Calcutta High Court Monthly Digest: January 2024

The Calcutta High Court has come to the aid of a CISF Constable who had been prematurely retired by the Senior Commandant of his unit/DIG for refusing transfers to locations away from Kolkata, with leave of the High Court, to stay with his daughter who has special needs.

In allowing the petitioner to place his case before the Review Board for reconsideration of his order of premature retirement, a single bench of Justice Raja Basu Chowdhury held:

I permit the petitioner to make a representation before the review committee. In the event the review succeeds then all consequential terminal benefits be made available to the petitioner by treating the petitioner to be in notional service till the date of normal superannuation. Needless to note that the aforesaid direction is being passed in the peculiar facts of the case. The above decision must be taken by the review committee within a period of six weeks from the date of making the representation along with the communication of this order, having due regard to the orders passed by the coordinate bench of this Hon'ble Court, and the special situation encountered by the petitioner on account of his specially abled child.

Calcutta High Court Lays Down Guidelines For Suvendu Adhikari's Visit To Pay Homage To Martyrs Of The '2011 Netai Massacre'

Citation: 2024 LiveLaw (Cal) 8

Case: Tufan Mahata Versus The State of West Bengal & Ors.

The Calcutta High Court has laid down guidelines for Leader of Opposition Suvendu Adhikari's visit to Netai village in order to pay homage to those who lost their lives in the 2011 Netai massacre.

The Court issued these guidelines in a plea seeking directions on the State authorities to allow the LOP and his associates to visit the village and to garland the Shahid Bedi on 7th January 2024.

A single bench of Justice Jay Sengupta held:

The petitioner and the Leader of Opposition, along with the security personnel only, shall be entitled to visit the place for garlanding at the Shahid Bedi and paying homage to the victims on that date between 5 PM and 6 PM. The Administration shall make adequate arrangements by deputing armed personnel so that no untoward incident can take place. It is clarified that taking into consideration the gravity of the occasion, on either dates none of the parties would make it a political issue or indulge in slogan shouting or give political speeches or commit other similar acts.

Calcutta High Court Imposes 10K Costs On Man Who Claimed His Wife Had Gone Missing After 'Dumping' Her & Their Child At Her Parents' House

Citation: 2024 LiveLaw (Cal) 9

Case: Bapan Mondal -versus The State of West Bengal & Ors.

The Calcutta High Court has imposed a cost of Rs 10,000 on a man who claimed that his wife had gone missing and was having an illicit affair after himself 'dumping her' and their minor child at his in-laws' house.

A single bench of Justice Jay Sengupta held:

The categorical stand taken by the petitioner in the writ petition and before the police authorities about going missing of his wife is in direct contradiction with the information that is being provided today. The difference becomes more stark when read in the light of the report filed by the State. The petitioner cannot feign ignorance about the actual facts and yet, try to set criminal law in motion with a distorted version. The petitioner is not coming with clean hands. This Court finds no merit in this application. Accordingly, the writ petition is dismissed with a cost of Rs.10,000/-

Calcutta High Court Declines Swiss Citizen's Plea Against Adoption Agency Which Failed To Preserve His Adoption Records From 1988

Citation: 2024 LiveLaw (Cal) 10

Case: Fabian Ricklin, alias Ranabir Vs. State of West Bengal & Ors.

The Calcutta High Court has dismissed a writ petition by a Swiss citizen, who was adopted in the year 1988, against the Specialised Adoption Agency through which he was given for adoption.

Petitioner argued that after coming of age, he began a 'search for his roots' and wanted to retrace his pre-adoptive links, but due to the failure of the respondent authorities to preserve its records

In dismissing his plea upon holding that the petitioner did not have any penal action or claim for damages against the respondent authorities, a single bench of Justice Sabyasachi Bhattacharya held:

In the absence of any strict legal obligation on the adoption agency to retain such surrender deed, particularly for so long, no penal action or direction can be passed against the respondent no. 5 with regard to the admitted absence of the document with it. Hence, the petitioner does not have a remedy either in damages or in penal action against the Specialised Adoption Agency insofar as the non-preservation of the surrender deed is concerned. Hence, the remedy sought in the present writ petition cannot be granted, particularly in view of the delay of almost two decades by the petitioner to come up with the present search after attaining majority.

