Calcutta High Court Monthly Digest: November 2023 [Citations 325- 338]

NOMINAL INDEX

Damodar Valley Corporation v BLA Projects Pvt Ltd 2023 LiveLaw (Cal) 325

In the matter of: Sanjay Kashyap & Anr 2023 LiveLaw (Cal) 326

Babu Mondal & Ors. vs The State of West Bengal 2023 LiveLaw (Cal) 327

Arnab Roy v State of WB & Ors with another connected application 2023 LiveLaw (Cal) 328

M/s. Kayal Construction Vs. The State of West Bengal & Ors 2023 LiveLaw (Cal) 329

Vishambhar Saran v Punjab National Bank & Anr 2023 LiveLaw (Cal) 330

Dr. Kunal Saha Vs. Registrar, West Bengal Medical Council (WBMC) & Another 2023 LiveLaw (Cal) 331

Amzed Ali Vs. State of West Bengal 2023 LiveLaw (Cal) 332

Jagannath Chattopadhyay V The State of West Bengal and others 2023 LiveLaw (Cal) 333

Subha Saha Versus The State of West Bengal & Ors. 2023 LiveLaw (Cal) 334

Concrete Developers LLP v Gaurav Churiwal and Ors 2023 LiveLaw (Cal) 335

Balbina Tandon & Ors. v The State of West Bengal & Ors. 2023 LiveLaw (Cal) 336

Tarun Kumar Pal Vs. The State of West Bengal & Anr. 2023 LiveLaw (Cal) 337

In Re: Dr Kalyanmoy Ganguly 2023 LiveLaw (Cal) 338

No ‘Contra-Indicia’ To Un-Seat Venue: Calcutta High Court Reiterates The Law On Seat & Venue In Arbitral Proceedings

Citation: 2023 LiveLaw (Cal) 325

Case: Damodar Valley Corporation v BLA Projects Pvt Ltd

The Calcutta High Court has held that the venue for arbitration, as decided by the parties under their contractual agreement would automatically be the seat for arbitration, in the absence of any ‘contra-indicia.’

In rejecting jurisdictional objections on its competence to entertain an application under Section 34 of the Arbitration & Conciliation Act, 1996 (“A & C Act”) upon noting that Clause 16 of the Contract between the parties had designated Kolkata to be the venue of arbitration and the Court in the City of Kolkata to have exclusive jurisdiction a single-bench of Justice Moushumi Bhattacharya held:

The parties accepted this agreement to be the final agreement. The fact that venue would be construed as the juridical seat of the arbitration has also been judicially settled where the seat is not specified. There is hence no contra indicia to un-seat the arbitration from the Court in the city of Kolkata which is the High Court at Calcutta. The respondent has not presented any contrary indicia to show that the cause of action has arisen elsewhere and would consequently divest this Court of jurisdiction.”

Calcutta High Court Grants Bail To NDPS Accused, Says No Reason To Obligate Them To Rigors Of S.37 In Absence Of Forensic Report

Citation: 2023 LiveLaw (Cal) 326

Case: In the matter of: Sanjay Kashyap & Anr

A Calcutta High Court bench comprising Justices Sabyasachi Bhattacharya and Partha Sarathi Chatterjee have granted bail to the petitioners who had been accused under the NDPS Act, upon noting that the rigors of Section 37 of the NDPS Act which requires a Court to only grant bail if there are reasonable grounds to believe the accused are not guilty and will not reoffend, would not apply to the present case.

In observing that although a charge sheet had been filed, the forensic report (“CFSL report”) or even a supplementary charge sheet had not been taken on board due to “institutional latches,” the bench ordered:

Although charge-sheet was filed within 180 days, the same was merely lip-service paid to the provisions of the statute. Section 37 of the NDPS Act has to be strictly construed since it operates against the fundamental rights of personal liberty of a person. There is nothing on record to show that till date any CFSL report has been submitted by the investigating authorities. Hence, in the absence of the CFSL report, due to institutional laches, we do not find any reason to obligate the petitioners with the rigour of Section 37 of the NDPS Act.

NDPS Act | Calcutta High Court Suspends Conviction Of Four, Cites Infirmities In Investigation & Violations Of Mandatory Statutory Provisions

Citation: 2023 LiveLaw (Cal) 327

Case: Babu Mondal & Ors. vs The State of West Bengal

The Calcutta High Court has recently suspended the convictions and 15-year prison sentences of four persons under the Narcotic Drugs & Psychotropic Substances Act (“NDPS Act”), for the alleged possession of commercial quantities of cannabis.

