Constitution Of Arbitral Tribunal Is Not A Bar On A Party's Right To Approach Section 9 Court For Implementation Of Its Order: Calcutta High CourtCase Title: RKD Niraj JV & Ors v. Union of India & Ors, WPO No. 173 of 2024 Citation: 2024 LiveLaw (Cal) 100The High Court of Calcutta has held that constitution of arbitral tribunal is not a bar on a party's right to approach Section 9...
Case Title: RKD Niraj JV & Ors v. Union of India & Ors, WPO No. 173 of 2024
Citation: 2024 LiveLaw (Cal) 100
The High Court of Calcutta has held that constitution of arbitral tribunal is not a bar on a party's right to approach Section 9 Court for implementation of its order.
The bench of Justice Sabyasachi Bhattacharyya held that bar under Section 9(3) which proscribe Section 9 remedy upon constitution of arbitral tribunal would not apply when the Court is reapproached for the enforcement of an order passed before the constitution of the tribunal.
Case No: Sudarsan Mandal and Another v The State of West Bengal and others
Citation: 2024 LiveLaw (Cal) 101
The Calcutta High Court has recently held that in cases of in-vitrio fertilisation (IVF), it is not mandatory that either the sperm or the oocyte must come from the couple seeking IVF themselves.
A single bench of Justice Sabyasachi Bhattacharya perused the rules under the Assisted Reproductive Technology (Regulation) Act, 2021 (Act) and allowed a plea by a husband who along with his wife sought to conceive through IVF, after losing their teenage daughter at a young age. The couple was facing difficulties due to the husband being 59 years old, and above the limit for IVF according to the Act, while the wife being 46-years old was eligible for the same.
Case Title: Meleveetil Damodaran v. UpHealth Holdings Inc, AP-COM No. 490 of 2024
Citation: 2024 LiveLaw (Cal) 102
The Calcutta High Court has held that while hearing a post award application under Section 9 of the A&C Act, the Court would not have the jurisdiction to decide on the correctness of the award.
The Division Bench of Justices I.P. Mukerji and Biswaroop Chowdhury held that the Court would not adjudicate on whether the damages awarded in the arbitral award are correct or not.
Citation: 2024 LiveLaw (Cal) 103
Case: AKASH SHARMA VS UNION OF INDIA AND ORS
The Calcutta High Court disposed of a PIL seeking an extension of metro timings in Kolkata by directing the railway authorities to consider the petitioner's prayer for an extension of the timings for the last metro by 45 minutes every day.
A division bench of Chief Justice TS Sivagnanam and Justice Hiranmay Bhattacharya said:
"While the domain of running metro services is the expertise of the railways and the court cannot comment on the same, we direct the authorities to consider the representation made by the petitioner for extension of metro timings by 45 minutes, till 10:30pm for the benefit of the commuters."
Citation: 2024 LiveLaw (Cal) 104
Case: Partha Chatterjee. -vs.- Enforcement Directorate
The Calcutta High Court has declined the bail prayer of former Education Minister and Member of Legislative Assembly Partha Chatterjee in the cash-for-jobs recruitment scam, involving the illegal recruitment of Assistant Teachers under the West Bengal Board of Primary Education.
A single bench upon going through the evidence including the amounts of money and assets, jewellery seized from Chatterjee and co-accused Arpita Mukherjee denied the bail application.
Citation: 2024 LiveLaw (Cal) 105
Case Name- Dr. Tapas Kumar Mandal Vs. UOI & Ors
A single judge bench of the Calcutta High Court comprising of Justice Amrita Sinha while deciding a Writ Petition in the case of Dr. Tapas Kumar Mandal Vs. UOI & Ors has held that an employee has no right to be promoted but he has a fundamental right to be considered for promotion.
Citation: 2024 LiveLaw (Cal) 106
Case Name: Harendra Nath Bishayi vs State of West Bengal & Ors.
A single judge bench of the Calcutta High Court comprising of Rajasekhar Mantha, J., while deciding a writ petition in the case of Harendra Nath Bishayi v. State of West Bengal & Ors., held that employees who have not received their withheld pension amounts have the legal right to seek recourse in court, regardless of any delay in doing so.
Citation: 2024 LiveLaw (Cal) 107
Case Name- M/s. Dalhousie Jute Company Vs. The State of West Bengal & Ors.
A single judge bench of the Calcutta High Court comprising of Justice Arindam Mukherjee while deciding a Writ Petition in the case of M/s. Dalhousie Jute Company Vs. The State of West Bengal & Ors. has held that non-rendering of uninterrupted service due to accident would not amount to break in service for the purposes of Section 2A of Payment of Gratuity Act, 1972 (Gratuity Act).
Citation: 2024 LiveLaw (Cal) 108
Case Name- Animesh Singha Mahapatra and Ors. vs State of WB and Ors
A single judge bench of the Calcutta High Court comprising of Justice Partha Sarathi Chatterjee while deciding a Writ Petition in the case of Animesh Singha Mahapatra and Ors. vs State of WB and Ors. has held that once the process of recruitment starts, no change can be made to essential qualification during the subsistence of the recruitment process unless such power is reserved in the advertisement itself or under some rule governing the recruitment.
Citation: 2024 LiveLaw (Cal) 109
Case Name- Saurav Krishna Basu vs State of West Bengal
A Division Bench of the Calcutta High Court comprising of Justice Partha Sarathi Chatterjee and Justice Tapabrata Chakraborty while deciding a Writ Petition in the case of Saurav Krishna Basu vs State of West Bengal has held that employer is under an obligation in a disciplinary proceeding to ensure that no prejudice is caused to the employee and this obligation involves a duty to act fairly.
Citation: 2024 LiveLaw (Cal) 110
Case Title: Sk. Ekbal @ Ekbal Sk. vs The State of West Bengal and Ors.
The Calcutta High Court single bench of Justice Arindam Mukherjee held that the was entitled to gratuity for his continued service even after the declaration of formal retirement. The bench noted that the establishment of a period of 'continuous service' is a prerequisite for the payment of gratuity and the burden of proof lies with the Workman.
Citation: 2024 LiveLaw (Cal) 111
Case: Dr. Sima Banerjee Vs Dr. Barnali Chattopadhyay
The Calcutta High Court has recently laid down guidelines of 'professional standards' for college teachers in a revision plea filed by a teacher for quashing proceedings under Sections 499/500 IPC for allegedly defaming a colleague.
A single bench of Justice Shampa (Dutt) Paul quashed the case and held that the hostile atmosphere of the college due to political influence, which led to one teacher making allegedly defamatory comments against another during an interview had led to the primary cause of education being overlooked, and overall led to a detriment in student welfare.
Citation: 2024 LiveLaw (Cal) 112
Case Title: Lokenath Construction Private Limited Versus Tax/Revenue Government Of West Bengal And Others
The Calcutta High Court has held that the adjudicating authority, without resorting to any action against the supplier, who is the selling dealer, ignored the tax invoices produced by the appellant as well as the certificates issued by the Chartered Accountants, which are erroneous and wholly without jurisdiction.
The bench of Chief Justice T.S. Sivagnanam and Justice Hiranmay Bhattacharyya has observed that even in the show-cause notice, the authority has admitted that "it is true that the recipient has made payment of the element of tax to the supplier against such transaction, but the payment of such tax has not been reciprocated to the exchequer." If the authority has admitted the fact that the recipient, who is the appellant, has made payment of the tax to the supplier against the transaction, If it is the case of the department that such tax has not been remitted to the state exchequer, the elementary principle to be adopted is to cause an inquiry with the supplier, and without doing so to penalize the appellant, it would be arbitrary, illegal, and without jurisdiction.
Citation: 2024 LiveLaw (Cal) 113
Case Name- CSB Bank Ltd vs UOI & Anr.
A single judge bench of the Calcutta High Court comprising of Justice Arindam Mukherjee while deciding a Writ Petition in the case of CSB Bank Ltd vs UOI & Anr. has held that an order of a Tribunal can be challenged in a writ petition without waiting for the final order on ground of being in excess of jurisdiction.
Citation: 2024 LiveLaw (Cal) 114
Case Title: Dhansar Engineering Company Private Limited Vs Eastern Coalfields Limited
The Calcutta High Court single bench of Justice Ravi Krishan Kapur held that if an agreement or clause within it necessitates or anticipates additional consent before arbitration can occur, it doesn't constitute arbitration itself but rather an agreement to potentially engage in arbitration in the future, which isn't inherently enforceable. It held that incorporating an arbitration clause via a subsequent circular isn't valid unless it's explicitly mentioned and included in the original agreement between the parties.
The bench held that without mutual intent to integrate the arbitration clause from another document into the current contract between the parties, there's no valid arbitration agreement.