EOU Procuring Excise Duty Tea From Manufacturer Entitled For Drawback: Calcutta High Court

Case Title: M/s. Narendra Tea Company Private Limited Vs Union of India & Ors.

Citation: 2024 LiveLaw (Cal) 11

The Calcutta High Court has held that 100% Export Oriented Unit (EOU) which has procured bulk tea from the manufacturer and excise duty is entitled to avail the benefit of drawback.

The bench of Justice Md. Nizamuddin has observed that the petitioner has procured excise duty-paid tea in respect of the subject shipping bills. The sample invoices and shipping bills clearly show duty was paid on procurement by the petitioner. Under such circumstances, there could be no reason to deny a drawback to the petitioner, which is an EOU.

The Calcutta High Court on Thursday questioned the bonafide research of a petitioner who had filed a PIL challenging the attacks on members of the Enforcement Directorate who had gone to conduct raids in West Bengal's Sandeshkhali and Bongaon.

A division bench of Chief Justice TS Sivagnanam and Justice Supratim Bhattacharya dismissed the plea and held:

"This plea seeks an investigation by the NIA or CBI into an incident at Sandeshkhali. The annexures are nothing but newspaper reports. The petitioner who is a practising advocate, appears to have not done any research. Based upon newspaper reports, without any research by the petitioner, a writ petition cannot be entertained at this juncture. The matter concerns an attack upon ED officials, and the petitioner is not advised as to what the said central agency has to do, as they have all the expertise to handle this situation. Therefore we are not inclined to entertain the matter as a PIL. Dismissed."

The Calcutta High Court has recently held that the right of a person under Article 21 to live a life of dignity cannot be deprived merely because he was convicted.

A single-bench of Justice Sabyasachi Bhattacharya directed the Sentence Review Board (SSRB) to reconsider the plea for premature release of the convict filed by his wife (petitioner) and held:

"The right of the petitioner under Article 21 to live a life of dignity cannot be deprived merely because the petitioner was convicted. The life behind bars has already been undergone by the petitioner for a considerable period. There cannot be any double punishment on the petitioner by refusing the petitioner an opportunity to reintegrate in mainstream society even if the petitioner is otherwise eligible."

NDPS Act | Calcutta High Court Upholds Arrest Warrant Against UAE Resident Who Facilitated Delivery Of MDMA, LSD Through 'Dark Web'

Citation: 2024 LiveLaw (Cal) 15

Case: Saran Gopal Krishnan Vs Narcotics Control Bureau, Kolkata.

The Calcutta High Court has recently upheld warrants of arrest and proclamation & attachment issued in an NDPS case against the petitioner, who hailed from Kerala but was residing in the UAE for employment.

Petitioner was alleged to have caused the delivery of MDMA and LSD blots to his associates in Calcutta, through co-accused over the dark web in 2017.

A single-bench of Justice Shampa Dutt (Paul) dismissed the petitioner's revision plea, and held:

Petitioner [caused] delivery of MDMA, LSD from one of his darkweb vendor of drugs available at Nashik and the vendor at Nashik further shipped the consignment to Calcutta through DTDC Courier service. Another accused confessed that on the directions of the petitioner, he shipped drugs to Kolkata. He further stated that he and the petitioner used to communicate through encrypted chat of darkweb, and petitioner used to send money through “BITCOIN.” In such circumstances, the Court will have to consider the gravity of the offences and role played by the Accused. Any indulgence shown in such cases considering the conduct, would clearly amount to an abuse of process of law.

