Calcutta High Court Half-Yearly Digest: January 2024 To June 2024 [Citations 1-152]

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.

[S.125 CrPC] Maintenance Provisions Being Welfare Legislation Need Not Be Construed To Be Proven Beyond Reasonable Doubt: Calcutta High Court

Case: Paresh Chandra Ganguly (represented by LRs) v CBI

Citation: 2024 LiveLaw (Cal) 32

The Calcutta High Court has recently held that the provisions for maintenance under Section 125 of the CrPC are welfare legislations and that they need not be proven beyond reasonable doubt as their criminal law counterparts.

In refusing to quash a claim for maintenance against the petitioner, a single bench of Justice Ajoy Kumar Mukherjee held:

Conduct of wife/opposite party during her stay at her matrimonial house may not be the sole parameter to be considered before granting maintenance under 125 Cr.P.C. Said provision being a welfare legislation is not supposed to be construed what is likely to be construed to prove a case beyond reasonable doubt under section 498A I.P.C. or Under Section 406 of the IPC. I find that this is not a fit case where invoking jurisdiction under section 482 of the Code of Criminal procedure the present proceeding, can be quashed on the basis of the judgment passed in favour of the petitioner wherein criminal proceeding under section 498A/406/34 was quashed.

Misdirected Police Investigation: Calcutta HC Directs CID To Probe Death Of Wife Burnt Alive While Husband Showed Ordeal To Her Relative On Video Call

Citation: 2024 LiveLaw (Cal) 33

Case: Nilanjan Mitra v The State of West Bengal & Ors.

The Calcutta High Court on Wednesday took note of an unfortunate incident involving a husband, who video-called his wife's relative to show the sight of his wife burning to death, instead of intervening or saving her.

In observing that the police had fallen short in their investigation, a single bench of Justice Jay Sengupta transferred the investigation to the CID and held:

It appears that the call went on for at least one minute. If a person catches fire and her husband is in a position to save her, but chooses not to do so and do something else, it has to be explored whether this amounts to contributing to the death of the victim. At least, this circumstance should have inspired the Investigating Officer to find out whether the fire could have also been caused by the husband. These aspects have been given a total go-bye by the Investigating Officer. Non-seizure of relevant articles is another issue that cannot be satisfactorily explained by the Investigating Officer. In fact, he relies on the statement of the accused to provide an explanation. The investigations appears to have been totally misdirected.

"Misplaced Sympathy": Calcutta HC Sets Aside Direction For Fresh Viva & Aptitude Test Of TET Candidate Who Failed To Attend Due To Father's Illness

Citation: 2024 LiveLaw (Cal) 34

Case: Case: West Bengal Board of Primary Education & ors.- Versus - Md. Rafique & anr.

The Calcutta High Court has recently set aside the order of a single bench, which directed the West Bengal Board of Primary Education (Board) to conduct a fresh viva voce and aptitude test for a TET candidate, who was not able to appear for the same due to serious ailments suffered by his father.

A division bench of Justices Tapabrata Chakraborty and Partha Sarathi Sen held:

In the said conspectus and on humanitarian ground the appellants cannot be asked to conduct viva voce and the aptitude test afresh for the respondent no.1. Such direction would open a floodgate and may also affect the right of the candidates, who had already completed the viva voce and the aptitude test. We are of the opinion that the direction upon the Board to hold a arrange for viva voce and personality test/aptitude test afresh for the respondent no.1 would stand out to be an instance of misplaced sympathy. For the reasons discussed above, the order dated 26th September, 2023 passed in the writ petition being WPA 13347 of 2023, is set aside and the writ petition is dismissed.

Bar Association Elections | Calcutta High Court Intervenes In Plea Raising Concerns On Possibility Of Individual Votes Being Traced Back To Voters

Citation: 2024 LiveLaw (Cal) 35

Case: ANIMESH BHATTACHARYA v THE BAR ASSOCIATION HIGH COURT AT CALCUTTA AND ORS.

