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

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.

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Judgement Analysis Written by – K.Immey Grace

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The tribunal did not direct the use of a waitlist to fill vacancies in Permanent commission: Delhi High Court.

Case title: Maj Vishal Vs Union Of India And Ors.

Case no.: W.P.(C) 15908/2023

Decided on: 08.02.2024

Quorum: Hon’ble Justice V. Kameswar Rao, Hon’ble Justice Saurabh Banerjee

 

FACTS OF THE CASE:

The current writ is based on an order of the Armed Forces Tribunal. The petitioner is a Short Service Commissioned Medical Officer who has joined the Army Medical Corps. It was the petitioner’s case that, in recent years, a number of vacancies have been created for the grant of Permanent Commission to SSC Officers, and according to a letter from the Ministry of Defence dated September 3, 1998, 115 vacancies in the category of PC were to be filled by SSC Officers in the Armed Force Medical Corps. The petitioner was eligible for the PC, so he participated in the selection process, and his case was heard at the DPC in June 2012. The results were released in November of 2012. The petitioner was ranked 53rd on the merit list, but only 15 candidates were appointed as PCOs following the DPC in June 2012. In March 2014, similarly placed SSC Officers, who were also dissatisfied with the respondents’ action of filling only 15 vacancies instead of 50, approached the Tribunal, citing Major Mallikarjun’s case. It is sufficient to state that the Tribunal decided the OA on October 15, 2015, holding that the reduction of vacancies from 50 to 15 is illegal and that the 50 vacancies must be filled. The respondents were asked to fill 50 vacancies, but only 33 were filled, leaving 17 vacant. The petitioner filed a petition in tribunal, which was dismissed.

PETITIONERS CONTENTION:

The petitioner’s counsel contends that the Tribunal’s order is erroneous because the respondents have no right to refuse the grant of PC to a candidate who is on the panel or on the waitlist if vacancies exist. If a vacancy is not filled due to reasons such as unwillingness, invalidation, death, or resignation, candidates on the waiting list will be considered for the position. The respondents had a responsibility to operate a waiting list because 17 vacancies remained unfilled. They argued that it is a travesty of justice to overlook qualified candidates for PC and let them go to waste.

RESPONDENTS CONTENTION:

They contended that the Tribunal granted relief in the case of Major Mallikarjun solely on the basis of “legitimate expectations” of the top 50 candidates whose selection had already been approved by the previous DGAFMS, because the applicants were ranked among the top 50. They He also stated that the judgement was for the applicants and not an order in rem. It was extended to the top 50 candidates based on the Tribunal’s observations. In contrast, the petitioner was not on the Merit List’s top 50 and chose not to pursue the matter until 2017.

COURT ANALYSIS AND JUDGMENT:

The court held that, in light of the Tribunal’s decision in Major Mallikarjun S Biradar, the Tribunal correctly rejected the petitioner’s OA. Furthermore, this Court believes that because the upper age limit for PC is 30 years and the petitioner has used up his last chance in December 2012, no PC direction can be issued. Furthermore, the maximum service period for granting PC to an SSC Officer should be 9 years and 6 months, while the petitioner already served for more than 13 years.

The petitioner approached the Tribunal to state that the waitlist needs to be operated because the vacancies resulting from the Tribunal’s directions in Major Mallikarjun S. Biradar have not been provided. The court held that the petitioner could not have filed the OA on the basis of the direction provided by the Tribunal in Major Mallikarjun S. Biradar because no such direction had been given by the Tribunal.

The court stated that the issue of operating a waitlist is not relevant in light of the Tribunal’s decision in Major Mallikarjun S Biradar, which has reached finality and is no longer res interga. Furthermore, the petitioner’s claim is based on the Tribunal’s decision in Major Mallikarjun S Biradar, which makes no mention of the need to operate a list larger than 50. As a result, the applicants received relief because they were among the 50 candidates found to be qualified for permanent commission on merit. Therefore, the petition is dismissed.

 

 

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Written by – Surya Venkata Sujith

 

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Supreme court slams Gujarat HC on having no jurisdiction to issue remission against the offenders of Bilkis Bano case : The accused(s) sent back to jail.

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TITLE : Bilkis Yakub Rasool V Union of India & Ors

CITATION : WP (CRL.) No. 491 of 2022

CORAM : Hon’ble justice Nagarathna

DECIDED ON : 8th January 2024

INTRODUCTION :

The Bilkis Bano judgement by the Supreme Court on 8th January 2024 sends the acquitted criminals back to jail for the charges of rape and murder which took place during the 2008 Gujarat riots. In the preface of the judgment, it is quoted that a woman deserves respect howsoever high or low she may be otherwise considered in society or to whatever faith she may follow or any creed she may belong to. Such powerful statement by the court is backed by the question of Can heinous crimes committed against women permit remission of the convicts by granting them a reduction of their sentences?

FACTS :

The accused of this current matter was released early by virtue of remission in 2022 who were guilty of committing heinous crimes during the Gujarat Riots of 2002. The crime came out of a communal vengeance against the victim who was brutally gang raped by the respondents. Further, the mother of Bilkis Yakub Rassol was gang raped and murder, including the cousin of the petitioner who at that time had just given birth. Along with that, eight other minors were murdered from the same family by the respondents. Furthermore, the petitioner’s three year old daughter and her brothers and sisters were also murdered by the accused.