Merely Being A Member Of Haj Committee Doesn't Confer Knowledge In Shia Islamic Theology: Calcutta HC Quashes Appointment To WB Waqf Board

Citation: 2024 LiveLaw (Cal) 16

Case: Professor Syed Haider Hassan Kazimi and others v The State of West Bengal and another

The Calcutta High Court has quashed an order passed by the Secretary, Government of West Bengal, Minority Affairs, and Madrasah Education Department for the nomination of the respondent as a member of the Waqf Board upon finding that the respondent was not suitably qualified to occupy the post.

A single bench of Justice Sabyasachi Bhattacharya also directed the State to undertake a fresh nomination process for the selection of another member to fill up the vacant post in conformity with the Wakf Act, 1995.

It held: Not a single sentence discloses how respondent no. 2 qualifies as a recognized scholar from any perspective, let alone adverting to such scholasticism in Islamic Theology. Merely being the member of a Haj Committee appointed by the State or the nazir or mutawalli of a waqf estate does not, in any manner whatsoever, confer any proficiency on a person within the contemplation of scholasticism or scholarship in Shia Islamic theology, although it may indicate that the person is favoured by or is close to the State administration.

Calcutta High Court Allows Live Broadcast Of Ram Mandir Inauguration, Performance Of 'Puja Archana,' 'Arati' & 'Kirtan' In South Kolkata Park

Citation: 2024 LiveLaw (Cal) 17

Case: Kalighat Bahumukhi Seva Samiti Versus The State of West Bengal and others

The Calcutta High Court has allowed a plea moved by the Kalighat Bahumukhi Seva Samiti to hold a live telecast of the inauguration of the Ram Mandir in Ayodhya and to perform puja by constructing a temporary stage at Deshpran Sasmal Park, Kolkata on 22nd January.

A single bench of Justice Jay Sengupta held:

It appears that at least the venue of the programme being the Deshpran Sasmal Park could be agreed upon by the parties. The petitioner is, therefore, permitted to hold the function on 22nd January, 2024 from 9 am to 6 pm on a portion (roughly, half) of the Deshpran Sasmal Park. The number of participants in the programme shall not exceed 60(sixty). The Police Authorities shall render necessary help, if required. The petitioner shall abide by the necessary norms regarding the use of the sound equipments and other prevailing laws.

Calcutta High Court Allows 'Sampriti All-Religion Harmony Rally' To Be Held In Kolkata On Same Day As Ram Mandir Inauguration

Citation: 2024 LiveLaw (Cal) 18

Case: Suvendu Adhikari v State of WB

The Calcutta High Court dismissed a plea challenging the 'Sampriti All-Religion Harmony Rally' which is proposed to be held in Kolkata by the State government and the ruling political party, on the same date as the consecration of the Ram Mandir in Ayodhya i.e. 22nd January 2024.

In disposing of the plea moved by BJP MP and Leader of Opposition in West Bengal Suvendu Adhikari, a division bench of Chief Justice TS Sivagnanam and Justice Hiranmay Bhattacharya held:

Several pleas have been filed by the writ petitioner himself seeking to hold rallies. In our view, so far as the rally to be organised in Kolkata on 22nd January, the route has also been mentioned. Undoubtedly such a rally will disrupt the normal flow of traffic and cause inconvenience. It is the duty of the state to ensure that the common public is not affected on account of this rally since 22nd Jan which is a working day. No speech shall be made hurting the sentiments of people belonging to a religion or any sect. All participants of the rally shall be sensitised. If any violation occurs, the organisers may be held responsible.

Income From Sub-Letting Is 'Business Income' If Object Is Business Of Renting/Licensing Of Shops: Calcutta High Court

Citation: 2024 LiveLaw (Cal) 19

Case Title: Oberoi Building & Investment (P) Limited verses CIT and Another

Finding that assessee's income from sub-letting/sub-licensing the space in question, has always been accepted by Respondent / Income Tax Department as, income from business, the Calcutta High Court held that assessee's income from sub-licensing/sub-letting is chargeable to tax as business income and not as income from house property.