The Calcutta High Court intervened in a plea regarding the High Court Bar Association Elections, which were held recently. The plea alleged that while casting votes, members of the Bar association discovered that the serial number of the voter was depicted in the ballot paper, along with the name of the candidates.

In intervening to ensure secrecy was maintained in the voting process, a single bench of Justice Sabyasachi Bhattacharya directed the Election officer to deposit all ballot books to the Registrar General's office till further orders, immediately upon conclusion of the process, and held:

Election Officer is directed to take in his custody all the ballot books from which the ballot papers have been torn out for the purpose of the present ongoing election, which carry signatures of the individual voters along with the serial numbers, and retain the same with him in sealed cover/box. The said sealed box/cover containing the said counter foils of the ballot books, containing signatures of the voters against the serial nos. of the ballot papers, shall be deposited by the Election Officer to the Registrar General of this Court at the end of the election process, immediately after the completion of the polling process today, preferably by 7 p.m. this evening.

Limited Judicial Intervention U/s 8 And 11 Of Arbitration Act, Presumption In Favor Of Arbitration: Calcutta High Court

Citation: 2024 LiveLaw (Cal) 36

Case Title: Suresh Dhanuka vs Shahnaz Husain

The Calcutta High Court bench comprising Justice Krishna Rao held that while interpreting the arbitration agreements, the courts should have a presumption in favour of arbitration of the dispute and the court could only interfere if the party shows prima facie non-existence of valid arbitration agreement. It held that Sections 8 and 11 of the Arbitration and Conciliation Act, 1986 give the arbitrator or the tribunal the primary authority to determine the questions of non-arbitrability of the disputes. Further, it held that Section 16 confers significant powers upon the tribunal to determine any objections concerning the existence or validity of the arbitration agreement.

The Calcutta High Court has directed the insurance company to pay an additional compensation of Rs 40,08,687 at 6% per annum, to the relatives of a man who was killed after being thrown from the front gate of a bus he had boarded, due to the rash and negligent driving of the bus driver.

In allowing the appeal against the order of the Motor Accidents Claim Tribunal ("MACT") which had awarded a sum of approx 3.68 lakhs of compensation, due to the alleged contributory negligence of the deceased, a single bench of Justice Subhendu Samanta held:

The learned tribunal has not considered the evidences on record but has proceeded hypothetically and assessed the contributory negligence on the part of the deceased. The investigation of the police is ended in charge sheet accusing the driver of the offending vehicle to be 6 responsible for the accident. Charge-sheet is prima-facie evidence which can be disbelieved. Only on the version of the FIR, the observation of the learned tribunal, appears to me not justified and beyond the evidence on record.

Reasonable Measure To Avoid Chaos In Office Hours: HC Upholds Restriction On Non-Essential Heavy/Medium Goods Vehicles' Movement In Kolkata Between 6am-10pm

Citation: 2024 LiveLaw (Cal) 38

Case: Merlin Projects Limited and another v The State of West Bengal and others

The Calcutta High Court has recently upheld the validity of a Traffic Notification that restricted the movements of Heavy Goods Vehicles and Medium Goods Vehicles have been restricted to ply from 6 am to 10 am on all days throughout the city of Kolkata except the Port area.

The notification however, made certain exceptions for goods vehicles carrying essential and perishable items such as LPG, Petroleum, Oxygen, Milk, Fruits, Vegetables, etc., which were allowed to ply from 10 pm-8 am and 12 pm-4 pm.

In dismissing a challenge to the notification by real-estate developer Merlin Projects Ltd., a single bench of Justice Sabyasachi Bhattacharya held:

Restrictions imposed by the Notification are not disproportionate. The stipulations introduced by the Notification are quite appropriate and necessary to ensure free movement of traffic and in order to avoid chaos during office hours.

E-Way Bill Generated For Exporting Goods To Bangladesh Expired Due To Accident: Calcutta High Court Quashes 200% Penalty

Citation: 2024 LiveLaw (Cal) 39

Case Title: M/S Saraf Trexim Limited Vs Deputy Commissioner Of State Tax And Ors.