Eventually, the perpetrators of the crime were convicted and sentenced. However, the petitioner had approached the hon’ble supreme court once again in challenging the remission granted to the respondents despite their commission of such heinous crimes.

The respondents were convicted for the offences punishable under Sections 143, 147, 148, 302 r/w 149 of the IPC for the murder of fourteen people; Section 376 (2)(e) & (g) for having committed gang-rape on the petitioner-victim; Section 376(2)(g) for having committed gang rape on other women.

One of the respondents after undergoing 14 years and 5 months in his sentence, filed an application to the Gujarat High Court challenging the not considering his application for premature release under Section 433 and 433A of CrPC and moved the case to the State of Maharashtra for premature release. The investigating officers, such as the CBI and police officers held in negative and stated that there should be no leniency given to the respondent and he must serve his full sentence. 

The respondent then again approached the HC of Gujarat in a criminal application seeking remission under Section 432 and 433 of CrPC. Furthermore, The Department of Home Affairs, Government of Gujarat, addressed a letter to the Secretary, Ministry of Home Affairs, Government of India, seeking sanction from the Government of India on the proposal for the premature release of the prisoners.

Submissions by the State :

  • It was contended by the state that the PIL is not maintainable either by law or by facts, by claiming that a third party has no locus to challenge the orders of remission.
  • It was submitted that since the petitioners not being aggrieved persons have invoked the jurisdiction of this Court under Article 32 of the Constitution for extraneous purposes. As the petitioners are not the “persons aggrieved”, the writ petition is not maintainable.
  • It was argued that the remission under Section 432 of CrPC, the appropriate government for considering remission would be the state in which the offence was committed and not in which the trial was conducted, therefore the state of Gujarat should take cognizance.

Submissions by the Petitioner :

  • It was submitted that in the present case, the right of the victim and the cry of the society at large have been ignored by the State and Central Governments while recommending the grant of remission to all convicts in the case.
  • For the question on jurisdiction for remission, the petitioner argued that the investigation and trial took place in Maharashtra and hence it would be the appropriate government.

ISSUES

  1. Whether the petition filed by one of the victims in Writ Petition (Crl.) No.491 of 2022 under Article 32 of the Constitution is maintainable?
  2. Whether the writ petitions filed as Public Interest Litigation (PIL) assailing the impugned orders of remission dated 10.08.2022 are maintainable?
  3. Whether the Government of the State of Gujarat was competent to pass the impugned orders of remission?
  4. Whether the impugned orders of remission passed by the respondent-State of Gujarat in favour of respondent Nos.3 to 13 are in accordance with law?
  5. What Order?

 

ANALYSIS

  1. Whether the petition filed by one of the victims in Writ Petition (Crl.) No.491 of 2022 under Article 32 of the Constitution is maintainable?

The court in its judgement held that Article 32 of the Constitution is a part of fundamental rights. The court stated that the petitioner had filed the writ to enforce her fundamental rights under Article 21 which talks about right to life and personal liberty and Article 14 which deals with the right to equality and equal protection of law. The court stated that Article 32 is a constitutional remedy which can be used to enforce the goals enshrined in the preamble of the Constitution which speak of justice, liberty, equality and fraternity.

The court stated that :

“Bearing in mind the expanded notion of access to justice which also includes speedy remedy, we think that the petition filed by the petitioner in Writ Petition (Crl.) No.491 of 2022 cannot be dismissed on the ground of availability of an alternative remedy under Article 226 of the Constitution or on the ground of its maintainability under Article 32 of the Constitution before this Court. “

  1. Whether the writ petitions filed as Public Interest Litigation (PIL) assailing the impugned orders of remission dated 10.08.2022 are maintainable?

The court held that with regards to the maintainability of the PILs in this case, one of the petitioners was Bilkis Bano herself who has filed through Article 32 Aswell, the petition itself would suffice for the maintainability of writ.

Therefore, it held that maintainability of PIL challenging the order of remission would not call for an answer as there is already a writ in the hand.

  1. Whether the Government of the State of Gujarat was competent to pass the impugned orders of remission?

The court held that the state of Gujarat is not the appropriate government as per Section 432 of CrPC which gives the provision for granting remission. Section 432(7) defines appropriate government as the :

“(7) In this section and in section 433, the expression” appropriate Government” means,-

(a) in cases where the sentence is for an offence against, or the order referred to in sub- section (6) is passed under, any law relating to a matter to which the executive power of the Union extends, the Central Government;

(b) in other cases, the Government of the State within which the offender is sentenced or the said order is passed.”

It was held that the state of Maharashtra would be the appropriate government as the sentence and trial took place there and stated that the remission orders have no legs to stand. It further stated that the government of Gujarat acted in jurisdictional error. It additionally held that the order of remission being vitiated and obtained by fraud and is therefore null and void.

  1. Whether the impugned orders of remission passed by the respondent-State of Gujarat in favour of respondent Nos.3 to 13 are in accordance with law?