The Division Bench comprising of Justice Surya Prakash Kesarwani and Justice Rajarshi Bharadwaj observed that “Since the object of the assesse company and its activity is the business of renting/licencing/sub-licencing shops etc. and it derived income mainly from the aforesaid business activity, therefore, the income from contribution/sub-licencing derived by the assesse is business income and not income from house property”.

High Court Dismisses Plea Seeking Declaration Of 'Dry Day' In West Bengal On 22nd January On Account Of Ram Mandir Consecration Ceremony

Citation: 2024 LiveLaw (Cal) 20

Case: NAZIA ELAHI KHAN VS STATE OF WEST BENGAL AND ANR

The Calcutta High Court dismissed a public interest litigation seeking the declaration of a 'dry day' in the State of West Bengal on the 22nd of January on account of the consecration ceremony of the Ram Mandir in Ayodhya.

In dismissing the plea, a division bench of Chief Justice TS Sivagnanam and Justice Hiranmay Bhattacharya observed:

"This a policy decision. You will have to challenge the enactments which allow for [liqour] licensing. Actually, there is a prohibition. It is not free, anyone cannot manufacture. A beverage corporation is there, and the trade is regulated by way of an enactment under the Excise Act. Unless those provisions are challenged, we cannot do anything."

Calcutta High Court Sets Aside Trial Court Order Directing Personal Appearance Of Former Visva Bharati University VC In Case Under SC/ST Act

Citation: 2024 LiveLaw (Cal) 21

Case: Professor Bidyut Chakraborty Versus The State of West Bengal & Anr.

The Calcutta High Court has set aside an order passed by a Special Court under the Atrocity Act, 1st Court, Suri, calling for the personal appearance of former Visva Bharati University Vice-Chancellor Professor Vidyut Chakraborty in a case against him under Section 500 of IPC (defamation) read with Sections 3(1)(r)(v)(p)(s) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989.

In setting aside the trial court's order calling for personal appearance, a single bench of Justice Ajay Kumar Gupta, held:

The petitioner herein has filed an application under Section 205 of the Code of Criminal Procedure on 07.10.2023 praying for exemption of personal appearance. In the light of the above discussions, this Court does not have any other option but to set aside the impugned order. The learned Trial Court is directed to hear the parties and dispose of the application under Section 205 of the CrPC in accordance with law without insisting upon physical appearance of the petitioner before the Ld. Trial Court.

Assessee Attempted To Drag Matter Knowing Well That Assessment Will Be Time Barred: Calcutta High Court Upholds Reassessment

Citation: 2024 LiveLaw (Cal) 22

Case Title: Champa Impex Private Limited Versus Union Of India And Others

The Calcutta High Court has held that the assessee had repeatedly sought adjournments, which would show that the assessee attempted to drag the matter along, knowing well that the assessment would be time-barred.

The bench of Chief Justice T.S. Sivagnanam and Justice Supratim Bhattacharya have observed that the provision of Section 148A of the Act has been scrupulously followed by the assessing officer, and there is no error in the decision-making process of the court to interfere.

A single bench of Justice Moushumi Bhattacharya while dismissing a plea for appointment of an arbitrator under Section 11 of the Arbitration & Conciliation Act, 1996, held:

Section 11 of the 1996 Act is one of the earlier interventions by a Court on the presumption of the existence of an arbitration clause. The Court must hence ensure the existence of an arbitration agreement before flagging of the road to the award and beyond. The parties cannot set forth on the procedural journey if there is no arbitration agreement. In the present case, the arbitration agreement muddies the waters with regard to the immediate and unequivocal reference of the dispute to arbitration. The word “may” in the relevant part of the clause gives an option to the parties to either refer the dispute to arbitration or hold back on the arbitration. The word “may” makes the clause conditional on a future event/s or to the other parts of the clause and gives the parties the option to resile from the clause.

