Rajasthan High Court Monthly Digest: July 2022

Sumit Singhal v. State, Through Advocate General, Govt. Of Rajasthan, Jodhpur 2022 LiveLaw (Raj) 202

Gurjant Singh v. Smt. Amarjeet Kaur & Anr. 2022 LiveLaw (Raj) 203

Vimlesh Bansal v. Ashok Kumar 2022 LiveLaw (Raj) 204

Kamal Chand Bothra Versus Union Of India 2022 LiveLaw (Raj) 205

Baker Hughes Asia Pacific Limited Vs Union of India 2022 LiveLaw (Raj) 206

Dr. Mahesh Chandra Sharma & Ors. v. State of Rajasthan & Ors. 2022 LiveLaw (Raj) 208

Amit Kumar Sharma v. Union Of India & Ors. 2022 LiveLaw (Raj) 209

Judgments/ Orders of the Month

High Court Not Bound To Invite Bar's Views While Deciding Criminal Reference U/S 395 CrPC: Rajasthan HC

Case Title: Sumit Singhal v. State, Through Advocate General, Govt. Of Rajasthan, Jodhpur

Citation: 2022 LiveLaw (Raj) 202

The Rajasthan High Court has observed that Section 395 of CrPC, which makes provision for criminal reference, does not obligate the court to invite the views of the members of the Bar before answering such reference and that notifying the members of the Bar regarding same is purely the discretion of the court to be exercised as a matter of prudence.

The court clarified that such a course of action is adopted just in order to seek independent views from the members of the bar for the assistance of the court.

As per Section 395 (1) CrPC, a reference involving validity of any Act, Ordinance or Regulation or of any provision contained therein can be referred to the High Court by a court subordinate to it and the referral court would then be required to answer the reference.

Also Read: Application Cast Serious Aspersions On Court, Riddled With Language Errors: Rajasthan High Court Imposes 50K Cost On Advocate

[Order XVI Rule 1&2 CPC] Trial Court Required To Ascertain Only "Prima-Facie" Relevancy Of Proposed Witnesses: Rajasthan High Court

Case Title: Gurjant Singh v. Smt. Amarjeet Kaur & Anr.

Citation: 2022 LiveLaw (Raj) 203

The Rajasthan High Court has observed that trial Court is required to prima-facie ascertain the relevancy and requirement of the proposed witnesses while deciding an application for summoning of witnesses in terms of Order XVI Rule 1 and 2 of the Code of Civil Procedure.

The court however made it clear that the applicant may be called upon only to show the relevance or need of such witness(es) but he/ she cannot be asked to establish or prove such requirement; The requirement has to be determined by the Court.

Order XVI Rule (1) and (2) of the CPC in unequivocal terms provide that the court suo moto or on an application, can issue summons to a witness to appear in the court. Further, Sub-rule (2) of Rule 1 of the Order XVI enjoins upon the party desirous of getting a summon issued to a witness to state in its application the purpose for which the witness is proposed to be summoned.

When Termination Of Arbitral Proceedings For Non-Appearance Of Parties, Remain Unchallenged, Application Filed Again For Appointment Of Arbitrator Not Maintainable: Rajasthan High Court

Case Title: Vimlesh Bansal v. Ashok Kumar

Citation: 2022 LiveLaw (Raj) 204

Case No.: S.B. Arbitration Application No. 51 of 2022

The Rajasthan High Court has held that a second arbitration application would be non-maintainable when the order of the arbitrator terminating arbitral proceedings under Section 32(2)(c) was not challenged under Section 14(2) of the A&C Act.

The Single Bench of Justice Pankaj Bhandari held that the legal maxim 'Vigilantibus Non-Dormientibus Jura Subveniunt' which means that 'the law assists only those who are vigilant and not those who sleep over their rights' would squarely apply to a situation where the petitioner slept over its right to challenge the order of termination but filed a second application for appointment of arbitrator.

Rajasthan High Court Grants Bail To Person Accused Of GST Evasion

Case Title: Kamal Chand Bothra Versus Union Of India

Citation: 2022 LiveLaw (Raj) 205

Case No.: S.B. Criminal Miscellaneous Bail Application No. 8954/2022

The Rajasthan High Court bench of Justice Narendra Singh Dhaddha has granted bail to the person accused of GST evasion of Rs. 8.64 crore.

The petitioner has filed a bail application. The petitioner was charged with the offence punishable under Section 132 (1) of the Central Goods and Services Tax Act, 2017.

The petitioner submitted that he had been falsely implicated in the case. He has been behind bars since May 26, 2002. The offence against the petitioner is compoundable and he had deposited the amount of Rs. 87 lakhs. The maximum punishment is 5 years, and the conclusion of the trial may take a long time.