The court gave the reasoning that the grant of remission is an exercise of discretion by the appropriate government. The test of discretion would be whether the authority concerned was acting within its powers. The power must not be in an arbitrary or perverse manner.

It held that there was a usurpation of power by the government of Gujarat. The assumption of power of State of Gujarat being the appropriate government is invalid and was set aside.

  1. What order?

The court had to decide whether the released criminals must be sent back to prison since the remission order is quashed. The court relied on Article 21 of the constitution that no person shall be deprived of personal liberty except in accordance with the law.

The court stated that,

“Conversely, we think that a person is entitled to protection of his liberty only in accordance with law. When a person’s liberty cannot be violated in breach of a law, can a person’s liberty be protected even in the face of a breach or violation of law? In other words, should rule of law prevail over personal liberty of a person or vice-versa?”

It stated that the justice should remain loyal to the rule of law and justice cannot be given without adherence to rule of law.

Therefore, the court held that for the respondents to seek remission, they have to be in prison again and they cannot seek remission when on bail or outside the jail. Therefore the plea of protection of liberty was not accepted by the court.

CONCLUSION :

The Supreme Court has held that rule of law prevails over personal liberty when the question arises to uphold justice. This case which quoted Plato for the concept for punishment as something to be inflicted, not for the sake of vengeance, for what is done cannot be undone, but for the sake of prevention and reformation has rightly interpreted the scope of justice to prevail and serve the victim’s suffering. 

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A writ of certiorari can be issued only when there is an error in law: Bombay HC

TITLE : Nutan Warehousing Company Pvt.Ltd V The commissioner, Central Tax, Pune

CITATION : WP 12775 of 2019

CORAM : Hon’ble justice G.S Kulkarni & Hon’ble justice Jitendra Jain

DATE:  11th December, 2023

INTRODUCTION :

A writ was filed under Article 226 of the Constitution to challenge the orders passed by the Appellate Authority for Advanced Ruling for Goods and Services Tax, Maharashtra on the issue whether the petitioner would be entitled to be exempted from service tax under the Notification No.12 of 2017, pertaining to loading, unloading, packing, storage or warehousing of agricultural produce.

FACTS :

The petitioner company is incorporated under the Companies Act of 1956 which carried out the business of warehousing, cold storage and refrigeration. The petitioner also has licence for carrying our their business. The petitioner has let out its warehouse to Unilever India Exports Ltd on payment of compensation as per the provisions of the Bombay Warehouses Act, 1959. The warehouse was used for manufacturing and bulk storing of tea from various qualities of tea. The petitioner was in the contention that tea procured in bulk would be exempted from central tax as it a  result of agricultural produce.

The authority fir advance ruling held in the negative and stated that tea procured were already processed and are undertaking the process of further manufacturing and packaging.

COURT’S ANALYSIS

The court stated that under Section 11 of the Central Goods and Services Act, the government can grant exemption from tax by passing a notification. The order of the AAR stating tea was a dried product is flawed.

It was held by the court that a writ of certiorari can be issued only when there is failure of justice and not merely because its available. There must be an error apparent on the face of the record as the High Court acts merely in a supervisory capacity.  The writ should be issued when there is a mistake in the jurisdiction and not when there is a scrutiny of an order passed by a authority. The court found that there is a error in law in the order passed by AAR and the writ was maintained.

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The Karnataka High Court has affirmed that unaided educational institutions managed by linguistic minority bodies are eligible to receive funding under Section 98 of the Karnataka Education Act.

Title: Rajarajeshwari Dental College and Hospital and Dr Sanjay Murgod

Decided on: 12th, OCTOBER 2023

Writ C No. – 580 OF 2023 (S-RES)

CORAM: The Hon’ble Mr Prasanna B. Varale, Chief Justice and The Hon’ble Mr Justice Krishna S Dixit 

INTRODUCTION

A legal dispute concerning the applicability of Section 98 of the Karnataka Education Act to unaided educational institutions run by linguistic minority organizations was brought before the Karnataka High Court in Bengaluru. The court’s ruling on this issue and its consequences for these institutions is outlined in its judgment, which was released on October 12, 2023. 

FACTS OF THE CASE

 A disagreement exists in this case between Dr. Sanjay Murgod and Rajarajeshwari Dental College. A single judge ruled that Dr. Murgod’s termination notice was invalid and ordered his reinstatement with back pay. In its appeal, Rajarajeshwari Dental College claimed that unaided educational institutions managed by linguistic minority bodies were exempt from Section 98 of the Karnataka Education Act. The court dismissed the appeal after ruling that Section 98 applied to these kinds of institutions.  

COURTS ANALYSIS AND DECISION

According to the Karnataka High Court, unaided educational institutions managed by linguistic minority organizations are subject to Section 98 of the Karnataka Education Act. The Rajarajeshwari Dental College’s appeal was denied by the court, which upheld the section’s application to all employees of educational institutions in order to safeguard their employment security and working conditions. The significance of defending workers’ interests in the education sector is emphasized by this ruling.  

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Written by- Kusuma R

Karnataka Hc 1

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