Citation: 2024 LiveLaw (Cal) 115
Case: Rama Prasad Sarkar v State of West Bengal & Ors
The Calcutta High Court has dismissed pleas seeking the Court's intervention over the issue of NRI quota in medical admissions and compliance with the Supreme Court's guidelines on the same.
In dismissing the plea, a division bench of Chief Justice TS Sivagnanam and Justice Hiranmay Bhattacharya noted that the pleas were from 2019, and that since then there were various changes to the admission process making it more stringent to take admission under the NRI quota. It also observed that the students who had been admitted in that year would have all completed their course and as such the plea challenging their admissions would be rendered academic.
Citation: 2024 LiveLaw (Cal) 116
Case Title: Principal Commissioner Of Income Tax Vs Atlantic Dealers Pvt. Ltd.
The Calcutta High Court, while deciding whether the addition made under Section 68 of the Income Tax Act, 1961, was justified or not, held that only because the directors failed to respond to the notices issued, the Assessing Officer could draw an adverse inference.
The bench of Chief Justice T.S. Sivagnanam and Justice Hiranmay Bhattacharyya has observed that the assessing officer failed to comment on the veracity or admissibility of any of the details or documents produced by the assessee to prove the identity, the creditworthiness of the share subscribers, and the genuineness of the transaction.
Citation: 2024 LiveLaw (Cal) 117
Case Name : Badal Kumar Mandal vs. Chairman Indian Museum Board Of Trust And Ors.
A single judge bench of the Calcutta High Court comprising of Hon'ble Justice Rajasekhar Mantha, while deciding Writ Petition in the case of Badal Kumar Mandal vs. Chairman Indian Museum Board Of Trust And Ors., held that irrespective of whether the upgradation of pay scale and posts is made contrary to law, recovery of any excess payment received by the employee on the ground of such revision cannot be made either at the end of the service of the employee or thereafter.
Citation: 2024 LiveLaw (Cal) 118
Case: Malda District Central Cooperative Bank Employees Association and others Vs. The Election Commission of India and others
The Calcutta High Court has recently allowed a plea by the Associations, working for the Malda Districts Central Cooperative Bank and the Mugberia Central Cooperative Bank (petitioners), directing that the Election Commission of India (ECI) shall not requisition them for the purpose of any parliamentary elections, since the organisations which they worked in, were not created by any statute or under any law.
A single bench of Justice Sabyasachi Bhattacharya held:
"We do not operate in a totalitarian state and, as such, it cannot be held that the Government has blanket power over any and every institution or concern or undertaking or operating under the Sun within the territory of India for any purpose whatsoever, unless so stipulated specifically in the Constitution or any specific law. For the limited purpose under discussion thus, Article 324 has to be read in conjunction with Section 159 of the Representation of People Act. The bank cannot be said to be one controlled, partially or wholly, or financed by any Government."
Citation: 2024 LiveLaw (Cal) 119
Case: Rita Ghoshdastidar v. St. Joseph & Mary's School and Ors.
A single bench of the Calcutta High Court comprising of Justice Hiranmay Bhattacharyya while deciding a writ petition in the case of Rita Ghoshdastidar v. St. Joseph & Mary's School and Ors. has held that a writ petition challenging the termination of a teaching staff member from a private unaided educational institution is not maintainable if dispute primarily involves private contractual matters.
Citation: 2024 LiveLaw (Cal) 120
Case Title: MFAR Constructions Private Limited vs Bengal Shristi Infrastructure Development Limited
The Calcutta High Court division bench of Justice I. P. Mukerji and Justice Biswaroop Chowdhury held that attempts made by the arbitrator to encourage the parties to reach a settlement cannot be termed as 'conciliation proceeding' under Part-III of the Arbitration and Conciliation Act, 1996. The bench held that conciliation is seen as an independent proceeding or an alternative dispute redressal forum the object of which is to reach a settlement between the parties. It has its own procedure and ultimate result.
Citation: 2024 LiveLaw (Cal) 121
Case: Paresh Ghosh & Ors. Vs The State of West Bengal
The Calcutta High Court has recently held that if there is an inconsistency between the evidence of the witness for the prosecution and medical evidence, it would signify a fundamental defect in the case of the prosecution, which unless reasonably explained would discredit the entire prosecution case.
A single bench of Justice Shampa (Dutt) Paul modified the sentence imposed on the accused who were involved in physical assault, by convicting them u/s 324 IPC instead of 323 IPC and held:
If the evidence of the witness for the prosecution is inconsistent with the medical evidence, this is a most fundamental defect in the prosecution case and unless reasonably explained, it is sufficient to discredit the entire case. In the present case, it is on record that there was an altercation between two groups and a free fight took place. Evidence shows assault by lathi or Bamboo. The injuries as discussed above are also not grievous and the instruments as noted by the doctor allegedly used for the assault were not dangerous sharp-edged weapons as alleged. No fracture either in the scalp or elsewhere has been noted.
Citation: 2024 LiveLaw (Cal) 122
Case Title: Bmg Gulf Fzc Vs Quippo Oil And Gas Infrastructure Limited
The Calcutta High Court single bench of Justice Ravi Krishan Kapur held that it is for members of the Bar to introspect and take necessary steps and spare the Courts of the unpleasant duty. The decision came while reviewing applications presented before the Commercial Court and High Court, which were held to be beyond their jurisdiction.
Specifically, the Commercial Court was held to be not empowered to entertain applications under Section 9 of the Arbitration and Conciliation Act, 1996. Additionally, the bench held that the High Court lacked the authority to appoint an arbitrator in International Commercial Arbitration.
Citation: 2024 LiveLaw (Cal) 123
Case Name : Malda District Central Cooperative Bank Employees Association and others vs. The Election Commission of India and others
A single bench of the Calcutta High Court comprising of Justice Sabyasachi Bhattacharyya, while deciding Writ Petitions in the case of Malda District Central Cooperative Bank Employees Association and others vs. The Election Commission of India and others, held that Cooperative bank employees cannot be considered as “public servants” under Section 21 of the IPC when it comes to election duties.
Citation: 2024 LiveLaw (Cal) 124
Case Title: Balgopal Merchants Private Limited Versus The Principal Commissioner Of Income Tax -2, Kolkata
The Calcutta High Court has held that the source of investments by those two companies is also the share capital and share premium raised by them while issuing their own shares to other closely held companies, and those companies had no noticeable business activities.
The bench of Chief Justice T.S. Sivagnanam and Justice Hiranmay Bhattacharyya, while upholding the ITAT's order, noted that the effects of the documents were considered by the tribunal, and it was not satisfied with the genuineness of the transaction. More importantly, the assessee itself claimed that there was no noticeable business activity during the year. Thus, the tribunal ultimately concluded that the assessee has failed to establish the basic ingredients required to be established under Section 68.
Citation: 2024 LiveLaw (Cal) 125
Case Title: Commissioner Of Customs (Preventive) Versus Shri Rajendra Kumar Damani @ Raju Damani
The Calcutta High Court has held that it is the duty cast upon the court to examine the correctness of the validity of the retraction, the point of time at which the retraction was made, whether the retraction was consistent, and whether it was merely a ruse.
The bench of Chief Justice T.S. Sivagnanam and Justice Hiranmay Bhattacharyya has observed that if the tribunal was of the view that the statement recorded under Section 108 of the Act was not admissible on account of the retraction, that by itself cannot render the statement involuntary.
Citation: 2024 LiveLaw (Cal) 126
Case Title: Principal Commissioner Of Income Tax, Asansol Versus Sri Manoj Parmar And Others
The Calcutta High Court has held that the income tax department was delaying the matter for a prolonged period and failed to incorporate the revised Central Public Works Department (CPWD) rates as the quantum of rent for the building.
The bench of Chief Justice T.S. Sivagnanam and Justice Hiranmay Bhattacharyya, while dismissing the appeal filed by the department, observed that ultimately a partial reprieve was given to the owners of the building by virtue of the interim order. Considering all these aspects, it is evidently clear that there is no disputed question of fact and all that the hiring department was harping upon with regard to the CPWD rates.
Citation: 2024 LiveLaw (Cal) 127
Case Title: Commissioner Of Income Tax, Central-Iii, Kolkata Versus M/S. Vamshi Chemicals Ltd.
The Calcutta High Court has held that if the share application money is neither a loan nor a deposit, then neither Section 269SS nor 269T of the Income Tax Act, 1961 shall apply. Consequently, no penalty, either under Section 271D or under Section 271E of the Income Tax Act, 1961, could be imposed.
