Calcutta High Court Weekly Round-Up: July 17 To July 23, 2023

1. Dipu Bar and Ors. Vs Union Of India and Ors. 2023 LiveLaw (Cal) 186
2. Smt. Shanta Paul v The State Of West Bengal And Others 2023 LiveLaw (Cal) 187
3. Dhirarastra Dutta Vs State of West Bengal and Ors. 2023 LiveLaw (Cal) 188
4. Srei Equipment Finance Limited v. Seirra Infraventure Private Limited 2023 LiveLaw (Cal) 189
5. State of West Bengal & Ors. v. Asit Das & Ors. & connected appeals 2023 LiveLaw (Cal) 190
6. Jaya Industries v Mother Dairy Calcutta & Anr. 2023 LiveLaw (Cal) 191

1. Calcutta High Court Directs South 24 Parganas DM To Enquire Into Alleged Misallocation Of Funds Under PM Awas Yojana

Case Title: Dipu Bar and Ors. Vs Union Of India and Ors.

Citation: 2023 LiveLaw (Cal) 186

The Calcutta High Court recently directed the District Magistrate of South 24 Parganas district to inquire into alleged discrepancies in allocation of public funds under the Pradhan Mantri Awas Yojana.

While disposing of a petition alleging “large scale illegalities” in the Yojana, a Division bench of Chief Justice T.S. Sivagnanam and Justice Hiranmay Bhattacharya ordered:

“...without going into to the allegations, the District Magistrate, South 24 Parganas district, to is directed to consider the representation and investigate the matter, call for the necessary records, issue notices to all those concerned, and after a thorough enquiry, to take all action in accordance to law. In case public money has been found to be siphoned off, the DM is directed to take immediate remedial action and criminal actions against those who have siphoned off public funds. The above direction be complied with, within a period of 6 weeks.”

2. S.11 CPC | Second Writ Petition On Identical Grounds Not Maintainable: Calcutta High Court Upholds Appointment Of Kazi Nazrul University Registrar

Case Title: Smt. Shanta Paul v The State Of West Bengal And Others

Citation: 2023 LiveLaw (Cal) 187

The Calcutta High Court dismissed a Public Interest Litigation seeking to nullify the appointment of the Registrar of Kazi Nazrul University, West Bengal, on the grounds that such an appointment was made on the basis of an erroneous advertisement, which did not conform to the UGC Regulations, 2018 or the All India Council for Technical Education (“AICTE”) Regulations, 2010.

A division bench of Chief Justice T.S. Sivagnanam and Justice Ajay Kumar Gupta noted that while there was no inconsistency between the UGC/AICTE Regulations and the impugned notification, identical reliefs had earlier been sought for in another writ petition, which had already been dismissed on merits.

3. Calcutta High Court Restrains Man Registered With 'Alternate Medical Council' From Using Prefix ‘Doctor’, Orders Probe

Case Title: Dhirarastra Dutta Vs State of West Bengal and Ors.

Citation: 2023 LiveLaw (Cal) 188

The Calcutta High Court recently restrained an individual registered with the “Alternate Medical Council, Kolkata” from using the prefix ‘Doctor’ and directed the West Bengal Medical Council to investigate into issues concerning illegal and unauthorised handing out certificates of ‘registered medical practitioners’.

In holding that no individual could be certified as a ‘registered medical practitioner’ outside the rules as prescribed by the Indian Medical Council, a division-bench of Chief Justice T.S. Sivagnanam and Justice Hiranmay Bhattacharya held:

“The petitioner has flagged an important issue which directly impacts the general public…the allegation is against the 8th respondent who portrays himself as a doctor and uses the prefix “Dr” before his name, and is carrying out medical practise. In terms of earlier decisions of this Court, a person who does not possess the requisite qualification in terms of the Indian Medical Council Act, 1956, and whose name does not appear in the register of medical practitioner as contemplated in the aforesaid act, is not entitled to use the prefix doctor, or ‘Dr.’ Admittedly, the petitioner does not possess any medical degree from any recognised medical institution, but would refer to a certificate issued by the Alternate Medical Council, stating that he is registered as per the bye-laws of Bowbazar Society for Alternate Medicine as a registered medical practitioner in an [alternate] system of medicine. The institute of alternate medical sciences cannot award a degree or certificate recognising anyone as an RMP. Therefore, action to be taken against the [aforesaid] institute… The certificate clearly shows that it is a bogus institution, and on the basis of this certificate, the respondent cannot practise medicine in any form.”

