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At the stage of considering bail, Court to exercise utmost diligence in evaluating the prima facie allegations against the accused- Delhi High Court

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Case title: Sunny Alias Ravi Kumar v. State of NCT of Delhi.

Case no: Bail Appln. 3580/2023

Dated on: 29th April, 2024

Quorum: Hon’ble Mr. Justice Amit Mahajan.

Facts of the case:

The present application is being filed under Section 439 of the Code of Criminal Procedure, 1973 (CrPC) seeking a grant for regular bail in FIR No.255/2023 on 10.03.2023 for offences under Sections 376/354D/506 the Indian Penal Code, 1860 (IPC). It is alleged that the applicant used to stalk the prosecutrix and claimed that he loved her. It was stated that after the prosecutrix rejected the applicant, the applicant had threatened her. It was declared that on 01.12.2021 the applicant had called the prosecutrix at GTB Nagar metro station, the applicant then had threatened the prosecutrix with suicide due to which the prosecutrix agreed to meet him and have regular conversations with him. In December 2021 the applicant took the prosecutrix to his friends house in Aadarsh Nagar, and forced her to have sexual relations with him for the first time. It was stated the applicant took the prosecutrix to a hotel named Welcome Hotel 5-6 times and forced her to have sexual relations with him. It is alleged that the applicant took the prosecutrix to Haridwar on April,2022 and allegedly married the prosecutrix there. Later on, the prosecutrix found out that the applicant was married and also had two children. It was also stated that the applicant would demand gifts from the prosecutrix leading her to give him nearly Rs. 1.5 lakhs in cash and many other items. On 07.03.2023, the applicant had called the prosecutrix when he was intoxicated and told her to meet him at Aadarsh Nagar Metro Station from there the applicant took her to the Welcome Hotel and forced her to have unnatural sex with him. A medical examination was conducted of the prosecutrix at BJRM hospital Delhi, and her statement was recorded under Section 164 of CrPC. Chargesheet was filed under Section 376/354D/506 of IPC.

Contentions of the prosecution:

It was alleged that the applicant used to stalk the prosecutrix and also claimed that he was in love with her. It is alleged that after the prosecutrix rejected the advances of the applicant, the applicant threatened her. It was stated that on 01.12.2021, the applicant called the prosecutrix at GTB Nagar Metro Station. When the prosecutrix reached to meet him, the applicant threatened her with suicide due to which the prosecutrix agreed to meet him and have regular conversations with him. It was alleged that in December, 2021, the applicant took the prosecutrix to one of his friend’s house in Aadarsh Nagar, and forcefully established sexual relations with the her for the first time. It is alleged that thereafter, the applicant took the prosecutrix to a Hotel, namely, Welcome Hotel, about 5-6 times, and forced her to have sexual relations with him there. It is alleged that the applicant also took the applicant to Haridwar in April, 2022 for three days and allegedly married the prosecutrix there. Later, found out that the applicant was married and had two children. It is alleged that the applicant used to demand gifts from the prosecutrix and she had allegedly given ₹1.5 lakhs in cash, two mobile phones, clothes and two silver rings to the applicant, and also resorted to violent means when she did not pay heed to his demands. on 07.03.2023, the applicant called the prosecutrix when he was intoxicated and forced her to meet him at the Adarsh Nagar Metro Station, the applicant thereafter took the prosecutrix to the Welcome Hotel and forced her to have unnatural sex and beat her when she refused. A medical examination of the prosecutrix was conducted at BJRM Hospital, Delhi and her statement was also recorded under Section 164 of CrPC. The chargesheet was filed under Section 376/354D/506 of IPC. The Public Prosecutor for the State opposes the present bail, saying that there is a high possibility that the applicant could extend the threats to the prosecutrix’s family, and therefore, the bail application to be dismissed.