The bench of Justice Surya Prakash Kesarwani and Justice Rajarshi Bharadwaj has observed that in cases of loans, it is ordinarily the duty of the debtor to seek the creditor and to repay the money according to the agreement. In other words, a loan grants temporary use of money or temporary accommodation under certain conditions.
Citation: 2024 LiveLaw (Cal) 128
Case: Bharatiya Janata Party v All India Trinamool Congress & Ors
The Calcutta High Court has dismissed an appeal by Bharatiya Janata Party (BJP) against an order by a single judge which restrained it from printing certain allegedly derogatory advertisements against the Trinamool Congress (TMC) which violated the model code of conduct during the Lok Sabha Elections, 2024.
A division bench of Chief Justice TS Sivagnanam and Justice Hiranmay Bhattacharya held:
We are not inclined to entertain this appeal. The grievance is that they were not served or heard. It is submitted that the single bench's refer must be deleted and the appellant be allowed to present their submissions. can't test the correctness of the order based on submissions that were never placed before the single bench who did not get to hear the appellant. The appellant is not remediless and they can seek for recall or review.
Citation: 2024 LiveLaw (Cal) 129
Case No: AMAL CHANDRA DAS -VERSUS- THE STATE OF WEST BENGAL AND OTHERS
The Calcutta High Court on Wednesday cancelled all Other Backward Classes (OBC) certificates issued in West Bengal after 2010. The Court clarified that those who had attained employment on the benefit of the act and were already in service because of such reservation would not be affected by the order.
A division bench of Justices Tapabrata Chakraborty and Rajasekhar Mantha delivered the verdict in a plea challenging the process of granting OBC certificates in the state. The verdict is set to affect 5 Lakh OBC certificates. The Court said:
A class is declared as OBC not only because it is backward, based on scientific and identifiable data, but also on the basis of such class being inadequately represented in the services under the State. Such inadequacy is required to be assessed vis-a-vis the population as a whole including other unreserved classes. However, the pro format published by the Commission and as annexed to the writ petition (WP No.60 of 2011) does not conform to the provisions of the 1993 Act. There are deficiencies galore in the said pro format.
Citation: 2024 LiveLaw (Cal) 130
Case: X v State of West Bengal & Ors
The Calcutta High Court has directed the local committee, 24-Parganas (North), constituted under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (in short, the Act of 2013) ("POSH Committee") to reconsider a complaint by a professor of NUJS Kolkata, accusing the University's Vice-Chancellor ('VC') of sexual harassment.
The POSH Committee in the impugned order, had dismissed the petitioner's complaint on the grounds that it was barred by limitation.
Citation: 2024 LiveLaw (Cal) 131
Case Title: Uphealth Holdings Inc VS Glocal Healthcare Systems Pvt Ltd And Ors
The Calcutta High Court bench of Justice Ravi Krishan Kapur held that the procedure of filing information in sealed covers for enforcement of arbitral award is contrary to the basic process of justice. It held that the concept of sealed covers also makes serious inroads into the principle of natural justice and fairness.
The bench held that:
“If the respondent was in the dark about the financial affairs of the petitioner prior to the filing of the application under section 9 of the Act, it is now sought to be kept in anxiety and suspense if the filing of sealed covers is permitted. There is no element of public interest nor national security involved in these proceedings. The parties are commercial men. The disputes raised between the parties are purely contractual. The underlying interests of both the parties is pure and simple money. In these commercial matters, there is no place for confidentiality nor privacy nor sealed covers.”
Citation: 2024 LiveLaw (Cal) 132
Case Title: Saltee Productions Private Limited Vs. Indus Towers Limited
The Calcutta High Court bench of Justice Hiranmay Bhattacharyya held that the starting point of limitation for setting aside an award in a case where a request under Section 33 of the Arbitration Act is made is the date of disposal of such request.
The bench held that the time spent from the date of disposal of such request till the signed copy of the order is delivered to the party shall necessarily stand excluded while calculating the period of limitation under Section 34(3) of the Arbitration and Conciliation Act, 1996.
Citation: 2024 LiveLaw (Cal) 133
Case Title: M/S. Anurag Steel Enterprise Versus Commissioner Of Cgst & Central Excise, Howrah Cgst & Cx Commissionerate
The Calcutta High Court bench of Justice Ravi Krishan Kapur held that the procedure of filing information in sealed covers for enforcement of arbitral award is contrary to the basic process of justice. It held that the concept of sealed covers also makes serious inroads into the principle of natural justice and fairness.
The bench held that:
“If the respondent was in the dark about the financial affairs of the petitioner prior to the filing of the application under section 9 of the Act, it is now sought to be kept in anxiety and suspense if the filing of sealed covers is permitted. There is no element of public interest nor national security involved in these proceedings. The parties are commercial men. The disputes raised between the parties are purely contractual. The underlying interests of both the parties is pure and simple money. In these commercial matters, there is no place for confidentiality nor privacy nor sealed covers.”
Citation: 2024 LiveLaw (Cal) 134
Case Title: The Royal Bank Of Scotland N.V. @ Abn Amro Bank N.V. Vs Director Of Income Tax, International Taxation 2(1), Kolkata
The Calcutta High Court has held that the letter by the joint secretary cannot override the plain and unambiguous provisions of the Income Tax Act, 1961, and the Finance Act.
The bench of Justice Surya Prakash Kesarwani and Justice Rajarshi Bharadwaj has observed that the letter of the Joint Secretary merely informs that “the matter has been looked into and the board is of the opinion that the tax rate applicable in the case of ABN AMRO BANK would be the same as for an Indian company at the relevant tax rate applicable for the concerned assessment years." The letter is a D.O. letter. It is not a circular issued in exercise of power conferred under Section 119 of the Income Tax Act, 1961. Apart from that, the letter is in conflict with the plain and unambiguous provisions of the Act of 1961 and the Finance Act.
Citation: 2024 LiveLaw (Cal) 135
Case: Padam Subba v State Of West Bengal
The Calcutta High Court has recently reversed a death sentence awarded to a man who was accused of brutally murdering a home-maker and her 13-year-old daughter with a sharp and heavy weapon.
A division bench of Justices Soumen Sen and Partha Sarathi Sen were adjudicating upon a death reference case wherein the trial court had handed a death sentence to Padam Subba (accused) who was a domestic help in the home of the mother-daughter duo whom he allegedly murdered. The Court stated that while the charge of murdering the mother had been proved against the accused, the charge of murdering the daughter had not been conclusively proven.
Citation: 2024 LiveLaw (Cal) 136
Case Title: Smt. Tara Devi & Anr. Vs. Bank of India & Ors.
The Calcutta High Court single bench of Justice Rai Chattopadhyay held that in case an employee is untraceable for more than seven years and their death is presumed, the terminal benefits should be extended to the heirs of the employee.
The bench held that:
“This Court is of the view that having not denied service of the said missing person with the respondent Bank for years together the Bank cannot shut the doors on the face of his legal heirs when time comes for the Bank authorities to compensate adequately, the legal heirs of the person, in absence of the said person. The greater objective of supporting the family of an employee who may not be in a position to earn and support the family, cannot be sub-served for some technical reasons.”
Case Title: Ankit Kumar Agarwal Versus The Assistant Commissioner of State Tax, Taltala Charge & Ors.
Citation: 2024 LiveLaw (Cal) 137
The Calcutta High Court has held that ignoring GSTR-9 causes prejudice to taxpayers's rights when errors committed are revenue neutral.
The bench of Chief Justice T.S. Sivagnanam and Justice Hiranmay Bhattacharyya has remanded the matter back to the adjudicating authority, viz., the Assistant Commissioner, State Tax, Taltala, and New Market Charge, to consider the submissions made by the assessee, afford an opportunity of personal hearing, and examine the annual return filed in GSTR-9.
Case: Dr. Rathin Chakraborty Vs. The Election Commission of India and Ors
Citation: 2024 LiveLaw (Cal) 138
The Calcutta High Court has directed the Election Commission of India (ECI) to ensure that counting staff for Lok Sabha polls 2024 are appointed according to the guidelines prescribed by the Chief Electoral Officer (CEO) of West Bengal.
Votes cast in the Lok Sabha polls are slated to be counted across the country on Tuesday, 4th June 2024, from 8 am onwards.
A plea was moved by Rathin Chakraborty, BJP's candidate from the Howrah constituency, who sought direction on the ECI not to engage contractual, casual, Anganwadi workers, para teachers and civic volunteers for the counting of votes in Lok Sabha elections 2024.
Justice Amrita Sinha directed the ECI to ensure that the counting staff was appointed strictly according to guidelines prescribed by the CEO of West Bengal.