The department contended that the petitioner had evaded GST of Rs. 8.64 crores. The statements under Section 70 of the GST Act were recorded and are admissible in evidence. The petitioner is a habitual offender, so bail should be dismissed.

The court directed that the petitioner be released on bail provided he furnishes a personal bond in the sum of Rs.50,000 with two sureties of Rs.25,000 each.

GST Circular Contra To GST Act, Can't Deny The Claim For ITC refund; Rajasthan High Court

Case Title: Baker Hughes Asia Pacific Limited Vs Union of India

Citation: 2022 LiveLaw (Raj) 206

Case No.: D.B. Civil Writ Petition No. 5714/2021

The Rajasthan High Court has held that the GST circular dated 31.03.2020, repugnant to the parent legislation, cannot be applied to oust the legitimate claim for an accumulated ITC refund.

The division bench of Justice Sandeep Mehta and Justice Vinod Kumar Bharwani has observed that the supplying dealer would be entitled to claim a refund of accumulated unutilised tax credit under Section 54 (3) (ii) of the CGST Act irrespective of the fact that the input and output supplies are the same by ignoring the circular dated 31.03.2020.

Asaram Bapu Rape Case: Rajasthan High Court Denies Bail, Rejects Third Application For Suspension Of Sentence

Case Title: Asharam @ Ashumal v. State Of Rajasthan, Through PP

Citation: 2022 LiveLaw (Raj) 207

The Rajasthan High Court has rejected the third application filed by self-styled godman & life convict Asaram Bapu seeking suspension of sentence for rape of a minor. The court further opined that he does not deserve indulgence of bail.

Asaram was convicted and sentenced to life for offences under Sections 370(4), 342, 506, 376(2)(f) and 376D of the Indian Penal Code by a Special POCSO Court at Jodhpur in April 2018.

The court also noted that two previous applications for suspension of sentences filed on behalf of Asaram have been dismissed by the court after arguments had been advanced to some extent albeit by way of withdrawal. It further noted that Asaram continues to be in custody in another trial ongoing at Gujarat, for similar offences.

A division bench of Justice Sandeep Mehta and Justice Vineet Kumar Mathur, observed,

"In wake of the discussion made hereinabove; looking to the nature and gravity of the allegations, and considering the fact that the appeal itself is ripe for hearing, we are of the opinion that the appellant does not deserve indulgence of bail. Hence, the instant application for suspension of sentences is rejected as being devoid of merit."

State Can't Discriminate Between Allopathic & Ayurvedic Doctors In Fixing Retirement Age: Rajasthan High Court

Case Title: Dr. Mahesh Chandra Sharma & Ors. v. State of Rajasthan & Ors.

Citation: 2022 LiveLaw (Raj) 208

While hearing a batch of writ petitions challenging different age of superannuation for Allopathic Doctors vis-a-vis Ayurvedic Doctors, the division bench of Rajasthan High Court observed that Ayurvedic Doctors are entitled to continue in service till completion of age of 62 years, which is applicable in the case of Allopathic Doctors.

Reliance was placed on the Supreme Court's decision in North Delhi Municipal Corporation vs. Dr. Ram Naresh Sharma & Ors. LL 2021 SC 346. The court opined that the Supreme Court has left no scope for arguments on the part of the respondents to defend their action of discrimination in the matter.

During the course of hearing, the court was informed that the age of superannuation of Allopathic Doctors was enhanced from 60 to 62 years w.e.f. 31.03.2016. The court noted that some of the petitioners are still working, while some of the petitioners have retired after attaining the age of 60 years after the issuance of notification.

Rajasthan High Court Upholds Termination Of Employee Who Obtained Compassionate Appointment By Concealing Criminal Cases Pending Against Him

Case Title: Amit Kumar Sharma v. Union Of India & Ors.

Citation: 2022 LiveLaw (Raj) 209

The Rajasthan High Court recently upheld termination of an employee who obtained compassionate appointment by concealment of facts. The petitioner was not able to give details of criminal cases pending against him allegedly on account of paucity of space in attestation form.

The court observed that the petitioner failed to give due details and therefore, violated Clause-2(n) of the appointment letter and also suppressed the information. The court opined that the tribunal has duly considered said violations and suppression on the part of the petitioner.

Essentially, the petitioner was given appointment on the post of LDC on compassionate grounds on 24.12.2012. As per him, under Clause-13 of the Attestation form, he had disclosed all information, except Clause-13(J), wherein on account of paucity of space, he was not able to give details of criminal cases pending against him. On account of said concealment, respondents issued show cause notice which reflected that two criminal cases were pending against the petitioner. The petitioner's representation was also rejected and termination order was passed. Later, CAT, Jaipur Bench upheld the termination order holding that it was not against the Rules, that there is no allegation of mala-fides and natural justice was adhered to by the respondent. Being aggrieved against the same, present petition was filed.