Contentions of the applicant:

The case that was filed against the applicant is basically to humiliate, torture him and to harass him and he has been in judicial custody since 10.03.2023. It was stated that there are material differences in the FIR and the statement of the prosecutrix recorded under Section 164 of CrPC. It is also contended that as clear from the contents of FIR, the relationship between the applicant and the prosecutrix was consensual in nature and had continued for two years. It was further submitted that the custody of the applicant is not necessary for the investigation, as there are no chances of the applicant to abscond or flee from justice, and that the promise of marriage is completely absurd and untrue. Lastly, he says that there has been an unnecessary delay in the filing of an FIR which increases the suspicion about the allegations made by the prosecutrix.  

Issue:

Whether the Bail application filed by the Applicant is to be allowed?  

Legal provision: 

Section 376 of IPC- Rape the punishment is not for less than 10years, which may extend to life imprisonment and, a fine.

Section 354D of IPC- Stalking any man who repeatedly follows, contacts, or monitors a woman’s communication despite her clear disinterest will amount to imprisonment for three years.

Section 506 of IPC- Criminal intimidation.

Section 164 of CrPC- empowers a magistrate to record a person’s testimony or confession regardless of whether or not he has the jurisdiction.  

Courts analysis and judgement:

The Court, while considering the application for bail, has to consider the nature of the offence, severity of the punishment and prima facie involvement of the accused. The Court is now not required to enter into the detailed analysis of the evidence. The bail is not to determine the guilt but it’s only a safeguard to ensure the accused’s right to liberty, pending trial. The court needs to maintain balance between securing the complainant’s interest and safeguarding the accused’s right. In the present case, the allegations levelled is that the Applicant had established forceful physical relations with the prosecutrix on multiple occasions on the false pretext of marriage. It is not denied that the prosecutrix had known the applicant for a long time. The alleged incident, for the first time, is said to have taken place in the month of December, 2021, however no complaint was made at the time. Thereafter, the prosecutrix continued to have sex on several occasions and even then, no complaint was made by her. The prosecutrix got FIR registered on 10.03.2023, that is, almost after fifteen months from the first alleged incident The Hon’ble Supreme Court Apex Court, in Meharaj Singh (L/Nk.) v. State of U.P. (1994) 5 SCC 188, held that Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story…” The prosecutrix has not mentioned date or time of the alleged incidents. The prosecutrix was a major and hence the consent of the prosecutrix whether vitiated by a misconception of fact arising out of a promise to marry can be established only at the time of trial. The averment of the applicant that there are discrepancies between the FIR and Section 164 CrPC statement is also a matter of trial. At this stage, no evidence has been adduced to show that the applicant had made forceful relation with the prosecutrix or has issued any threats of making viral her photographs or has demanded money, mobile phones from the prosecutrix. It is apparent that the prosecutrix was meeting the applicant for quite some time before filing the complaint and wanted to continue their relationship despite knowing that the applicant is a married man. The decision to continue with the relationship points towards her consent. The actions at this stage, does not suggest passive acquiescence under psychological duress but implies towards her consent which is devoid of any kind of misconception. The Hon’ble Supreme Court in Pramod Suryabhan Pawar v. State of Maharashtra: (2019)SCC 608 has laid out as to when a “promise to marry” is a “false promise” or a “breach of promise”. The Supreme Court held that two propositions must be established to establish whether the “consent” was vitiated by a “misconception of fact” arising out of a promise to marry ie the promise of marriage must have been a false, given in bad faith and with no intention of being adhered. The false promise must be of immediate relevance or bear direct nexus to the woman& 39 decision to engage in the sexual act. At the stage of considering bail, it is neither appropriate nor feasible for the court to draw conclusion, as to whether a promise of marriage made to the prosecutrix was false and in bad faith with no intention to adhere. This issue can be determined after an assessment and evaluation of evidence. It is imperative on the part of Court to exercise utmost diligence in evaluating the prima facie allegations on cases to case basis especially when there are contentious issues of consent and intent. Further, it is not in dispute that the antecedents of the applicant are clean. The applicant, is aged about 34 years and is in custody since 10.03.2023 and has a wife and two minor children to take care of. Keeping the applicant in jail will not serve any useful purpose. 
In view of the above, the applicant is directed to be released on bail on furnishing a personal bond for a sum of ₹25,000/- with two sureties of the like amount, subject to the following conditions: a. The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case or tamper with the evidence of the case; b. He shall not contact the complainant other witnesses; c. The applicant shall not travel out of the country without prior permission; d. The applicant shall not tamper with evidence nor indulge in any unlawful act or omission which would prejudice the trial. The applicant to appear before the learned Trial Court as and when directed. The applicant shall not visit the locality where the prosecutrixy resides. The applicant to provide the address where he would be residing and shall not change the address without informing the concerned IO/ SHO; h. The applicant to give his mobile number to the concerned IO/SHO and shall keep his mobile phone active and switched on at all times. In the event of any FIR/ DD entry/ complaint lodged against the applicant, State can seek redressal by filing an application for cancellation of bail. The observations made in the present order are for the purpose of deciding the only the present bail application and should have no bearing on the outcome of the Trial and shall not be taken as an expression of opinion on the merits of the case. The bail application is accordingly, allowed.  