Case Title: Union Of India & Anr. Vs M/S Ramswarup Lohh Udyog & Ors
Citation: 2024 LiveLaw (Cal) 139
The Calcutta High Court bench of Justice Sugato Majumdar held that after the insolvency proceeding is over and the resolution plan is duly approved by the National Company Law Tribunal, the corporate entity starts with a clean slate on rejuvenation.
The High Court held that once insolvency proceedings are concluded and a corporate resolution plan is approved, the affected companies commence operations with a clean slate (referred to Ghanashyam Mishra & Sons (P.) Ltd. vs. Edelweiss Asset Reconstruction Co. Ltd, Sirpur Paper Mills Limited vs. I.K. Merchants Pvt. Ltd, CoC of Essar Steel India Limited through Authorised Signatory vs. Satish Kumar Gupta & Ors, India Resurgence ARC Pvt. Ltd. vs. Amit Metaliks Ltd. & Anr and Innovative Industries Limited vs. ICICI Bank & Anr.)
Case Title: Principal Commissioner Of Income Tax-9, Kolkata Vs. Bina Gupta
Citation: 2024 LiveLaw (Cal) 140
The Calcutta High Court has upheld the revision order passed by the Principal Commissioner of Income Tax (PCIT) under Section 263 of the Income Tax Act, as the AO failed to make a proper inquiry on the bogus claim of long-term capital gain (LTCG) by the sale of shares.
The bench of Chief Justice T.S. Sivagnanam and Justice Hiranmay Bhattacharyya has observed that in the order under Section 263 of the Act, which shows that the PCIT has applied its mind, it came to the prima facie conclusion that the assessing officer should have treated the entire credit as bogus and added back the same under Section 263 of the Act, rejecting the claim for exemption under Section 10(38) of the Income Tax Act. Therefore, PCIT has not solely proceeded based on the report of the assessing officer, but on perusal of the report, it has examined the facts.
Citation: 2024 LiveLaw (Cal) 141
Case Name : Sri Kunal Chandra Sen vs. State of West Bengal & Ors.
A single judge bench of the Calcutta High Court comprising of Justice Aniruddha Roy, while deciding Writ Petition in the case of Sri Kunal Chandra Sen vs. State of West Bengal & Ors., held that the state cannot use public interest and accountability as an excuse to indefinitely delay the release of employees' pensions.
Citation: 2024 LiveLaw (Cal) 142
Case: THE KOLKATA MUNICIPAL CORPORATION AND ANR VS NATIONAL RESTAURANT ASSOCIATION OF INDIA AND ORS
The Calcutta High Court has upheld an order passed by a single bench which had held that hookah bars across the state of West Bengal could not be shut down pursuant to the court's orders until the state government enacted a law banning their operation.
A division bench of Chief Justice TS Sivagnanam and Justice Hiranmay Bhattacharya upheld an earlier order passed by a bench of Justice Rajasekhar Mantha and dismissed the present appeal by the Kolkata Municipal Corporation (KMC).
Citation: 2024 LiveLaw (Cal) 143
Case Title: Mr. Birendra Bhagat vs. Arch Infra Properties Private Limited
The Calcutta High Court bench of Justice Shampa Sarkar held that a clause laying down the settlement of the dispute by an expert cannot be said to be an arbitration clause. The bench held that an arbitral tribunal arrives at its decision on the evidence and submissions of the parties and must apply the law.
It held that an expert, unless it is agreed otherwise, makes his own enquiries applies his own expertise and decides how to resolve a problem or a dispute or difference. It held such clauses do not reflect the intention of the parties to submit to the jurisdiction of an independent arbitrator.
Citation: 2024 LiveLaw (Cal) 144
Case: Bharati Tamang v Central Bureau of Investigation & Anr.
The Calcutta High Court has recently directed the Central Bureau of Investigation (CBI) to reinstate Gorkha Janmukti Morcha (GJM) leader Bimal Gurung in a 2010 murder case of Madan Tamang. who was a leader of the All India Gorkha League.
Tamang, who was vocally opposed to the violent means and corruption in the GJM, was brutally hacked to death in 2010 when members of the GJM stormed his party's gathering and attacked those present with 'khukris' and sticks. Tamang was brutally stabbed and later died in hospital.
A single-judge bench of Justice Subhendu Samanta set aside an order of the trial court which had discharged Gurung as an accused in the 2010 murder case, in an appeal by Tamang's widow.
Citation: 2024 LiveLaw (Cal) 145
Case: Mrinal Barik -Versus- The State of West Bengal & Ors.
In a landmark development, the Calcutta High Court has directed the West Bengal government to ensure 1% reservation for all transgender persons in public employment in the State, in accordance with the Supreme Court's NALSA guidelines.
A single bench of Justice Rajasekhar Mantha held:
This Court, however, notes that in terms of paragraph 135 (3) in the National Legal Service Authority Vs. Union of India & Ors. (2014) reservation has not yet been made in the State for transgender persons. In those circumstances, this Court directs the Chief Secretary of the Government of West Bengal to ensure 1% reservation for the category of persons mentioned in the NALSA case in all public employment in the State.
Citation: 2024 LiveLaw (Cal) 146
Case: PEOPLE UNITED FOR BETTER LIVING IN CALCUTTA (PUBLIC) VERSUS STATE OF WEST BENGAL AND OTHERS
The Calcutta High Court has declined a plea by the “People United For Better Living in Kolkata (public)” (petitioners) seeking to halt all construction work for a metro station to be constructed in Kolkata's Maidan area due to the uprooting of around 700 trees in the area adjoining Victoria Memorial.
The petitioners sought to stop the Rail Vikas Nigam Limited (RVNL) from continuing its construction work and call for a review of the proposed project by independent experts and to examine and submit an expert report on the feasibility of transplanting the trees. The petitioners contended that from various news reports, they came to understand that 700 trees in the Maidan area are to be transplanted, 500 trees will have to be removed to make way for permanent structures and additionally 200 trees will be transplanted to allow movement of trailers and construction machinery like trains etc.
Citation: 2024 LiveLaw (Cal) 147
Case Title: Dabur India Limited vs Dhruv Rathee And Ors.
In a recent development in the dispute between Dabur India Limited and Dhruv Rathee, Rathee has proposed to Calcutta High Court to settle the dispute amicably. The celebrated YouTube influencer, Rathee has agreed to either blur or replace the packaging resembling Dabur's 'Real' juice with generic fruit juice packaging in the disputed video without prejudice to his rights and contentions, including Rathee's right to freedom of speech and expression and to make fair comment.
The dispute before Justice Arindam Mukherjee of the Calcutta High Court centred around allegations by Dabur India Limited concerning references to its 'REAL' juice product in Rathee's video. The proceedings took a turn during a hearing on February 29, 2024, when Rathee proposed to blur images resembling Dabur's 'Real Juice' packet in the disputed video.
Citation: 2024 LiveLaw (Cal) 148
Case: Fiona Majumdar -vs- The Union of India & ors.
The Calcutta High Court on Friday asked a candidate who had approached the Court for a re-test due to having lost around 1.5 hours of her exam as a result of a torn OMR sheet, to approach the Supreme Court.
A single bench of Justice Jay Sengupta held:
It is an admitted fact that there was some damage in the OMR sheet for which the petitioner was not to be blamed. As has now been clarified by the learned counsel for the NTA that if an appropriate case is made out or if there is an order passed by a Court, the authorities can retest a candidate. The Hon'ble Supreme Court is in seisin of matters concerning compensation for loss of time during examination and has made certain findings in an application. The petitioner is at liberty to take appropriate steps.
Citation: 2024 LiveLaw (Cal) 149
Case: In the matter of: Christian Mac Durand
The Calcutta High Court Circuit Bench at Jalpaiguri has quashed proceedings under the Foreigners Act, against a Swiss tourist who entered India without a valid arrival stamp on his passport. The tourist was booked under Section 14 of the Foreigners Act.
In quashing the case while holding the petitioner's actions to be a bona fide mistake, a single bench of Justice Bivas Pattanayak held:
"During investigation no such mala fide intention of the petitioner transpired, save and except that the Passport was bereft of arrival stamp. From the materials placed before this Court, it is found that the case has resulted out of a bona fide mistake of the petitioner. In view of the above, the act of petitioner is protected by Section 15 of the Foreigners Act, 1946 which provides that no suit prosecution or other legal proceeding shall lie against any person for anything which is in good faith done or intended to be done under the Act."
Citation: 2024 LiveLaw (Cal) 150
Case Title: Saila Ghosh Versus State of West Bengal
The Calcutta High Court, while dismissing the appeal of the assessee, upheld the 50% waiver of the interest on property tax.
The bench of Justice Joymalya Bagchi and Justice Gaurang Kanth has observed that the bills claiming enhanced property tax had not been raised during the arrears period are wholly unfounded, and the appellant ought not to be permitted to raise them at the appellate stage.