In allowing the application for suspension of sentence and bail under Section 389(1) of the CrPC, pending the disposal of the final appeal, a division bench of Justice Moushumi Bhattacharya and Justice Prasenjit Biswas held:

There are several facts to prove the faulty investigation made in the present case. The entire search and seizure process of the alleged contraband which is the genesis of the NDPS case, cannot be accepted as credible. The infirmities in the investigation and the violations of the mandatory provisions, dealt above, including of section 42, 52-A of the NDPS Act read with section 100 of the Cr.P.C, persuades this Court to suspend the sentence imposed upon the petitioner/appellants and grant bail to the petitioners/appellants pending hearing of the appeal.

All-Time High Unemployment Due To Hurdles Created By ‘Petty Technicalities’ & Misuse Of Discretionary Powers: Calcutta HC

Citation: 2023 LiveLaw (Cal) 328

Case: Arnab Roy v State of WB & Ors with another connected application.

The Calcutta High Court has recently observed that the lack of efficient mechanisms in providing employment to youth, has led to a large percentage of the country’s population being unemployed.

Court was dealing with challenges against the action of the Additional District Inspector of Schools (SE), Purba Medinapur in the recruitment process to hire one clerk and two laboratory attendants, being carried out by the managing committee of Marishda BKJ Banipith School,

In setting aside memos by the Additional District Inspector of Schools (SE), Purba Medinapur, which had dissolved the panels for appointment of Group C & D staff (clerk & lab attendant), published by the school, a bench of Justice Shekhar B Saraf held:

Rather than encouraging the citizens of India to actively seek out jobs and contribute to the flourishing of the nation, institutions have frustrated the youth by creating hurdles borne out of petty technicalities and have misused the discretionary power enshrined on them. Rather than employing combined efforts to ensure the position is filled up, what has ensured is years of legal disputes. Therefore, this court sets aside the impugned memo of the Additional District Inspector of Schools (SE), Purba Medinapur dated July 3, 2020.

Company Taking Calculated Business Risk Cannot Challenge Root Of Contract Merely Due To Change In Tax Laws: Calcutta HC Denies GST Refund

Citation: 2023 LiveLaw (Cal) 329

Case: M/s. Kayal Construction Vs. The State of West Bengal & Ors

The Calcutta High Court has recently dismissed writ petitions by M/s Kayal Construction, which had been awarded tenders floated by the state government, on the condition that the petitioner would bear expenses for all the taxes/cess payable.

Petitioners contended that the rates for the taxes/cess payable had been specified in the terms of contract, and that due to the subsequent implementation of the Goods & Services Tax (“GST”) in 2017 they were compelled to bear additional expenses. Through these petitions, they claimed a refund of the additional expenses made by them.

In dismissing the petitioners’ case, a single-bench of Justice Sabyasachi Bhattacharya held:

Introduction of the GST regime has not taken away the certainty of price. Even if the petitioner argues that the taxes have been enhanced, the same was factored into the original clauses of the contract. Mere replacement of Sales Tax, Excise Duty, VAT and other similar taxes by the GST regime does not change such parameters in any manner. In fact, even Sales Tax, VAT, Excise Duty and other levies specifically enumerated by way of example in the contract can very well be enhanced from time to time by the revenue authorities.

Calcutta HC Sets Aside Bank’s Complaint Against Alleged ‘Wilful Defaulter,’ Says Arbitrariness Infringes Individual’s Right To Equality

Citation: 2023 LiveLaw (Cal) 330

Case: Vishambhar Saran v Punjab National Bank & Anr

The Calcutta High Court has set aside a complaint lodged by Punjab National Bank (“PNB”) against the petitioner, requesting the CBI to register an FIR against the petitioner on basis of the complaint due to the petitioner being allegedly construed as a “wilful defaulter” under the Master Circular on Wilful Defaulters issued by the Reserve Bank of India (RBI) in 2015.

Petitioner contended that after the aforesaid complaint was lodged, in 2021, the Wilful Defaulter Identification Committee (“IC”) had suo moto recalled its order whereby it declared the petitioner a wilful defaulter, and as such the premise of the complaint was a spent force.

Upon hearing the parties, a single-bench of Justice Sabyasachi Bhattacharya held:

The admitted position [is] that none of the grounds made out in the complaint subsist today or subsisted on the date of registration of the FIR. Equality before the law is [an] important aspect, under Article 14 of the Constitution. The moment arbitrariness and/or mala fides is exhibited against a citizen of India, a contravention of Article 14 occurs as in the present case. WPO No.1626 of 2023 is allowed on contest, thereby setting aside the impugned complaint lodged by the PNB requesting the CBI to register FIR dated June 18, 2021 insofar as the writ petitioner is concerned.