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delhi high court

Unaided recognized private school is not required to take prior approval before fees hike- Delhi High Court.

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Case title: Action committee unaided recognized private schools v. Directorate of Education.

Case no: W.P. (C) 5743/2024 and CM APPL. 23712/2024, CM APPL.23713/2024

Dated on: April 29th, 2024

Quorum: Hon’ble Mr. Justice C. Hari Shankar.

Facts of the case: 


Directorate of Education (DoE) issued Order dated 27.03.2024 that as per Section 17 of DSEAR, 1973 no private unaided school in Delhi which has been allotted land by the Govt. Agencies shall enhance fee without prior sanction of the Director of Education. All the Head of Schools/Managers of Private Recognized Unaided Schools, seeking prior sanction for increase in fee, to submit their proposals, for the academic session 2024-25, online from 01.04.2024 through website of Directorate latest by 15.04.2024. The proposals submitted by the schools shall be scrutinized by the Director and in case, no proposal is submitted, the school shall not increase tuition fee/fee. In case of complaint regarding increase of any fee without prior approval will be viewed seriously and will make the school liable for action against itself as per the statutory provisions. The said Notification was challenged by the Action Committee Unaided Recognized Private Schools and which has come up for hearing.

Contentions of the appellant: 


Committee Unaided Recognized Private Schools v. DoE1 and Mt. Carmel School v. DoE2. Both were decided by a common judgment dated 15 March 2019. The The impugned order is in the teeth of the judgment of this Court in Action Court to rely on the judgment of the Supreme Court in Modern School wherein was held that schools which are subject to the “land clause” have to take prior approval of the DoE before enhancing their fees.   
Contentions of the respondent: 


Upon reference in para 140 of Action Committee Unaided Recognized Private Schools case, this Court has accorded license to the principle that schools which are situated on land, to which the land clause applies, could not increase their fees without prior approval. From Modern School the propositions emerged was; (i) The issue for consideration, before the Supreme Court, was whether schools were charging excessive and disproportionate fees and whether, the DoE acted within its jurisdiction in issuing directives (ii) Unaided educational institutions enjoyed greater autonomy, in the matter of determination fee structure. Such institutions to be allowed to plan their investment and expenditure, to generate reasonable profit. (iii) Charging of capitation fees, and profiteering, could not be allowed. (iv) Balance, to be struck between autonomy of the institutions and measures to be taken to prevent commercialization of education. (v) These regulatory measures could not, trespass on the autonomy of the unaided educational institutions. (vi) The right to establish and administer minority educational institutions, conferred, by Article 30(1) of the Constitution, was subject to reasonable regulations. (vii) Subject to the prohibitory parameters, regarding charging of capitation fee and profiteering, fees chargeable by unaided educational institutions could not be regulated. (viii) The “issue”, condensed by the Supreme Court, was “as to what constitutes reasonable surplus”. (ix) The directions, issued to the DoE is to “ascertain whether terms of allotment of land by the Government to the schools have been complied with, by the schools”. In the event of non-compliance being detected, the DoE was directed to take “appropriate steps in that regard”.  