The Calcutta High Court has quashed the 200% penalty and held that the e-way bill generated for exporting goods to Bangladesh expired due to an accident.

The bench of Chief Justice T. S. Sivagnanam and Justice Supratim Bhattacharya has observed that unless and until it is established by the department that the transporter of the goods or the owner of the goods had an intention to contravene the provisions of the Act, the question of imposing a penalty under Section 129 of the WBGST Act that is too high would not be justified.

Re-Fixation Of Salary Only Possible Under Existing Rules, No Vested Right Of Teacher To Claim Enhanced Pay For Being Overqualified: Calcutta HC Larger Bench

Citation: 2024 LiveLaw (Cal) 40

Case: Utpal Kanti Karan v State of West Bengal & Ors & connected matters

In a 187-page order, a larger bench of the Calcutta High Court comprising Justices Harish Tandon, Soumen Sen, and Kaushik Chanda have held that teachers in the State of West Bengal cannot seek re-fixation of salary due to having attained higher educational qualifications during the course of their employment, in absence of any rules for such re-fixation of salary.

In deciding the reference arising out of common questions of law in multiple cases, the bench held:

Enhancement of pay on acquisition of higher qualification during the service career is dependent upon the relevant rules operating at the time of acquisition of higher qualification and cannot be claimed as a matter of right in absence of Rules. If a teacher has consciously applied for a post under the pass graduate category in spite of having an Honours Graduate/Post Graduate qualification he/she/they cannot claim as a matter of right higher pay scale [for being overqualified.] The claim of higher pay scale on acquiring higher degree cannot be considered to be a vested right and elevated to a legal right. It is no more than a reasonable expectation.

Calcutta HC Closes Contempt Case Against Doctors Who Terminated Pregnancy Without Court's Orders Upon Being Told Patient Went Into Pre-Term Labour

Citation: 2024 LiveLaw (Cal) 41

Case: X vs State of West Bengal

The Calcutta High Court has closed a contempt case against a group of government doctors who medically terminated the pregnancy of a minor rape survivor, without the leave of the Court, and only after the Court had asked for the formation of a medical board to ascertain the feasibility of termination of pregnancy.

A single bench of Justice Sabyasachi Bhattacharya had called for an explanation from the doctors detailing why they needed to carry out the termination of pregnancy with such 'hot-haste'.

On this occasion, upon being told that the pregnancy had to be terminated on an emergency basis due to the patient suffering from labour pain, and bleeding, the Court noted:

In view of the tremendous pain being suffered by the petitioner at the relevant juncture, who was having labour pain and severe bleeding, the doctor was compelled in order to give relief to the patient, to terminate the pregnancy immediately.

Sluggishness Intolerable: Calcutta High Court Slams CBI's Conduct For Failing To File Appeal Within Limitation Period

Citation: 2024 LiveLaw (Cal) 42

Case: CBI v Binod Kr Maheshwari

The Calcutta High Court has heavily criticized the conduct of the Central Bureau of Investigation (CBI) and its Director for failing to file an appeal within the statutory period of limitation.

A single bench of Justice Bibhas Ranjan De, in a plea for condonation of delay in filing the special leave to appeal, allowed delayed filing in the interest of justice and held:

I am astounded by the conduct of the CBI in such important matters how such delay could take place. The CBI ought to have been careful in filing the special leave (to appeal) within the period of limitation. CBI ought to be guided by its latest updated manual. In the instant case, sluggishness on its part is intolerable. Director of CBI being responsible should look into the matter and saddle the responsibility on a person concerned. The Director CBI cannot escape the responsibility for delay in such cases which is to be termed as deliberate one, which is intolerable.

Splitting Of An Arbitral Award For Publication Is Unnatural And Unsupported By Law, Calcutta High Court Allows Extension Of Arbitrator's Mandate

Citation: 2024 LiveLaw (Cal) 43

Case Title: R S Fuel Pvt Ltd vs Ankit Metal And Power Ltd

The Calcutta High Court bench comprising Justice Moushumi Bhattacharya held that neither the Arbitration and Conciliation Act, 1996 nor the Insolvency and Bankruptcy Code, 2016 allows a party's request to halt the publication of an arbitral award to the extent of its reliance on another party's counter-clam. The bench noted that the notion of splitting an arbitral award for this purpose is unnatural and unsupported by law.