Violates Right To Life & Amounts To Ostracisation: Calcutta HC Sets Aside 'Frivolous' Excommunication From Agrahari Sikh Community, Imposes ₹1.5 Lakh Cost

Citation: 2024 LiveLaw (Cal) 25

Case: Sardar Lalu Singh v The State of West Bengal and others

The Calcutta High Court has set aside an order of excommunication by the 'Gurudwara Chhota Singh Sangat,' against the petitioner, excommunicating him from the entire Agrahari Sikh community due to an alleged matrimonial dispute between the petitioner's son and his wife.

In setting aside the order of excommunication and directing the respondent office-bearers to pay costs of Rs 1.5 lakhs to the petitioner due to the harassment suffered by him, a single bench of Justice Sabyasachi Bhattacharya held:

Excommunication from an entire community, not pertaining to religious persecution alone but also the social life and relations of the petitioner is such a stringent action, which touches the normal life of a person and the right to live with dignity. Petitioner [cannot] be held responsible for a dispute between his son and his daughter-in-law. Even if there is such a dispute, the same cannot castigate either of the parties to the said dispute, more so at the behest of a Gurudwara. For such innocuous reason, the extreme step of social, religious and economic excommunication unleashed on the petitioner is palpably violative of Article 21 of the Constitution.

Payment To Third Party Instead Of Selling Dealer, ITC Not Allowable: Calcutta High Court

Citation: 2024 LiveLaw (Cal) 26

Case Title: Pacharia Exports Private Limited Vs. The Special Commissioner, Commercial Taxes, West Bengal & Ors.

The Calcutta High Court has held that the writ petitioner is not entitled to the benefit of input tax credit as he has not paid the amount to the selling dealer but to a third party.

The bench of Chief Justice T.S. Sivagnanam and Justice Supratim Bhattacharya has observed that the writ petitioner is precluded from adding words to a statute to state that he will be entitled to the benefit of the input tax credit, though he has not paid the amount to the selling dealer to a third party based on certain instructions.

Madhyamik Exams 2024 | Calcutta HC Declines Plea Challenging Revised Exam Timings, Directs State & Secondary Examination Board To Ensure Students' Convenience

Citation: 2024 LiveLaw (Cal) 27

Case: Ranaghat OBR Brihattara Graduate Teachers' Association -Vs- The State of West Bengal & Ors

The Calcutta High Court has declined a plea by an association of teachers challenging a decision of the West Bengal Board of Secondary Education (WBBSE) whereby the timing of the ensuing Madhyamik Pariksha (SE) 2024 had been rescheduled from 11.45 am-3 pm to 9:45 a.m- 1 p.m.

While observing that the decision of the WBBSE, which was communicated only 2 weeks before the commencement of the exams could have been notified in advance, a single bench of Justice Biswajit Basu directed the State to ensure that all possible assistance was provided to the exam-taking students and laid down guidelines for the same.

It held: The Board should have announced the rescheduled timing much earlier than just two weeks before the examination and thereby has made the situation irreversible. This Court, for the said reason only is not interfering with the decision of the Board to reschedule the timing of the examination. However, the Board and the State Administration must ensure that the students shall not face any difficulty in taking up the said examination.

Freedom Of Press Indespensible To Democracy, Must Be Protected From Intimidation: Calcutta HC Allows Anticipatory Bail To ABP Ananda Journalist

Citation: 2024 LiveLaw (Cal) 28

Case: In the matter of : Ranjit Das @ Mohan Das

The Calcutta High Court has recently allowed a plea for anticipatory bail moved by a journalist working with ABP Ananda News, who was allegedly falsely implicated in criminal cases after having taken videos of illegal sand mining.

A division bench of Justice Debangshu Basak and Justice Shabbar Rashidi held:

Petitioner claims that he recorded illegal sand mining activities in pursuit of his journalist endeavours. There is an issue of false implication arising out of his journalistic work Freedom of press is indespensible to democracy. Freedom of press can be maintained by ringfencing the press from intimidation. A journalist is part of the press. His freedom to execute his journalistic endeavours needs to be protected. In such circumstances, we grant anticipatory bail to the petitioner.