Court’s Analysis and Judgement:

Involvement of the applicant is reflected. The material collected by the Enforcement Directorate has not been rebutted which also prima facie reflects about involvement of the applicant. The record of the case would further demonstrate that the applicant is unable to fulfil the twin conditions which are required for grant of bail under the PMLA, 2002, is equally applicable for grant of anticipatory bail, which has not been satisfied by the present applicant.

Considering the facts and law, gravity of offence, possibility of tempering of the witnesses and prima facie considering the fact that the applicant is unable to satisfy twin conditions of Section 45 of PMLA, 2002 for grant of anticipatory bail. Due to which the court was not in the opinion to grant the applicant the anticipatory bail. Hence the application was rejected.

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Written by- Sushant Kumar Sharma

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Court Cannot Turn A Blind Eye Towards Any Potential Violations Of Fire Norms: High Court Of Delhi

Title: Azad Market Residents Welfare Association V Ministry Of Home Affairs And Ors.

Citation: W.P.(C) 8437/2022

Coram: Hon’ble The Chief Justice And Hon’ble Mr. Justice Tushar Rao Gedela

Decided On: November 06, 2023

Introduction:

The present petition has been filed as a public interest litigation (“PIL”) seeking directions from this Court to be issued to the Respondents in relation to inter alia (i) conducting a survey in order to identify unauthorized and illegal construction in the Azad Market, Delhi – 110006 (the “Subject Area”); and (ii) to take action against such properties situated in the Subject Area.

Facts:

Petitioner has brought to the notice of this Court the presence of illegal and unauthorized constructions situated in the Subject Area. It is stated the Subject Properties have been constructed in contravention to the Unified Building Bye Laws, 2016 (“UBBL 2016”); the Delhi Municipal Corporation Act, 1957 (the “Act”); and other building laws in vogue including inter alia the Master Plan for Delhi, 2021 (“MPD 2021”). Furthermore, it has been contented that the Subject Properties have been constructed and are being occupied without obtaining an Occupancy Certificates (“OCs”) and / or necessary permissions under the Delhi Fire Safety Act, 2007 (the “Delhi Fire Act”) read with the Delhi Fire Service Rules, 2010 (the “Delhi Fire Rules”)

Notice was issued in this matter on 26.05.2022, the Municipal Corporation of Delhi (“MCD”) filed a status report on 02.07.2022 (the “MCD Status Report”); the Delhi Fire Service filed an affidavit on 02.11.2022; and the Union of India filed an affidavit in the present PIL on 01.07.2023. Per the MCD Status Report, the MCD took action against illegal and unauthorized construction in the vicinity of the Subject Area.

Court’s Analysis and Decision:

Court pointed out that the grievance raised by the Petitioner has been sufficiently addressed by the MCD through the considerable efforts it has made in relation to clearing unauthorized and illegal construction in the Subject Area. Regarding the violation of fire norms court didn’t turn a blind eye, accordingly the MCD and the Delhi Fire Services are directed to ensure scrupulous and rigorous enforcement of the Fire Norms pertaining to premises specified under Rule 27 of the Delhi Fire Rules. In this regard, the MCD shall endeavour to conduct regular monitoring of the Subject Area to ensure that persons found violating the Fire Norms are promptly identified and referred to the Fire Prevention Wing under Rule 34 of the Delhi Fire Rules.

Furthermore, in the future if stray individual cases of unauthorized and illegal construction are found dotting the Subject Area, the Petitioner may approach the Special Task Force constituted by the Ministry of Housing and Urban Affairs, Government of India  (the “STF”) pursuant to the orders of the Hon’ble Supreme Court of India in W.P.(C) 4677/1985.

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Written by- Sushant Kumar Sharma

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Legal Battle Unfolds Over GNCTD’s OSWS Portal: Operationalization and Compliance Await Next Hearing

Title: Anjana Gosain vs. Government of NCT & ANR.