Calcutta High Court Quashes Complaint Against Director As Prosecution Failed To Implead Company Importing Liquors Not For Sale

Case Title: Mr. Raj Sahai vs. the State of West Bengal & Anr.

Citation: 2024 LiveLaw (Cal) 44

The Calcutta High Court has quashed the complaint against the director as the prosecution failed to implead the company importing liquors not for sale.

The bench of Justice Shampa Dutt (Paul) has observed that the company has not been made an accused. The petitioner, a director of the company, has been made an accused. The place of seizure and the seized articles on which the case has been initiated is the registered office of the company. The petitioner has also been arrested from the office of the company. The complaint was in clear violation of Section 46B of the Bengal Excise Act, 1909, which relates to offences by companies.

The Calcutta High Court on Thursday granted bail to journalist Santu Pan, who was arrested while reporting live from Sandeshkhali, in West Bengal for Republic TV on 19th February.

According to reports, the state authorities had alleged that the journalist was arrested for outraging the modesty of a woman by entering her home while reporting. These charges were however denied by the journalist, who claimed that his arrest came since he was 'exposing the truth' in Sandeshkhali.

The bail was granted by a single bench of Justice Kaushik Chanda. Republic TV has hailed the decision of the Court as a 'vindication' on their official YouTube channel.

The Calcutta High Court on Thursday, directed for the reclassification of a plea moved by the Vishwa Hindu Parishad as a public interest litigation, and for it to be placed before the regular bench having determination over PILs.

The Court also orally called on the State to consider renaming the lioness called 'Sita' who was a worshipped goddess among Hindus, to avoid controversy. Upon being told that the lioness at Alipore zoo was called 'Sruti', the bench orally remarked:

"These are the uncontroversial names. Will you name a lion after a Hindu deity, a Muslim prophet or Christian god or freedom fighter or nobel laureate? Generally anyone who is revered or respected by the people of our country?"

Consumer Forum Cannot Assume Jurisdiction When Special Statue Prescribes Arbitration; Calcutta High Court Set Aside West Bengal State Commission Order

Citation: 2023 LiveLaw (Cal) 52

Case Title: The Secretary, E & NF Railway Junior Co-operative Credit Society Limited, Eastern Railway vs Sri Jyotish Chandra Sarkar & Anr.

The Calcutta High Court single bench of Justice Prasenjit Biswas held that consumer forum cannot assume jurisdiction when a special statue prescribes for arbitration and designates a forum for adjudication of disputes. It held that a special law takes precedence over a general law.

The Calcutta High Court on Monday, allowed a plea by BJP MP and Leader of Opposition, Suvendu Adhikari to visit the affected area in Sandeshkhali, West Bengal, from where there have recently been reports of alleged violence and assault on women.

Live Law had earlier reported on a suo moto motion taken up by the Calcutta High Court regarding the aforesaid violence, as well as an order staying the declaration of Section 144 CrPC in the area.

In the present plea, a single bench of Justice Kausik Chanda, allowed the plea moved by Adhikari and permitted him to visit the area subject to certain conditions. It held:

The petitioners will be allowed to visit Sandeshkhali Gram Panchayat under Sandeshkhali Block –II on February 20, 2024. The petitioners, within 9:30 p.m. of this date, shall submit their proposed plan of visit along with the route map before the local police station. The petitioners shall also file an undertaking before the local police station not to engage in any activities that may lead to deterioration of the law and order situation in the locality. The State may deploy required number of security personnel to ensure that no untoward incident takes place during their visit.

The Calcutta High Court has recently held that it is impermissible and violative of the Right to Equality under Article 14 of the Constitution, to differentiate between contractual employees and permanent employees for the purpose of extending maternity leave.