Citation: 2024 LiveLaw (Cal) 151
Case: VHP Dakshinbanga v Union of India
The Calcutta High Court has declined to hear a public interest litigation (PIL) by the Vishwa Hindu Parishad (VHP) against West Bengal Chief Minister Mamata Banerjee, for making allegedly objectionable remarks against a monk during her election rally for the recently concluded Lok Sabha polls.
While dismissing the plea, a division bench of Chief Justice TS Sivagnanam and Justice Hiranmay Bhattacharya remarked:
"This is an old story...we have got better work to do, we hope you (counsel for petitioner) have got better work to do. You are needed in the other courts, to get relief for your clients."
Citation: 2024 LiveLaw (Cal) 152
Case Title: Uphealth Holdings, INC. vs Dr. Syed Sabahat Azim & Ors.
The Calcutta High Court single judge bench of Justice Shampa Sarkar held that without a comprehensive cross-border insolvency framework, Indian courts do not recognize or enforce moratorium orders from non-reciprocating countries, such as the U.S., and thus are not obligated to stay ongoing suits due to such foreign proceedings.
Calcutta High Court Imposes 10K Cost On Litigants For Filing 'Fake' Post-Poll Violence Case
Citation: 2024 LiveLaw (Cal) 153
Case: GOPA DAS VS STATE OF WEST BENGAL AND ORS
The Calcutta High Court has imposed a fine of Rs 5000 each on a petitioner and defendant for filing a fake case relating to post-poll violence in West Bengal in the aftermath of the Lok Sabha Elections 2024.
A single bench of Justice Amrita Sinha imposed the total cost of Rs 10,000 when the parties had approached the court seeking to withdraw their case.
During the hearing of the case, the parties had submitted before the Court that they wished to withdraw the case as an amicable settlement had been arrived at between them after the petitioners initially claimed that they were BJP workers who were ousted from their homes by those belonging to the ruling dispensation.
Calcutta High Court Grants Bail To Former TMC MLA Arabul Islam Accused In Murder Of ISF Leader
Citation: 2024 LiveLaw (Cal) 154
Case: Arabul Islam vs The State of West Bengal
The Calcutta High Court has granted bail to Trinamool Congress (TMC) leader and former MLA Arabul Islam who was accused in the murder of an Indian Secular Front (ISF) leader.
Islam was arrested by the police in February on suspicion of murder and vandalism of government property.
A division bench of Justices Arijit Banerjee and Prasenjit Biswas granted bail to Islam upon imposing several conditions on him.
The complaint against the petitioner was filed when there was a confrontation between him and his supporters and members of the rival political party during the filing of nomination for the 2023 Panchayat Elections.
Citation: 2024 LiveLaw (Cal) 155
Case Title: M/s. Asian Hotels (East) Ltd. & Anr. Versus The Deputy Commissioner of State Tax & Ors.
The Calcutta High Court stayed the demand order confirming the payment reversal of the ITC due to the cancellation of the supplier's registration.
The bench of Justice Raja Basu Chowdhury has observed that the prima facie case was made by the petitioner/assessee, and there shall be a stay of the demand raised by the proper officer as is reflected in the order, subject to the petitioners' depositing 10% of the disputed tax amount with the GST authorities.
Citation: 2024 LiveLaw (Cal) 156
Case Title: M/S. B.B.M. Enterprises Vs State Of West Bengal And Ors.
The Calcutta High Court bench of Justice Sabyasachi Bhattacharyya has held that it is completely beyond the domain of the Chief Justice and/or his designate, sitting in jurisdiction under Section 11 of the Arbitration and Conciliation Act, 1996, to adjudicate even prima facie on the merits of an arguable issue involved in the matter, which would fall categorically within the domain of adjudication by the Arbitrator.
It held that all jurisdictional issues, including limitation, are to be decided by the Arbitrator. The bench held that even if there is a shade of doubt as to the issue of limitation, the Court sitting under Section 11 cannot decide the same conclusively and the matter has to be relegated to the Arbitrator.
Section 11 outlines the procedure for the appointment of arbitrators and the role of the Chief Justice or his designate in such appointments.
Citation: 2024 LiveLaw (Cal) 157
Case: M/s. Araha Hospitality Private Limited vs. Indian Railway Catering and Tourism Corporation Limited and others
The Calcutta High Court has declined a plea challenging a tender allotted by the Indian Railway Catering & Tourism Corporation (IRCTC). The plea challenged the allotment process on the ground that the allottee/successful bidder had been accused in the 'Rail Neer scam', and was being investigated by the Central Bureau of Investigation (CBI) for the same.
A single bench of Justice Shampa Sarkar held:
"The petitioner has not been able to satisfy that the action of the authority suffers from arbitrariness, perversity or favouritism. The court should not normally interfere with the policy of the tendering authority. If the petitioners or the court think that charges of corruption prior to three years should be a relevant factor in the decision making process, such opinion cannot be a reason for exercise of power of judicial review. When technically qualified and experienced people have formulated the terms and conditions of the tender, the court should not interfere because the court feels that a more stringent interpretation of the terms would be wiser, more logical or fair."
Citaiton: 2024 LiveLaw (Cal) 158
Case: Peng Yongxin@ Umesh Yonjan Vs. State of West Bengal
The Calcutta High Court Circuit Bench at Jalpaiguri has denied bail to a Chinese national who attempted to enter India using a fake Nepali passport and travel documents, posing as a Nepali citizen.
A single bench of Justice Subhenu Samanta upheld the order of the trial court and stated: Magistrate had taken cognizance of the offence on the basis of the charge sheet submitted by the police and refused to grant default bail. I find no illegality or irregularity in the impugned order passed by the Learned Magistrate. The Learned Magistrate has correctly taken cognizance of the offence on the strength of the charge sheet, and as the charge sheet has been submitted has been correctly refused the prayer for default bail.
Citation: 2024 LiveLaw (Cal) 159
Case Title: Vodafone Idea Limited Vs Comissioner Of Income Tax
The Calcutta High Court has held that the cellular mobile service providers are not obliged to deduct the tax at source (TDS) on income received by distributors/franchisees from customers.
The bench of Justice Surya Prakash Kesarwani and Justice Rajarshi Bharadwaj has relied on the decision of Supreme Court in the case of Bharti Cellular Limited Vs. Assistant Commissioner of Income Tax Circle-57, Kolkata and Anr. In Which It Was Held That The Assessees Would Not Be Under A Legal Obligation To Deduct Tax At Source On The Income/Profit Component In The Payments Received By The Distributors/Franchisees From The Third Parties/Customers, Or While Selling/Transferring The Pre-Paid Coupons Or Starter-Kits To The Distributors.
Citation: 2024 LiveLaw (Cal) 160
Case Title: Accuhealth Solutions Private Limited Versus The State of West Bengal & Ors.
The Calcutta High Court bench of Justice Shampa Sarkar has held that Accuhealth Solutions Private Limited indicated carelessness, lack of expertise and negligence in conducting the cancer marker test for the patient.
The bench held that the diagnostic centre did not possess the necessary capability to perform the test independently and had instead outsourced it to AI Diagnostics.
Citation: 2024 LiveLaw (Cal) 161
Case Title: Kotak Mahindra Bank Limited Vs Shalibhadra Cottrade Pvt. Ltd. And Ors.
The Calcutta High Court bench of Justice Sabyasachi Bhattacharyya has held that even a unilateral appointment of the arbitrator, without any further allegation of bias under Section 12(5) of the Arbitration and Conciliation Act, 1996, renders the Arbitrator ineligible.
The bench held that in addition to the grounds specifically mentioned in Section 12(5) read with the Seventh Schedule unilateral appointment of Arbitrator by one of the parties itself has also been brought under the purview of disqualification by ineligibility.
Citation: 2024 LiveLaw (Cal) 162
Case Title: M/s Zillion Infraprojects Pvt Ltd Vs Bridge and Roof Co India Ltd
The Calcutta High Court bench of Justice Sabyasachi Bhattacharyya has struck part of the arbitration clause as being violative of Article 14 of the Constitution. The clause prevented the subcontractor from participating in arbitration proceedings despite having to bear the expenses for its claims.
Further, it allowed the Indian Oil Corporation (IOCL) to unilaterally decide whether a dispute could be referred to arbitration, thus depriving the subcontractor of an independent right to raise disputes.
Case Title: Axis Bank Limited Versus Indian Cable Net Company Limited & Ors
Citation: 2024 LiveLaw (Cal) 163
The Calcutta High Court bench of Chief Justice T. S. Sivagnanam and Justice Hiranmay Bhattacharyya has held that Axis Bank does not perform public functions that would subject it to writ jurisdiction. It held that adherence to RBI guidelines by a private bank does not equate to the performance of public duties.