Citation: W.P.(C) 2506/2019 & CM APPL. 19643/2021

Coram: JUSTICE PRATHIBA M. SINGH

INTRODUCTION:

The case appears to be an excerpt from a legal case or a court proceeding related to the outstanding bills of a lawyer engaged by the Government of the National Capital Territory of Delhi (GNCTD). The court seems to have issued orders to streamline the process of clearing lawyers’ bills and implement a Single Window System for bill clearance. The case is scheduled to be listed again on April 7, 2022, to report further progress on the implementation of the Single Window System.

FACTS:

The facts of the case are such that, the Coordination between various government departments has caused delays in clearing lawyers’ bills. The court emphasizes the importance of setting timelines for bill payments and the need to improve the process for clearing lawyers’ bills. The responsibility for coordinating the Single Window System for bill clearance has been assigned to the Additional Chief Secretary and the National Informatics Centre (NIC). A timeline for the development of the Single Window System is presented, including the approval of functional requirements, software development, GUI designing, coding, and validation.

The court expresses dissatisfaction with the timelines provided by GNCTD, citing the prolonged delay in processing lawyers’ bills, some of which date back to 2018.  The case is set to be listed on specific dates to monitor progress in the implementation of the Single Window System and the resolution of outstanding bill payments. These proceedings highlight the court’s efforts to expedite the payment of lawyers’ bills and streamline the process through the introduction of a centralized system. It also mentions that on April 7, 2022, certain actions were taken, including clearing outstanding bills of the Petitioner, creating a Virtual Machine with a provided URL for a security audit, and scheduling training for government counsels to use the SWS system from April 25, 2022, to April 29, 2022.

CAE ANALYSIS AND JUDGEMENT:

The court concludes that, In an order dated July 25, 2023, the Law Department of GNCTD was directed to engage developers to fully operationalize the OSWS portal with approval from the Finance Department of GNCTD. The court ordered a demonstration of the OSWS portal’s functionality for uploading and clearing fee bills of advocates. However, on the next hearing date (September 11, 2023), it was reported that the portal was not fully ready, and a status report was filed.

The IT team of the Law Department, GNCTD, provided a demonstration of the OSWS portal. They explained that the software has built-in timelines, and the processing time for bills would not exceed 20 to 25 days. Mr Bharat Parashar, Principal Secretary, Law, GNCTD, assured the court that the portal is ready to go live and that the file for inauguration has been moved to the concerned authority.

The court ordered the GNCTD to take immediate steps to operationalize the OSWS portal within the next month and requested a report on its functioning to be submitted at least two weeks before the next hearing date. It was noted that six departments had not yet appointed their Nodal Officers for the portal’s management, and they were directed to do so within the next two weeks. The case was listed for compliance on March 7, 2024. In summary, the case revolves around the development and readiness of the OSWS portal for processing bills of advocates representing GNCTD. The court is actively monitoring the progress and has set deadlines for operationalization and compliance. The next hearing is scheduled for March 7, 2024.

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Written By: Gauri Joshi

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Troubled Redevelopment Project in Mumbai: Delays, Defaults, and Termination Lead to Legal Battle: High Court of Bombay

Title: Swashray Co-op. Housing Society Ltd& Ors. Vs. Shanti Enterprises

Citation: CAP (L) No. 10432 OF 2023

Coram: JUSTICE MANISH PITALE

Decided on: 03-11-2023

Introduction:

The case involves two cross-petitions filed under Section 9 of the Arbitration and Conciliation Act, of 1996. These petitions are related to interim measures sought by the parties while disputes concerning a redevelopment project are pending resolution through arbitration. The disputes in question are common in the context of cooperative housing societies and developers in Mumbai. The parties involved are referred to as follows:

  1. Petitioner – Society: Swashray Co-operative Housing Society Ltd., which is the Petitioner in Commercial Arbitration Petition (Lodging) No. 10432 of 2023 and the Respondent in Commercial Arbitration Petitioner (Lodging) No. 15203 of 2023.
  2. Respondent – Developer: Shanti Enterprises, which is the Respondent in Commercial Arbitration Petition (Lodging) No. 10432 of 2023 and the Petitioner in Commercial Arbitration Petitioner (Lodging) No. 15203 of 2023. The case pertains to disputes and issues related to a redevelopment project involving these cooperative housing societies and the developer in the city of Mumbai.