Calcutta High Court Dismisses Plea Challenging WB Medical Council Appointments, Says No Gross Illegality In Nomination Process

Citation: 2023 LiveLaw (Cal) 331

Case: Dr. Kunal Saha Vs. Registrar, West Bengal Medical Council (WBMC) & Another

The Calcutta High Court has recently dismissed a plea which challenged appointments to the West Bengal Medical Council (“WBMC”), and sought for dissolution of the entire Council.

A single-bench of Justice Sabyasachi Bhattacharya noted that while the plea pertained to dissolution of the entire council, arguments and pleadings had only been advanced against the election of the President and VP of the Council.

In dismissing the plea, the Bench observed:

The newly-elected Council has already functioned and has taken several decisions in the interregnum. Thus, a subsequent challenge at this juncture on a purely technical ground, if sustained, would set the clock back and might undo several decisions of the Council. The petitioner has not made out any strong case. In view of the above observations, I do not find any gross illegality in the process of recommending and nominating the President and electing the Vice President or the election process of the new West Bengal Medical Council sufficient to upset the apple cart at this belated stage.

Calcutta HC Sets Aside 33 Yrs Old Conviction Under Essential Commodities Act, Says No Mens Rea In Omitting License Number From Shop’s Cash Memo

Citation: 2023 LiveLaw (Cal) 332

Case: Amzed Ali Vs. State of West Bengal

The Calcutta High Court recently acquitted an individual who, in 1990, was found guilty by the trial court under Section 7(1)(a)(ii) of the Essential Commodities Act, 1955 (“EC Act”) for violation of the WB Cloth and Yarn Order 1960, and sentenced to undergo imprisonment for one month along with fine.

In holding that the trial judge had erred in appreciating the guidelines framed by the Enforcement authorities under the EC Act, while convicting the appellant, a single bench of Justice Subhendu Samanta held:

Only by not mentioning the licence No. in the Sign board or in the cash memo does not constitute any mens rea on behalf of the appellant. Department guidelines indicate that if any person during the course of normal transaction forgets to mention either the licence number or the date on the bill or memo, such type of mistake and omission is not obligatory upon the directorate to launch a prosecution. In this case Learned Special Judge has failed to appreciate guidelines of the said department and passed the erroneous order.

Rallies Are A 'Regular Feature' In Bengal: High Court Dismisses State's Appeal Against BJP Rally In Kolkata

Citation: 2023 LiveLaw (Cal) 333

Case: Jagannath Chattopadhyay V The State of West Bengal and others

The Calcutta High Court dismissed an appeal preferred by the West Bengal government against the order of a single-bench which permitting BJP rally near Victoria House in Kolkata on the 29th of November.

Earlier, a single bench of Justice Rajasekhar Mantha had allowed the rally upon taking exception to non-application of mind shown through the "computerised rejections" by the Kolkata police. The agency had reasoned that the petitioners had not applied within the requisite time according to advisories issued by the State.

A division bench of Chief Justice TS Sivagnanam and Justice Hiranmay Bhattacharya upheld the the single bench decision and held:

The advisory says applications need to be made 2/3 weeks prior to the program. Here, the application has been made 23 days prior. The advisory is not a statute. It cannot be taken as a rigid rule, and there is discretion vested with the authorities. Processions meetings and rallies are regular features of the state of West Bengal and particularly Kolkata…many instances are there where rallies have been held without any permission. There are instances where such rallies paralyse the city's traffic and the police are unable to control the same. In view of this, we are unable to interfere with the single bench’s order. Accordingly, the appeal stands dismissed. Since the terms and conditions have been laid down in the Kolkata Police website, they shall be adhered to, and thus the writ petition is disposed of.

Calcutta High Court Allows Use Of Musical Instruments In ‘Rash Festival Yatra’ But Within Permissible Sound Limits

Citation: 2023 LiveLaw (Cal) 334

Case: Subha Saha Versus The State of West Bengal & Ors.

The Calcutta High Court has allowed a plea for the usage of musical instruments such as 'khol', 'kartal', etc. which was claimed to be an essential religious practice in the 'shobha yatra' during the festival of 'Rash Purnima.'

In allowing the plea, a single bench of Justice Jay Sengupta held:

"It appears from the report that the Committee, which is in charge of holding the Rash Utsab, had actually arrived at such restrictions. It was in view of such restrictions that the police have published a leaflet incorporating the same. However, the devotees should not be prevented from using musical instruments in the “Shobha Yatra” provided that the sound is within permissible limits. Therefore, the relevant restriction stands modified accordingly. The petitioner also undertakes not to cause any disturbance and to follow all other norms in conducting their “Shobha Yatra.”