4. Party’s Right To Choose Arbitrator Cannot Be Revived Once It Is Surrendered To Court U/S 11(6) Arbitration Act: Calcutta High Court

Case Title: Srei Equipment Finance Limited v. Seirra Infraventure Private Limited

Citation: 2023 LiveLaw (Cal) 189

The Calcutta High Court has recently held that when a party forfeits its right to appoint an arbitrator in accordance with Section 11 of the Arbitration & Conciliation Act, 1996 (“Arbitration act”), then it cannot subsequently “trace back its steps” to revive such a right, for the substitution of a fresh panel of arbitrators, when the existing arbitrator becomes de jure/de facto unable to discharge their duties.

In holding that the substitution of a new panel would be done by the Court under Sections 14 and 15 of the Arbitration Act, and that the entire arbitration process could not be permitted to go back to the stage of the parties conferring to appoint arbitrators mutually, under Article 11 of the Act, a single-bench of Justice Moushumi Bhattacharya held:

“After all, the intent of the 1996 Act, with all the amendments up to 2019, is to speed up the process of arbitration. The intent cannot be to retrace the steps from sections 15 to section 11 whenever an arbitrator is required to be substituted…The right to choose an arbitrator was relinquished in favour of the Court appointing an arbitrator which the Court did on 22.2.2022. The respondent cannot revive that right once the arbitrator became de jure / de facto unable to act under section 14. The above discussion must and invariably tilt towards the Court appointing new arbitrators in the same manner as was done on the previous occasion on 22.2.2022 when the parties approached the Court under Section 14 of the Act. There is no statutory basis to send the parties back to the section 11(5) position.”

5. State’s Duty To Compensate For Land Acquisition, Can’t Contend Landowner’s Right Forfeited Due To Delay In Approaching Court: Calcutta HC

Case Title: State of West Bengal & Ors. v. Asit Das & Ors. & connected appeals

Citation: 2023 LiveLaw (Cal) 190

Once government utilizes a person’s land, it is duty bound to follow land acquisition laws; why would the citizen who has been deprived of his property be required to approach the Court for seeking compensation, the Calcutta High Court said recently.

The remarks were made by division bench of Justice Arijit Banerjee and Justice Apurba Sinha Ray while dismissing multiple appeals preferred by the West Bengal government against orders of a Single-judge in 2017, directing the Land Acquisition Collector to compensate the respondent-landowners.

6. Hearing Of Interim Application U/S 9(1) Arbitration Act Not Barred By Constitution Of Arbitral Tribunal If Court Has Already ‘Entertained’ It: Calcutta HC

Case Title: Jaya Industries v Mother Dairy Calcutta & Anr.

Citation: 2023 LiveLaw (Cal) 191

The Calcutta High Court has recently held that that the power of a Court to continue hearing an application for interim relief under Section 9(1) of the Arbitration and Conciliation Act, 1996, (“1996 Act”) would not be “fettered” under Section 9(3) after the constitution of an arbitral tribunal, if the court has already entertained the application.

A single-judge bench of Justice Moushumi Bhattacharya held, that while Section 9(3) barred the Court from taking up any interim application after the due constitution of the arbitral tribunal, the same could not fetter the power of a Court to continue hearing an application, which it had already entertained prior to constitution of such a tribunal.