A single bench of Justice Raja Basu Chowdhury held:

On the question of a woman's right to child birth and maternity leave no differentiation is permissible between regular and contractual employees of the respondent no.2. Denial of grant of maternity leave to the petitioner constitutes a discriminatory would tantamount to compel an employee to work during her advanced pregnancy, notwithstanding the same may ultimately endanger both her and her foetus. If the same is permitted, the object of social justice would stand deviated.

[Arbitration & Conciliation Act] S.29A Preserves Arbitral Efficacy, Guards Against Those Who Put Making Of Award On Back-Burner: Calcutta HC

Citation: 2024 LiveLaw (Cal) 57

Case: Praxair India Pvt. Ltd. v Steel Authority of India Ltd

The Calcutta High Court has recently held that Section 29 of the Arbitration & Conciliation Act, 1996, ensures that the arbitral tribunal acts in consonance with the stakeholders to ensure that an award is made within the prescribed timelines.

A single bench of Justice Moushumi Bhattacharya held that in the present case, the arbitrator had informed the parties about the prescribed time for declaration of the award, and rejected the respondents contention that arbitration had to commence de novo due to expiration of mandate under Section 29A.

Calcutta High Court Allows Premature Release Of Prisoner Incarcerated For 23 Yrs, Says Refusal Would Amount To 'Social Crime'

Citation: 2023 LiveLaw (Cal) 58

Case: Afzal Khan @ Fazo and another v State of West Bengal and others

The Calcutta High Court has recently ordered the release of a prisoner who had been incarcerated for more than 23 years upon being convicted of kidnapping a minor and being part of organized crime.

Upon noting the reformed state of the prisoner after his prolonged incarceration, a single bench of Justice Sabyasachi Bhattacharya held:

What the petitioner no. 1 did in his 20's at the time of his conviction cannot be sufficient basis for assuming what he will do after his release, more so, since an alternative source of income by agriculture has been clearly portrayed. Our society cannot cast a double stigma on the petitioner no. 1 by punishing him again in refusing premature release and refusing him an opportunity to reintegrate in main-stream society. Such refusal, if comes about, will also be a social crime against the petitioner no. 1 and cannot be approved by a court of law.

High Court Allows BJP To Hold Protest Against Unrest In Sandeshkhali, Sets Aside Kolkata Police's Order

Citation: 2024 LiveLaw (Cal) 59

Case: Pranoy Roy v State of West Bengal

The Calcutta High Court has allowed a plea moved by the office secretary of the West Bengal wing of the Bharatiya Janata Party to hold a protest against the unrest that has recently unfolded in Bengal's Sandeshkhali on 28th and 29th February 2024.

A single bench of Justice Kausik Chanda imposed certain conditions in allowing the plea and capped the attendance at a maximum of 150 people. It held:

Needless to mention that right to assemble peaceably, freedom to speech and expression are guaranteed under Article 19 of the Constitution of India. Such rights, however, may be subject to reasonable restrictions imposed by the State. The number of demonstrators should be restricted within 150. The demonstrations shall be conducted between 10 a.m. to 6 p.m.

The Calcutta High Court has recently held that the mere silence of a party affecting the willingness of a person to enter into a contract is not fraud unless the circumstances of the case are such that it is the duty of the person keeping silence to speak or unless the silence is in itself equivalent to speech.

A single bench of Justice Moushumi Bhattacharya referred to Section 17(2) of the Indian Contract Act, and held:

Fraud also takes within its fold active concealment of a fact by the party having knowledge of the fact or a promise made without the intention of performing it or any other act which is fitted to deceive. It is relevant that section 17(2) contemplates “active concealment” which points to deliberate non-disclosure with a pre-meditated intention to deceive the other party or induce him to enter into the contract.

The Calcutta High Court on Tuesday transferred an investigation to the Central Bureau of Investigation (CBI) pertaining to the assault on Enforcement Directorate (ED) officers who had gone to Sandeshkhali, West Bengal to raid the residence of ration-scam accused Shahjahan Sheikh.