The bench held that: “the appellant bank carrying on the business or commercial activity of banking does not discharge any public function or public duty.”
2063 Crore Arbitral Award: Calcutta High Court Directs West Bengal Government, WBIDC To Pay Amount
Case Title: Government of West Bengal & Anr. Versus Essex Development Investments (Mauritius) Ltd.
Citation: 2024 LiveLaw (Cal) 164
The Calcutta High Court bench of Justice Krishna Rao has rejected the petition made under Section 36 of the Arbitration and Conciliation Act, 1996 by the West Bengal Government and West Bengal Industrial Development Corporation claiming fraud in making of the arbitral award. The bench noted that the arbitral tribunal arrived upon the findings after considering the materials placed before it and the submissions made by the respective parties.
Further, it noted that the arbitral tribunal recorded all the submissions of the parties in the award. Therefore, the bench dismissed the Section 34 petition.
The bench directed the West Bengal Government and West Bengal Industrial Development Corporation to deposit 100% of the awarded sum.
Case Title: K2V2 Hospitality Llp Vs Limton Electro Optics Pvt. Ltd. And Ors.
Citation: 2024 LiveLaw (Cal) 165
The Calcutta High Court bench of Justice Sabyasachi Bhattacharyya has held allowed composite reference of two companies to arbitration noting that the two arbitration agreement refer to the self-same demised property. Moreover, it noted that both the agreements were entered into by the same proposed lessee with two co-owners of the self-same property.
The bench held that: “if two different references were to be made, there would be ample scope of conflict of decision pertaining to the self-same subject matter between the co-owners of the self-same property.”
Case Title: Future Market Networks Ltd. Vs Laxmi Pat Surana & Anr
Citation: 2024 LiveLaw (Cal) 166
The Calcutta High Court bench of Justice Subhendu Samanta has held that the Supreme Court's observations regarding the interpretation of "three months" in Section 34(3) of the Arbitration and Conciliation Act, 1996 as 90 days in various cases were not the ratio decidendi but obiter dicta.
The bench held that the period of limitation must be computed based on calendar months, therefore, the period of limitation in Section 34(3) would be three months excluding the date of receipt of the arbitral award.
Case Title: The Incoda Vs The General Manager, Metro Railway And Anr.
Citation: 2024 LiveLaw (Cal) 167
The Calcutta High Court bench of Justice Sabyasachi Bhattacharyya has held that the invocation of arbitration after the period defined in the arbitration clause doesn't frustrate the intention of the parties to refer disputes to arbitration.
The bench held that the outer limit stipulated in the arbitration clause for invocation of arbitration if failed by the claimant, does not constitute a waiver or a deliberate relinquishment of the claim by the claimant.
Case: Tamoghna Ghosh Vs. The State of West Bengal & Ors
Citation: 2024 LiveLaw (Cal) 168
The Calcutta High Court has allowed a protest by the supporters of the Bharatiya Janata Party (BJP) outside the offices of the Calcutta Electricity Supply Corporation (CESC) at Victoria House in Kolkata over the alleged increase in electricity prices. The protestors had approached the court for permission to hold the rally after the Kolkata Police declined to allow the same.
A single bench of Justice Rajarshi Bharadwaj allowed the protest rally while laying down certain conditions and limiting the attendance to a maximum of 1,000 protestors. The Court took judicial notice of the fact that such protests held by other political parties at the very same venue had been allowed by the police and reiterated earlier decisions that there shall be a level playing field for all political parties in the state.
Case: Satyabrata Barik @ Mithu. Vs. The State of West Bengal & Anr
Citaiton: 2024 LiveLaw (Cal) 169
The Calcutta High Court has quashed a case of voyeurism and stalking against a man booked under Section 354C and D of the Indian Penal Code (IPC). The man was arrested by the police upon the complaint of a woman who had accused him of secretly taking pictures of her from his residence.
Justice Bibhas Ranjan De quashed the case initiated against the man upon observing that while photographing a woman doing private acts may amount to voyeruism, the act of stalking would require specifc elements to be proven.
Case Title: Gaurav Churiwal vs Concrete Developers LLP and Ors.
Citation: 2024 LiveLaw (Cal) 170
The Calcutta High Court single bench of Justice Sabyasachi Bhattacharyya held that an LLP and its partners cannot file separate appeals under Section 37 of the Arbitration and Conciliation Act by citing the principle of 'separate legal entity'. It was held that the principle of res judicata would apply to prevent the individual partners from raising the same issue under Section 37, if the previous appeal filed in the name of the LLP was dismissed.
Case Title: Vishal Jhajharia Versus The Assessment Unit, Income Tax Department Faceless Assessment Centre & Ors.
Citation: 2024 LiveLaw (Cal) 171
The Calcutta High Court has quashed the assessment order on the grounds that the department has failed to put the assessee on notice in respect of addition under Section 69A of the Income Tax.
The bench of Justice Raja Basu Chowdhury has observed that the determination made by the respondent-department as reflected in the assessment order stands vitiated by reasons of failure on the part of the department to put the petitioner on notice in respect of addition under Section 69A. Since the assessment order is violative of the principles of natural justice, it is unenforceable in law.
Case Title: Ashok Kumar Gupta Vs M.D. Creations And Ors.
Citation: 2024 LiveLaw (Cal) 172
The Calcutta High Court bench of Justice Sabyasachi Bhattacharyya has held that the court is empowered the court is empowered to extend an arbitrator's mandate even if a petition under Section 29-A of the Arbitration and Conciliation Act, 1996, is filed after the termination of the mandate.
Justice Bhattacharyya clarified that the absence of negative expressions in Section 29-A, which are present in other statutes to enforce strict timelines, indicates legislative intent to allow judicial discretion in extending mandates.
Case Title: Kotak Mahindra Bank Ltd. Vs Jaymony Debnath And Ors.
Citation: 2024 LiveLaw (Cal) 173
The Calcutta High Court bench of Justice Sabyasachi Bhattacharyya has held mere dismissal of the first execution application on the ground of default does not prevent the award-holder/decree-holder from filing a fresh execution petition.
The High Court held that the provisions of Rules 105 and 106 of Order 21 of the Code of Civil Procedure do not preclude the award-holder/decree-holder from filing a fresh execution case on the same cause of action after a dismissal for default. Unlike Order 9, there is no specific bar in Order 21 regarding execution cases. The bench noted that even Rule 4 of Order 9 allows for a fresh suit on the same cause of action if the previous suit was dismissed for default without the parties' presence.
Case Title: Oriental Insurance Company Limited Vs M/S. Sarada Rani Enterprises
Citation: 2024 LiveLaw (Cal) 174
The Calcutta High Court bench of Justice Sabyasachi Bhattacharyya has held that evidence which does not qualify as pleadings supported by due verification or affidavit cannot be equated with proof of a claim. It held that the arbitrator's reliance on such evidence was contrary to the fundamental policy of Indian law.
The bench further held that the arbitrator was not in a situation where an exact figure cannot be determined, and which would require a reasonable guesswork by the tribunal. Rather, it was a case where the tribunal arbitrarily granted an amount to the claimant without any material basis.
Case: Shashanka Maiti & Ors. v/s. The State of West Bengal
Citation: 2024 LiveLaw (Cal) 175
The Calcutta High Court has held that a trial court cannot issue a warrant of arrest without application of mind and justifying the same under the law.
A single bench of Justice Suvra Ghosh quashed the warrant of arrest against the petitioners, who were accused under inter alia Section 420 of the Indian Penal Code while observing that the trial court had issued the warrant of arrest against the petitioners mechanically without application of mind.
Case Title: Commissioner Of Service Tax versus G.S. Atwal & Co. Engineering Pvt Ltd.
Citation : 2024 LiveLaw (Cal) 176
The Calcutta High Court held that no service tax will be levied on activities such as cutting or mineral extraction which are part of mining operations, if mining operations are itself not subjected to service tax on the date of levy.
The High Court clarified that if the State seeking to recover tax, cannot bring the subject within the letter of law, then it goes without saying that the subject is free.
Case: Susmita Pandit Versus State of West Bengal & Another
Citation: 2024 LiveLaw (Cal) 177
The Calcutta High Court has recently held that sexual harassment charges under Section 354A of the Indian Penal Code (IPC) cannot be applied against women since the provision specifically begins with the term "a man."