OTHER DEVELOPMENTS

1. Panchayat Elections: Calcutta High Court Orders DIG To Investigate Allegation Of Nomination Paper Being Filed By Candidate From Abroad

Case Title: Karimul Islam Molla and Anr. v State Of West Bengal And Ors

The Calcutta High Court directed the DIG, Crime Investigation Department, West Bengal, supervised by a Retired Judge of the Court, to carry out an investigation into the acceptance and scrutiny of nomination papers filed by a candidate from Minakha block, who was allegedly not present in India at the time of such filing, during the West Bengal Panchayat Elections 2023.

A single-bench of Justice Amrita Sinha, took exception to the fact that FIR in the matter had been filed against ‘unknown persons’, even though the nomination was submitted in-person and the entire process had been videotaped.

2. Calcutta High Court Seeks WB Forest Authority's Response Over Death Of Pregnant Elephant During Translocation

Case Title: Roibat Banerji V State Of West Bengal And Ors.

The Calcutta High Court directed the Forest Department, Government of West Bengal to file a report in a plea concerning the death of a pregnant elephant during the process of translocation from one district to another.

In taking up the concerns raised by the petitioner, an advocate claiming to be an eye-witness to the incident, a Bench of Chief Justice T.S. Sivagnanam and Justice Hiranmay Bhattacharya ordered:

“The matter concerns an ‘allegedly rogue elephant’ which was tranquilized and thereafter it died. According to the petitioner, the forest department did not follow the settled norms on the transport of animals, which led to the death. Therefore, a writ petition has been filed seeking varied reliefs. Government counsel, and Chief Wildlife Warden & Conservator, Govt of West Bengal have appeared in the matter. In order to consider the relief which, the petitioner would be entitled to, it is necessary that a detailed report be filed by the 4^th respondent, with regard to the allegations made in the petition. Upon filing such report in form of an affidavit, the court will consider the further order to be passed in the matter.”

3. Calcutta High Court Restores Plea Challenging 'Drum Beating', 'Public Slaughtering' Of Animals During Muharram

Case Title: Shagufta Sulaiman v State Of West Bengal And Ors

The Calcutta High Court has allowed the restoration of a plea challenging the acts of "drum-beating" and "public-slaughtering" of animals during Muharram.

A division bench of Chief Justice T.S. Sivagnanam and Justice Hiranmay Bhattacharya noted that guidelines for celebration of festivals in a peaceful and cooperative manner have already been issued by several benches of the High Court, but nonetheless allowed the petitioner to plead her case on the next date for hearing.

It was argued by the petitioner that in this case, drum-beating was being used as a tool for public nuisance by ‘politically motivated goons’ who intended to disturb those in the area.

4. Calcutta High Court Refuses To Initiate Suo Moto Contempt Against Abhishek Banerjee For Allegedly Scandalous Remarks About Judiciary

The Calcutta High Court refused to take suo moto cognizance of allegedly incendiary remarks made by AITC MP Abhishek Banerjee against the judiciary.

A bench of Chief Justice T.S. Sivagnanam and Justice Hiranmay Bhattacharya suggested Senior Advocate Bikash Ranjan Bhattacharya, who had made an urgent mentioning, to approach the larger bench which is already hearing a contempt case in relation to agitation and circulation of defamatory posters against Justice Rajasekhar Mantha.

Bhattacharya implored the Court to initiate immediate suo moto contempt action in order to protect its dignity and majesty, which was being “dragged into the dirt”.

5. Justice Gaurang Kanth Sworn In As Judge Of Calcutta High Court

Justice Gaurang Kanth has been sworn in as a Judge of the Calcutta High Court. Chief Justice TS Sivagnanam administered the oath of office.

The Central Government had notified his transfer from the Delhi High Court pursuant to the Supreme Court Collegium's recommendation. On July 12, the Collegium rejected his request for transfer to Madhya Pradesh High Court or Rajasthan High Court or any other neighbouring State.

Justice Gaurang Kanth in his address reflected on the legacy of the Calcutta High Court and vowed to uphold its majesty. He also expressed gratitude towards his family, as well as his colleagues on the Bench, and the members of the Court.