A division bench of Chief Justice TS Sivagnanam and Justice Hiranmay Bhattacharya set aside an earlier order constituting an SIT with members of the state police and directed the State to forthwith transfer all papers concerning the matter to the CBI, as well as the custody of prime accused Shahjahan Sheikh. It held:

It was made explicitly clear that the West Bengal State Police are restrained from proceeding with the investigation in the cases which have been registered by them. Despite such an order, the one case stood transferred to the CID, West Bengal who has issued notices dated 01.03.2024 under Section 91 and Section 160 CrPC. Thus, this act of the State Police would be sufficient to hold that the State Police are totally biased and every attempt is being made to delay the investigation in order to protect the accused who has been absconding for more than 50 days.

Calcutta High Court Allows Rectification Of Child's Birth Certificate To Replace Biological Father's Surname With Step-Father's Surname

Citation: 2024 LiveLaw (Cal) 63

Case: Arpita Chowdhury v. Nabadwip Municipality & Anr

The Calcutta High Court has recently allowed a plea moved by the mother of a minor child to replace the biological father's surname in the child's birth certificate with the name of the step-father.

It was submitted that the child was born from her first marriage and that after the dissolution of that marriage, she remarried and moved out of the marital house to live with her present husband, who had accepted the child, and whom the child had known as his father.

In directing the Municipal Corporation to re-issue the child's birth certificate, a single bench of Justice Amrita Sinha held:

One cannot be hyper-technical while dealing with personal issues with hardly any public law element involved. With the change in circumstances, the entry in respect of the father of the minor child has to be taken as improper and liable to be rectified and the records are to be corrected. If the necessary alteration is not done, then the child and her parents may have to face several embarrassing situations in the future. Every individual has the right to live with dignity and honour.

Right To Life & Equality Are Implicit Human Rights, Not Restricted To Citizens: Calcutta HC Orders Release Of Pakistani Man Imprisoned Despite Serving Sentence

Citation: 2024 LiveLaw (Cal) 64

Case: Monoyara Begum v Union of India

The Calcutta High Court has recently ordered the release of a Pakistani national who remained in prison, even after serving the full length of their sentence under the Foreigners Act, 1946.

A single bench of Justice Sabyasachi Bhattacharya observed:

Articles 14 and 21 of the Constitution of India are [not] restricted to Indian citizens, but are available to any person on the soil of India. In fact [it] does not flow from the Constitution but has merely been recognized by the Constitution. Such rights are implicit human rights which are inextricable from a life worth being called a human existence and a person cannot be denuded under any circumstances. The petitioner, having completed his sentence, cannot be retained in further custody, in any prison cell, of whatever colour, texture or dimension. The petitioner no. 2 is entitled to live a life of dignity.

The Calcutta High Court has recently held that a judgment which fails to consider a precedent which was available at the time of pronouncing the judgment but was not shown to the Court, is not reviewable on the ground of being per incuriam.

A single bench of Justice Moushumi Bhattacharya held:

A judgment containing an erroneous point of law is not reviewable; it is an appealable judgment. A judgment pronounced on a question of law which is subsequently reversed or modified by a superior Court is also not a reviewable judgment. A judgment which fails to consider a decision which was available at the time of pronouncing the judgment, but was not shown to the Court, by the same logic, is not reviewable on the ground of being per incuriam. Such a judgment would be open to challenge before a superior Court. Explanation to Order XLVII Rule 1 preserves the finality of a decision even where the question of law is subsequently unsettled by a superior Court.

Settlement Process By Chairman And Managing Director Doesn't Involve Adjudication, Not Final And Binding: Calcutta High Court

Citation: 2024 LiveLaw (Cal) 70

Case Title: M/s. Mainak Engineering Private Limited vs Bihar Rural Livelihoods Promotion Society.

The Calcutta High Court division bench of Justice I.P. Mukerji and Justice Biswaroop Chowdhury held that the settlement process undertaken by the Chairman and Managing Director of the company doesn't involve adjudication. It held that the termination of a settlement attempt does not always result in a “final and binding” decision.