A single bench of Justice Ajay Kumar Gupta perused the provision which begins, "[354A. Sexual harassment and punishment for sexual harassment--(1) A man committing any of the following acts--"
It was held that "it can be safely accepted that a female cannot be an accused under Section 354A of the IPC as is evident from very terminology as used in the said enactment. This offence is gender specific and only a male can be prosecuted under this offence. A female accused will not be covered under the mischief of this Section as a result of the specific words “a man” used in the Section 354A sub-sections (1), (2) and (3) of the IPC. Accordingly, the allegation of an offence punishable under Section 354A of IPC is not applicable against the present petitioner."
Case: Subhash Tiwari & Anr. Vs. The State of West Bengal & Anr
Citation: 2024 LiveLaw (Cal) 178
The Calcutta High Court has declined to quash a case initiated under the Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act, 1989, (SC/ST Act) against a man who allegedly insulted his son-in-law using casteist slurs in his locality when the complainant had gone to bring his wife back from her maternal home.
It was alleged that the accused said: “tum jaisa nich jat ke sath meri beti nehi jayegi...Bhumij log nich aur chhuddar hota hai," (my daughter will not go with a lower caste like you) in the confines of his home, while he physically assaulted the petitioner and said “tum log chhotta jat hai” (you people are lower caste) outside in his locality.
Case Title: The State Of West Bengal Vs Bijan Behari Chowdhury
Citation: 2024 LiveLaw (Cal) 179
The Calcutta High Court bench of Justice Sabyasachi Bhattacharyya has held that the arbitrator's decision to award compensation to the claimant for excess work and business loss, without sufficient evidence to support these claims, is perverse and contrary to the fundamental policy of Indian law.
The matter pertained to an arbitral award that granted monetary claims to the claimant. The Petitioner argued that the award lacked any reasoning and that the arbitrator despite framing certain issues failed to decide on any of them. It contended that the monetary amounts awarded were based on no material evidence. The Petitioner argued that the arbitrator's findings were unjustified as they were based solely on the Respondent not presenting independent evidence through oral witnesses or documentary evidence. The claimant, according to the Petitioner, must rely solely on its own evidence and materials to support its case. Therefore, the premise that the award was justified due to the Respondent failure to provide evidence was legally untenable.
Case Title: M/S. HOOGHLY BUILDING & INVESTMENT COMPANY LIMITED AND ANOTHER VERSUS THE STATE OF WEST BENGAL AND OTHERS
Citation: 2024 LiveLaw (Cal) 180
The Calcutta High Court division bench of Chief Justice T.S. Sivagnanam and Justice Hiranmay Bhattacharyya has held that once a property is designated as Waqf, it remains so indefinitely. It held that Mutawalli cannot enter into a lease of Waqf property without prior approval from the Waqf Board.
Therefore, the bench held that any agreements or understandings, whether written or oral, regarding the property are entirely unauthorized by law and void from the outset.
Case: Nandalal Verma Vs. The State of West Bengal & Ors.
Citation: 2024 LiveLaw (Cal) 181
The Calcutta High Court has held that in hire-purchase agreements where a bank repossesses a vehicle and re-sells it due to a default by the vehicle's registered owner, the bank cannot be compelled to re-issue the vehicle's certificate of registration under Section 51(5) of the Motor Vehicles Act (MV Act).
Case: Visa International Ltd. v Visa International Service Association & Anr.
Citation: 2024 LiveLaw (Cal) 182
The Calcutta High Court has held that associate managers appointed under Section 3(2) of the Trademarks Act cannot pass quasi-judicial orders since they were not empowered to do so by virtue of their appointment as contractual employees.
A single bench of Justice Krishna Rao held:
The Registrar dealing with an application under the Trade Marks Act is a quasi judicial and delegation of power under sub-section (2) of Section 3 is an administrative power and as such the Associate Managers appointed under sub-section 2 of Section 3 are not empowered to pass quasi judicial orders.
Case: Joyeeta Saha & Anr. -Vs- The State of West Bengal
Citation: 2024 LiveLaw (Cal) 183
The Calcutta High Court has recently quashed a case for abutment to suicide against a wife who was alleged of inducing her husband to commit suicide by failing to inform him of her previous marriage,
In quashing the charges against her, a single bench of Justice Ananya Bandopadhyay held:
Human psychology and mental state cannot be generally equated which varies from person to person. Egregious act on the part of a person from intractable emotions, depressions cannot be perceived or fathomed. One can be frenzied or hysterical even on minute and momentary disagreement resorting to extremities which cannot be termed as an instigation, inducement or abetment to commit suicide.
Case: Md. Abu Raihan Vs State of West Bengal & Ors.
Citation: 2024 LiveLaw (Cal) 184
The Calcutta High Court has directed that the benefit of child care benefit must be extended to both male and female employees and family responsibilities must be shared by the mother and the father.
In considering the case of a man who had two minor children and had lost his wife a few months ago, a single bench of Justice Amrita Sinha held:
"It appears that time has come when the Government should treat its employees equally without any discrimination between the male and the female employees. The responsibility of maintaining a family should be shared equally both by the mother and the father. Natural guardian of a Hindu minor under the Hindu Minority and Guardianship Act, 1956 in the case of a boy or an unmarried girl is the father and after him the mother. The Government should take a decision to extend similar benefit to the male employees as has been done in the case of the females...to erase discrimination."
Case Title: Sashreek Constructors Private Limited vs. Customs, Excise and Service Tax Appellate Tribunal
Citation :2024 LiveLaw (Cal) 185
Taking note of Section 35G of the Central Excise Act, the Calcutta High Court clarified that an appeal shall lie to the High Court from “every order” passed in appeal by the Appellate Tribunal, though the maintainability thereof would be dependent on certain statutory limitations.
As per Section 35G of Central Excise Act, 1944, an appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal on or after the 1st day of July, 2003 (not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment) if the High Court is satisfied that the case involves a substantial question of law.
Case Title: Pranabesh Sarkar versus Superintendent CGST & CX
Citation: 2024 LiveLaw (Cal) 186
While pointing out that the suspension/ revocation of license would be counterproductive and works against the interest of the revenue, the Calcutta High Court clarified that assessee in such a case would not be able to carry on his business in the sense that no invoice can be raised by the assessee and ultimately would impact recovery of tax.
Single Bench of Justice Raja Basu Chowdhury therefore set aside the order cancelling the registration of the assessee subject to the condition that the assessee files his returns for the entire period of default and pays requisite amount of tax and interest and fine and penalty, if not already paid.
Case Title: Commissioner Of Customs (Preventive), West Bengal Versus Bangari Bhola And Others
Citation: 2024 LiveLaw (Cal) 187
The Calcutta High Court has upheld the seizure and held that the Commissioner of Customs (Preventive), West Bengal, has jurisdiction over the whole of the States of West Bengal and Sikkim.
The bench of Chief Justice T.S. Sivagnanam and Justice Hiranmay Bhattacharyya has observed that if the Commissioner of Customs (Preventive), West Bengal, exercises jurisdiction over the whole of the States of West Bengal and Sikkim apart from the Union Territory of Andaman and Nicobar Islands, it cannot be said that merely because in Clause 10, the Principal Commissioner of Customs (Airport and Air Cargo Complex), Kolkata has been given jurisdiction over Netaji Subhas Chandra International Airport, that would denude the jurisdiction of the Commissioner of Customs (Preventive), West Bengal.
Case Title: Bhubaneshwari Seafood Private Limited And Anr. Vs Ugro Capital Limited
Citation: 2024 LiveLaw (Cal) 188
The Calcutta High Court bench of Justice Sabyasachi Bhattacharyya has held that SAMA, an Online Dispute Resolution (ODR) platform, is not an independent Dispute Redressal Institution duly recognized by the Government of India in Kolkata. Therefore, the bench held that party should approach the court for the appointment of an arbitrator in view of disagreement.
Case: Dr. Sandip Ghosh & Anr. Vs. Union of India & Ors
Citaiton: 2024 LiveLaw (Cal) 189
The Calcutta High Court has refused to issue an order restraining media outlets from broadcasting news about former RG Kar principal Dr Sandip Ghosh, in a plea by the ex-principal alleging 'media trial.'
A single bench of Justice Shampa Sarkar declined Ghosh's plea while cautioning the media to avoid 'animated dramatization' and publish objective news instead of subjective opinion. The court said:
"The media ensures that the individuals (members of civil society) participate in a matter of national importance. In this case, the incident has attained a status of global importance. Thus, right to information would be fundamental in this case, as each and every member of civil society is severely affected by the incident either directly or indirectly."
Case Title: M/S. Siemens Healthcare Private Limited Vs Sun Hospital And Ors.