Issue: 


Whether unaided recognized private school is required to take prior approval of the DoE before increasing its fees, irrespective of whether the land clause? 

Legal provision: 


Section 8(2) of the Delhi School Education Act, 1973- which mandates prior approval for dismissal orders.  

Courts analysis and Judgement: 

 Action Committee Unaided Recognized Private Schools v. DoE1 and Mt. Carmel School v. DoE2 the Court observed that “the schools are entitled to complete autonomy in the matter of fixation of their fees and management of their accounts, subject only to the condition that they do not indulge in profiteering, and do not charge capitation fee, thereby “commercializing” education. There is no requirement for the school to take “prior approval”, of the DoE, before enhancing its fees”. The resultant legal position, following Action Committee Unaided Recognized Private Schools, is that an unaided recognized private school is not required to take prior approval of the DoE before increasing its fees, irrespective of whether the land clause. The principle that private unaided schools do not have to seek prior approval before enhancing their fees, so long as they do not indulge in profiteering or commercialization of education by charging capitation fees and making of profits, is undisturbed till date though it is subject to decision of the Division Bench. The DoE, even if dissatisfied with the judgment of this Court in Action Committee Unaided Recognized Private Schools has to respect the verdict so long as it stands. The attitude of the DoE in continuously issuing Circulars threatening recognized unaided schools is objectionable and cannot be allowed. The grievances are to be ventilated before Division Bench where the Appeal is pending, and not issue continuous circular thereby driving the schools to drive to litigations and repeatedly re-arguing the same points which were considered in Action Committee Unaided Recognized Private Schools. As long as there is no prohibition by the Division Bench, with the principle in Action Committee Unaided Recognized Private Schools the DoE is required to respect that position. In view of the aforesaid reasons, why rule nisi should not be issued? And until next hearing DoE Circular dated 27.03.2024 shall stand stayed.    

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

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

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

Dated on: 01st May, 2024.

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

Facts of the case: 

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

Contentions of the appellant: 

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

Contentions of the respondent: 

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

Issues:  

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

Legal provisions:

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

Courts analysis and judgement: 

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

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

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

Case no: Civil appeal No. 4786 of 2024

Dated on: 30th April, 2024

Quorum: Justice Abhay S. Oka and Justice Ujjal Bhuyan

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

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

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

Legal provisions:

Article 226- Writ Jurisdiction of High Court.

Issue:

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

Court’s analysis and judgement: 
The court summarised conclusions regarding the concept of Minutes of order as follows: 
a) The practice of filing ‘Minutes of order’ prevails in Bombay High court the object of which is to assist the court. 
b) An order passed in terms of ‘Minutes of order’ is not a consent order. It is an order in invitum. 
c) The Courts to apply its mind as to whether parties likely to be affected by an order in terms ‘Minutes of order’ have been impleaded to the proceedings and whether such order is lawful? If the court finds that all parties are not impleaded the court to defer passing of the order till all the necessary parties are impleaded. 
d) If the court is of the view that an order made in terms of ‘Minutes of order’ will not be lawful court should decline to pass order in terms of ‘Minutes of order’.  
Findings on the facts of the case- 
It was the duty of the Court to call 1st and 2nd respondent to implead persons who were likely to be affected by the construction of the compound wall. The Division Bench of the High court failed to make an enquiry as to whether the third parties will be affected by the construction of the compound wall. Hence, order dated 16.03.2022 in terms of ‘Minutes of order’ is entirely illegal and must be set aside. The writ Petition to be remanded to the High court. After remand, High court must decide who are the necessary parties to the petition in case of failure of 1st and 2nd respondents to implead the necessary parties the High court is within its power to dismiss the Writ Petition and pass an order of restoration of status quo ante by directing demolition of the compound wall.

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

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

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

Dated on: 30th April, 2024

Quorum: Justice Abhay S. Oka and Justice Ujjal Bhuyan

Facts of the case:

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

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

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

Legal provisions:

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


Issues: 
Whether the activity of labelling amounts to manufacture?

Courts analysis and judgement:

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

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