Facts:

In this case, the Petitioner–Society engaged the Respondent–Developer for a redevelopment project concerning a property located in Borivali (West), Mumbai. The Petitioner – Society, consisting of 16 members, and the Respondent–Developer entered into a Memorandum of Understanding (MoU) on July 9, 2015. The MoU included obligations for the Respondent–Developer to procure conveyance in favour of the Petitioner–Society and to incorporate the Society’s name in the property register. The conveyance was procured on August 6, 2015. However, issues arose when the Municipal Corporation of Greater Mumbai issued a notice under Section 354 of the Mumbai Municipal Corporation Act, 1881, which led to the evacuation and eventual demolition of the existing building on the site in 2017.

The Petitioner–Society alleged that there was no progress in the redevelopment project, and the Respondent–Developer failed to execute and register the development agreement. A resolution to terminate the MoU was passed on February 13, 2018, but this termination was not acted upon as the Respondent–Developer assured compliance. The development agreement was eventually executed on May 4, 2018.

Despite obtaining necessary permits like Intimation of Disapproval (IoD) and a commencement certificate, the Respondent–Developer’s progress stalled. The Petitioner–Society claimed that the Respondent started defaulting and failed to comply with the terms of the development agreement. The agreement required the Respondent–Developer to provide a bank guarantee, complete the project within a specified timeframe, and obtain an occupation certificate.

As the Respondent – Developer failed to meet these obligations and requested relaxation, a Supplementary Development Agreement was executed on November 28, 2019. However, the Respondent – Developer also failed to fulfill its commitments under this agreement. Society issued several notices and reminders, called a Special General Body Meeting to terminate the agreements, and ultimately terminated the Development Agreement, Power of Attorney, Supplementary Development Agreement, and Permanent Alternative Accommodation Agreements (PAAAs) due to a loss of trust in the Respondent – Developer’s ability to complete the project. The Society sought relief through a petition filed under Section 9 of the Arbitration and Conciliation Act, 1996, requesting the court to grant mandatory reliefs due to the repeated defaults and breaches committed by the Respondent – Developer. The Society emphasized that its members should not suffer due to the Respondent’s actions and cited previous court decisions where similar relief was granted in Section 9 petitions.

This case highlights a complex dispute between a housing society and a developer involving a redevelopment project in Mumbai, with allegations of delays, defaults, and the termination of agreements.

Court analysis & judgement:

In this judgment, the court refers to a previous case, Sushil Kumar Agarwal Vs. Meenakshi Sadhu & Ors., where it was observed that in certain agreements, both the property owner and the developer would be entitled to sue for specific performance under Section 14(3) of the Specific Relief Act. However, in the present case, the court states that the Respondent–Developer cannot benefit from this position of law due to the material available on record, which shows significant breaches committed by the Respondent–Developer. The court finds that the Petitioner–Society has established a strong prima facie case, and it cannot be bound to a developer who has repeatedly defaulted, leading to a complete loss of trust and faith. As a result, the court dismisses the Commercial Arbitration Petition (Lodging) No. 15203 of 2023 filed by the Respondent–Developer. Simultaneously, it allows Commercial Arbitration Petition (Lodging) No. 10432 of 2023 filed by the Petitioner.

Restraining the Respondent, its partners, officers, servants, agents, and others from creating third-party rights in the property. Restraining the Respondent from interfering with the redevelopment process, construction, and possession of the property by the Petitioner–Society. Restraint from dispossessing the Petitioner – Society and its members from the project and property. Directing the Respondent to hand over possession of all original documents related to the property and the project. This judgment analysis highlights that the court has recognized the breaches committed by the developer and has granted specific reliefs to the petitioner society, ensuring that their interests are protected.