Citation: 2024 LiveLaw (Cal) 190
The Calcutta High Court bench of Justice Sabyasachi Bhattacharyya has held that even if an application or appeal under the Arbitration and Conciliation Act, 1996 relating to a commercial dispute is filed on the Original Side of the High Court, the same can be heard and disposed by the Commercial Division of the High Court.
The bench held that:
“The language used in Section 10(2) is “shall”, which is mandatory and implies that even if an application is filed in the original Side of the High Court (without any distinction between Ordinary Original Civil Jurisdiction or Commercial Division), it would suffice if the same is heard and disposed of by the Commercial Division.”
Failure To Comply Provision Of Sec 75(4) Of CGST Act 2017 Vitiates Entire Order: Calcutta High Court
Case Title: Arup Mallick versus Commissioner, Commercial Taxes and State Tax, & Ors.
Citation: 2024 LiveLaw (Cal) 191
The Calcutta High Court held that failure to comply with statutory provision which mandates consideration of explanation on the part of assessee before passing adverse order, vitiates such order.
The High Court held so while considering that the petitioner was prevented from filing his response to the show cause notice, due to a reasonable cause.
Referring to Section 75(4) of the CGST/WBGST Act, 2017, Single Bench of Justice Raja Basu Chowdhury observed that “affording an opportunity of hearing is mandated where a request is received in writing from the person chargeable with tax, or penalty or where any adverse decision is contemplated against such person”.
Case Title: Damodar Valley Corporation Vs BLA Projects Pvt. Ltd.
Citation: 2024 LiveLaw (Cal) 192
The Calcutta High Court bench of Justice Sabyasachi Bhattacharyya has held that if an Arbitrator's judgment is well-reasoned and backed by substantial evidence, there are no grounds to challenge it under Section 34 of the Arbitration and Conciliation Act, 1996.
The matter pertained to a dispute between BLA Projects Private Limited (the claimant/respondent) and Damodar Valley Corporation (DVC) (the petitioner). In the arbitration proceedings, BLA Projects claimed under seven heads, of which four claims were granted by the arbitrator. DVC's counterclaims on two counts were dismissed. Feeling aggrieved, the Petitioner approached the High Court and filed a challenge under Section 34 of the Arbitration and Conciliation 1996.
Case Title: Vishambhar Saran -Vs.- Bureau Of Immigration & Ors.
Citation: 2024 LiveLaw (Cal) 193
The Calcutta High Court bench of Justice Shampa Sarkar has held that mere apprehension that a person would flee India and no steps could be taken to recover the money is not enough to issue a Look Out Circular (LOC) against him.
The matter pertained to a writ petition which was filed by an erstwhile Director of Visa Power Limited ("company in liquidation"). The Petitioner argued that he was never a whole-time director of the company, which is undergoing liquidation following an order issued by the National Company Law Tribunal (NCLT) in Kolkata. The company obtained credit facilities from a consortium of banks, with Punjab National Bank (PNB) as the lead bank. This credit was intended for setting up a thermal power project in Raigarh district, Chhattisgarh, sanctioned around March 2010. However, due to the Supreme Court's decision canceling coal blocks, the thermal plant could not be established and operationalized thwarting the project's goal to supply power to contractors given coal block allocations.
Case: Mayukh Biswas vs State of West Bengal
Citation: 2024 LiveLaw (Cal) 194
The Calcutta High Court has set aside a state government order banning supporters of Mohun Bagan Football Club from entering the Salt Lake Stadium with a large 'tifo' protesting the rape and murder of a trainee doctor at RG Kar Medical College and Hospital, during their team's match.
A division bench of Justices Harish Tandon and Hiranmay Bhattacharya held:
These activities are acclaimed as the sports activities of enjoyment and amusement but also inculcating a sense of discipline and, therefore, the supporters by using 'TIFO' are more responsive and used it for showing support to the team or its members to encourage them in order to achieve the desired result as expected by the said supporters. 'TIFO' means a flag or picture held up by the supporters of a team in a football match and, therefore, those displays are made for a short period of time or at intervals. Obviously, the viewers while using those 'TIFO' are conscious of their fellow viewers and, therefore, there should not be an apprehension of the State in this respect.
Case Title: Dr. Partha Biswas Vs. The State of West Bengal & Ors
Citation: 2024 LiveLaw (Cal) 195
The Calcutta High Court bench of Justice Rajarshi Bharadwaj has held that if a gathering is not intended for unlawful purposes, it should not be restricted at a public place unless there is an imminent threat to public order. Even in such situations, the High Court held that any restrictions imposed must be fair and reasonable with a balance between individual rights and public safety.
Dr. Partha Biswas (Petitioner), who serves as the Chief Coordinator of Mission Abhaya, a philanthropic organization, sought permission to hold a peaceful solidarity rally on August 28, 2024 at 2:00 P.M. The planned route of the rally is from College Square passing through Bidahan Sarani, and concluding at OP Bhandar Bus Stop near Shyambazar Five Points Crossing. However, the Joint Commissioner of Police (HQ), Kolkata, refused to grant permission for the event. Consequently, the Petitioner requested a directive from the High Court to compel the Joint Commissioner to approve the rally.
Case: Sanjoy Das v Registrar General, Calcutta High Court
Citation: 2024 LiveLaw (Cal) 196
The Calcutta High Court has dismissed a PIL seeking to modify a judge's roster due to allegations of conflict of interest, with exemplary costs of Rs 50,000. The Court also debarred the litigant from filing a PIL ever again, by invoking the Calcutta High Court Appellate Side Rules.
Advocate Sanjoy Das, the petitioner, sought to change the determination of Justice Amrita Sinha's bench hearing matters of police inaction, by claiming that since the West Bengal CID was investigating Justice Sinha's husband for allegedly using his spouse's office to influence a probe, her determination over police matters would not inspire public confidence in the judicial system.
In dismissing the plea as an "attempt to intimidate the office of the Chief Justice", a division bench of Chief Justice TS Sivagnanam and Justice Hiranmay Bhattacharya stated:
"It has been conclusively held that the right of the CJ in finalising the determination cannot be tinkered by a petitioner, and more particularly by an advocate practising before this court. The advice to look at the legal provisions fell on deaf ears. Therefore this writ petition is a clear abuse of process, and probably an attempt to intimidate the court, and to directly interfere with the jurisdiction of the Chief Justice."
Case: Sanjoy Das v State of West Bengal
Citation: 2024 LiveLaw (Cal) 197
The Calcutta High Court has dismissed a PIL filed by Sanjoy Das, challenging a 12-hour Bandh called by the BJP, due to alleged police action against protestors who were marching to the State secretariat in 'Nabanna' to demand justice for the RG Kar rape-murder victim
Police deployed tear gas and water cannons when the crowd became unruly and began breaking barricades and throwing stones at them.
A division bench of Chief Justice TS Sivgananam and Justice Hiranmay Bhattacharya observed that the litigant, Das, had been debarred from filing PILs in the previous matter, where he had challenged the roster allotted to a judge by the Chief Justice.
State Orders Impacting Individual Rights Require Separate Legal Remedies: Calcutta High Court
Case Title: Suklal Singh & Anr. -Vs. The State of West Bengal & Ors.
Citation: 2024 LiveLaw (Cal) 198
The Calcutta High Court division bench of Justice Harish Tandon and Justice Hiranmay Bhattacharyya has held that when a State authority's order is alleged to have impacted individual rights, each individual must pursue their legal remedy independently, and collective action in such cases is neither permissible nor maintainable.
Suklal Singh & Anr, Petitioners, two individuals, filed a writ petition challenging an order passed by the second respondent, Sub Divisional Officer and Sub Divisional Magistrate under Section 10 of the West Bengal Highways Act, 1964. The matter previously came before a Co-ordinate Bench of the High Court through a similar petition filed by others. The Co-ordinate Bench, by an order, directed the second respondent to consider the Petitioners' case as outlined in the decision. Following this direction, the second respondent reviewed the issue and issued the impugned order declaring the Petitioners and others as encroachers on public land and ordering the recovery of possession from them.
Case Title: Sajarul Rahaman And Anr vs Srei Equipment Finance Limited And Anr and Connected Matters
Citation: 2024 LiveLaw (Cal) 199
The Calcutta High Court bench of Justice Sabyasachi Bhattacharyya has held that the principal application under Section 34 of the Arbitration and Conciliation Act, 1996, challenging an arbitral award, falls under Entry No. 2(c) of Schedule II of the Court Fees Act. This entry is the residuary provision that prescribes a court fee of Rs. 120 for original applications before the High Court, where no other specific provision in Schedule II applies.
The bench clarified that Entry No. 1(10) of the Court Fees Act, which prescribes higher fees for applications seeking a direction for filing an award, an order for filing an agreement, or for enforcing foreign awards, does not extend to principal applications under Section 34.