Arbitration Act | 'Court' Under Section 29A Takes Character Of Appointing Authority Under Section 11: Calcutta High Court

Citation: 2024 LiveLaw (Cal) 71

Case Title: Praxair India Pvt. Ltd. vs Steel Authority of India Ltd.

The Calcutta High Court single bench of Justice Moushumi Bhattacharya held that the word “Court” in Section 29A of the Arbitration and Conciliation Act, 1996 for extension of the mandate of the arbitrator takes the character of the appointing authority under Section 11 of the Arbitration Act. Therefore, it held that can only be the Court which has the power to appoint an arbitrator under Section 11.

For Unconditional Stay Of Arbitral Award, Prima Facie Case Of Fraud With Substantial Impact On Outcome On Arbitration Proceedings: Calcutta High Court

Citation: 2024 LiveLaw (Cal) 72

Case Title: SRMB Srijan Limited vs Great Eastern Energy Corporation Limited.

The Calcutta High Court single bench of Justice Moushumi Bhattacharya held that for an unconditional stay of an arbitral award on pretext of fraud, there should prima facie case of fraud which should be evident on the face of the record without the necessity of a detailed or through examination. The bench held that fraud must be evident and reprehensible, with a substantial impact on the outcome of the arbitration proceedings.

MSCS Act | Disputes Between Society And Its Members Are Subject To Arbitration: Calcutta High Court Sets Aside State & District Consumer Commission Orders

Citation: 2024 LiveLaw (Cal) 73

Case Title: The Secretary, E & NF Railway Junior Co-operative Credit Society Limited, Eastern Railway vs Sri Jyotish Chandra Sarkar & Anr.

The Calcutta High Court single bench of Justice Prasenjit Biswas held that disputes concerning the management, constitution, or business of the society, between the society and its members or those claiming through them, are subject to arbitration under Section 84 of the Multi-State Co-operative Societies Act, 2002. Therefore, it set aside orders of District Consumer Disputes Redressal Forum and the State Consumer Disputes Redressal Commission for entertaining the complaint.

The Calcutta High Court on Thursday reserved its verdict in various pleas seeking a probe into the alleged instances of violence against women and land grabbing which had occurred in Sandeshkhali, West Bengal under the watch of former Pradhan Shahjahan Sheikh, and his workers.

A division bench of Chief Justice TS Sivagnanam and Justice Hiranmay Bhattacharya were considering public interest litigations seeking an independent probe into the instances of violence alleged against Shahjahan and his men.

Upon hearing the allegations raised by counsel, and reading the affidavits placed on record regarding the sexual assault faced by the women, and land grabbing faced by the people of the area, the Chief Justice orally remarked:

"The entire district administration and ruling dispensation must owe a moral responsibility. Even if [the affidavit] 1% is true it is absolutely shameful. And West Bengal says it is safest for women? If one affidavit is proved to be right all of this falls."

Earlier, the Court had directed the investigation into the attack on ED officials allegedly at the behest of Sheikh's officials to be transferred to the CBI, as well as custody of Shahjahan Sheikh.

[Cash For Jobs Scam] High Court Raps Bengal Chief Secy Over Delay In Sanctioning Prosecution Of State Officials

Case: Kuntal Ghosh v CBI & connected matters

Case No: CRM (DB) 172 of 2024 & connected matters

The Calcutta High Court has hauled up Bengal's Chief Secretary for not submitting a report on the time required for him to decide over the grant of sanction to prosecute government officials who are being probed in connection with the multi-tier recruitment cash-for-jobs scam.

Upon being told that the report which had been called for by the Court on an earlier occasion had not yet been submitted by the chief secretary, the division bench of Justices Joymalya Bagchi and Gaurang Kanth held:

"Least expectation is for the report to be submitted. This is very painful. The bench is giving a direction [with no response]. We are asking the government pleader to appear at 2pm. If this order also does not get a response, then [we will summon]. Now we have to follow a procedure before summoning officials, so we are recording in this order that we will be constrained to call for his personal appearance."