S.37 Court Must Be Circumspect When Interfering With Arbitrator’s Interim Orders: Calcutta HC Preserves Deceased LLP Partner’s Share

Citation: 2023 LiveLaw (Cal) 335

Case: Concrete Developers LLP v Gaurav Churiwal and Ors.

The Calcutta High Court has recently held that a Court exercising powers under Section 37 of the Arbitration & Conciliation Act, 1996 (“1996 Act”) must be circumspect in its interference with interim orders of an arbitrator.

In refusing to interfere with the order passed under Section 17 of the 1996 Act, for preserving the share of a deceased LLP partner, amounting to approx. Rs 6 crores in a separate interest bearing account in name of the LLP, a single-bench of Justice Moushumi Bhattacharya held:

There can be no jurisdictional objection to the impugned order as the Act of 1996 grants the arbitral tribunal plenary powers to pass such orders for preserving the dispute in the arbitration. The order also does not suffer from any factual or legal infirmity and is certainly not arbitrary or perverse. Taking into account the legal position, the case law on the subject and the particular facts in the present matter, the Court is accordingly of the view that the impugned order does not call for any interference.

Only Genuine Perceptions Revealed Before Death: Calcutta HC Declines To Quash Abetment Case Against Wife Implicated In Husband’s 'Suicide Note'

Citation: 2023 LiveLaw (Cal) 336

Case: Balbina Tandon & Ors. v The State of West Bengal & Ors.

The Calcutta High Court has dismissed a Section 482 CrPC application filed by a wife, for quashing criminal proceedings initiated against her under Section 306 IPC for abetment to suicide of her deceased husband.

The younger brother of the deceased, upon his suicidal death in 2015, approached the jurisdictional police station and filed an FIR, alleging that the victim had ended his life due to the "severe mental torture" perpetrated by the present petitioners. The police as well as the complainant relied heavily on a "suicide note" left behind by the deceased, allegedly implicating the petitioners.

In refusing to quash the proceedings upon observing that a cognizable case had been prima facie made out against the petitioners, a single bench of Justice Rai Chattopadhyay held:

A person, immediately before his death would only let his genuine perceptions to reveal to the world after his death and so he writes. Though the [deceased] mentioned no other person [is] responsible for his death, at the same time he mentions that his wife or child should not be allowed to see his dead body. All these are triggering to the only fact that a cognizable case [has] been prima facie made out against the petitioners. [Thus] not enough ground is available for quashing the criminal case.

Calcutta High Court Quashes Case Against Village-Level Entrepreneur Accused Of Siphoning Funds Allotted Under Pradhan Mantri Awas Yojana

Citation: 2023 LiveLaw (Cal) 337

Case: Tarun Kumar Pal Vs. The State of West Bengal & Anr.

The Calcutta High Court has recently quashed criminal proceedings against the petitioner, who had been accused of siphoning off funds, which were allotted under the Pradhan Mantri Awas Yojana, a rural housing project under the Union government.

Petitioner had been working as a Village Level Entrepreneur (VLE) since 2018 under Baraturigram Gram Panchayat, Mayureshwar-I Development Block and Panchayat Samity Office.

In quashing the criminal proceedings against the petitioner, a single bench of Justice Ajay Kumar Gupta noted:

This Court finds the case initiated against him is purely on the basis of suspicion as appears in the FIR as well as in the charge-sheet. Case alleging cognizable offences without specific allegation or disclosing materials against the petitioner cannot be continued. There must be direct allegation and/or material or involvement in the alleged offence but that is entirely missing. Allegation against him is only on the basis of doubt or suspicion.

Recruitment Scam | High Court Grants Bail To Former West Bengal Secondary Education Board President Kalyanmoy Ganguly

Citation: 2023 LiveLaw (Cal) 338

Case: In Re: Dr Kalyanmoy Ganguly

The Calcutta High Court has allowed an application for bail moved by the former President and Administrator of the West Bengal Board of Secondary Education (WBBSE), Dr Kalyanmoy Ganguly.

In allowing the plea, while directing the accused to surrender his passport before the trial court, and refrain from witness tampering of any kind, a division bench of Justice Joymalya Bagchi and Justice Gaurang Kanth held:

In view of the state at which the criminal proceeding is presently poised, we are of the opinion there is little possibility of its commencement even in the near future. Petitioner an old person who is suffering from various ailments. He is in detention for more than one year and two months. In this backdrop continued detention of the petitioner would not be in consonance to the principles of justice and fair procedure which is just, fair and reasonable on the touchstone of Article 21 of the Constitution of India. For these reasons, we are inclined to enlarge the petitioner on bail however, subject to strict conditions.