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Written By: Gauri Joshi

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First-Time Offender’s Sentence Reduced Due to Commitment to Reform and Lower Socio-Economic Status: High Court of Delhi

Title:  Mohd Nasim vs. The State

Citation: CRL.REV.P.296/2017

Coram: HON’BLE DR. JUSTICE SUDHIR KUMAR JAIN

Decided on: 3-11-2023

Introduction:

The present criminal revision petition has been filed under sections 397/401 of the Code of Criminal Procedure, 1973, along with section 482 of the same Code. This legal action aims to challenge and set aside three specific legal orders and judgments: The order dated 27.03.2017, referred to as “the impugned order,” issued by the District and Sessions Judge of East, Karkardooma Courts (referred to as “the appellate court”). The judgment dated 17.03.2016, referred to as “the impugned judgment.” The order on sentence dated 15.07.2016, issued by the Metropolitan Magistrate-03, East, Karkardooma Courts (referred to as “the trial court”).These orders and judgments pertain to a criminal case that arose from the FIR numbered 151/2009, registered under sections 279/337 of the Indian Penal Code, 1860 (IPC) at PS Mandawli Fazad Pur. The purpose of this criminal revision petition is to seek a review and potentially set aside these legal decisions.

Facts:

The facts of the case are such that, The case pertains to an incident in 2009, where a road accident occurred involving a rickshaw used for carrying goods and a blue line bus with the registration number DL 1PB 9786 (referred to as “the offending vehicle”). The Investigating Officer, SI Yad Ram, arrived at the accident scene after receiving information about the incident. A statement from the complainant, Mohd. Sabir was recorded, in which he described that the rickshaw he was travelling in was hit from behind by the offending bus, driven in a rash and negligent manner.

As a result of the collision, the deceased, Mahesh, fell on the road, and the rear tire of the bus ran over him, causing injuries that led to his subsequent death during treatment. An FIR was registered based on the statement of the complainant, initially under sections 279/337 IPC, and later section 304A IPC was added due to the death of the deceased. The petitioner, identified as Mohd. Nasim was charged as the driver of the offending bus. The trial court conducted proceedings, and the prosecution presented its evidence, including 11 witnesses, including the complainant and the Investigating Officer. The petitioner pleaded innocence and claimed false implication during his statement.

The trial court, in its judgment, convicted the petitioner for offences under sections 279/304A IPC and imposed sentences, including imprisonment and compensation to be paid to the legal heirs of the deceased. The petitioner was also sentenced for an offence under section 279 IPC. The sentences were ordered to run concurrently.

 

 

Court Analysis & Judgement:

The Court concluded that, The present First Information Report (FIR) dates back to 2009, and the petitioner has been involved in legal and judicial proceedings related to this FIR since then. The petitioner is described as a first-time offender with a clear criminal record. They belong to a lower socio-economic stratum and are the primary provider for their elderly parents. The legal heirs of the deceased in this case have already received compensation. The petitioner has expressed a commitment to reform themselves. The petitioner’s actions, characterized as rash and negligent driving, led to the untimely death of a young man. This incident caused irreparable loss to the victim’s family.

 After considering all the facts, the court has decided that justice would be served by reducing the sentence imposed on the petitioner for the offence under section 304A of the Indian Penal Code (IPC) to simple imprisonment for six months. The remaining part of the sentence, as specified in the order on sentencing dated 15.07.2016, is to be maintained.  The court has directed the petitioner to surrender before the trial court on 20.11.2023 at 2:30 PM to serve the remaining portion of the sentence. The judgment is to be provided to the petitioner and sent to the relevant trial court for their information.

The present petition, along with any pending applications, has been decided and disposed of accordingly.

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