Other Important Updates

Can Municipal Corporation Levy Urban Development Tax & Fire Cess Over Railway Properties? Rajasthan High Court Issues Notice

Case Title: Taleda Sqaure Pvt. Ltd. v. State of Rajasthan

The Rajasthan High Court has issued notice on a plea challenging levy of Urban Development Tax and Fire Cess/Tax by the Ajmer Municipal Corporation, Ajmer over the properties owned by the Ministry of Railways through Rail Land Development Authority.

Justice Pankaj Bhandari and Justice Sameer Jain, observed,

"Issue notice to the respondents, returnable within two weeks. Additionally, extra sets are permitted to be served upon Additional Solicitor General and the concerned Additional Advocate General."

Rajgarh Temple Demolition: Rajasthan High Court Grants Arnab Goswami 10 Days To Respond To State's Application For Commencement Of Investigation

Case Title: Arnab Goswami v. State of Rajasthan & Ors.

Republic TV Chief and anchor, Arnab Goswami, who has been booked by the Rajasthan Police for promoting enmity between religious groups through a broadcast regarding alleged temple demolition in Rajgarh, has been granted 10 days' time to respond to an application seeking commencement of investigation.

The Rajasthan High Court asked Goswami to respond to State's application seeking vacation of interim protection granted to him and liberty to commence investigation in the matter.

The court had granted him interim protection in May, restraining the authorities from arresting him.

Yesterday, the Court asked Goswami to respond to State's application by July 19 and extended protection until then.

Essentially, the FIR was registered at Ambamata Police Station, Udaipur on 17.05.2022 against Arnab Goswami along with other persons of Republic Bharat under Sections 153A, 295A, 120B, 499, 501, 504 & 505 of the Indian Penal Code and other relevant sections of Information Technology Act, 200 read with N.S.A. Act.

Levy Of GST On Mining Royalty: Rajasthan High Court Grants Interim Protection To Petitioners

Case Title: Shree Basant Bhandar Int Udyog v. Union of India

The Rajasthan High Court has granted stay on recovery of GST on royalty paid by the Petitioners on mining activity.

The order comes in a bunch of writ petitions filed primarily involving the issue of permissibility of raising demand of GST on royalty. The petitioners in these petitions challenged the notifications whereby, royalty paid by them on mining activity is being subjected to GST and/or notices issued for alleged incriminating discrepancies in returns after scrutiny and analogous proceedings.

Earlier, on 21.04.2022, the High Court in the case of Shree Basant Bhandar Int Udyog v. Union of India [2022 LiveLaw (Raj) 146], had restrained the GST department from recovering GST on royalty paid on account of the excavation of sand for brick.

Notably, on 17.12.2021, this court in M/s Shivalik Silica v. Union of India & Ors. [D.B. Civil Writ Petition No.14849/2021] examined the issue of service tax on royalty, and held that this issue is already decided against the assessee in Udaipur Chambers of Commerce & Industry Vs. Union of India [2018 (8) G.S.T.L. 170 (Rajasthan)]. Moreover, the same controversy is under consideration under the 9-judge bench of the Supreme Court in Mineral Area Development Authority etc. v. M/s. Steel Authority of India and Ors., whereby, the Supreme Court has stayed payment of service tax for grant of mining lease/royalty.

Rajasthan HC Grants Interim Protection From Arrest To Advocate's Clerk Who Forwarded Provocative WhatsApp Message After Udaipur Killing

Case Title: Vikram Singh v. State Of Rajasthan, Through Principal Secretary & Ors.

The Rajasthan High Court has granted protection from arrest to an Advocate's clerk, who forwarded a WhatsApp message stating that "in Udaipur religious war has started, bravo finish the pigs".

The petitioner has sought for quashing of FIR registered on information of respondent-Nadim Kadir for offences punishable under Sections 295A and 153A of the IPC. He further sought protection of his life and liberty.

The counsel for the petitioner submitted that the aforesaid message was a "forwarded" message and by mistake, it was sent to the group of "advocate's clerk". He added that the petitioner deleted the message, pleaded sorry and asked for pardon. He further submitted that nothing happened due to the aforesaid WhatsApp message and hence, the offences alleged are not made out.

The court directed the state to ensure protection to the life and liberty of the petitioner and his family which, as per the court, cannot be at stake otherwise than due procedure established by law.

Justice Birendra Kumar, observed,

"In the meantime, petitioner shall not be arrested in the aforesaid FIR till further order with condition that petitioner shall fully cooperate with the investigation of the case."

Can Govt Levy GST On Royalty? Rajasthan High Court Asks Advocate General Amid Conflicting Views, Hearing Tomorrow

Case Title: M/s. Shri Kalyan Marbles v. The Union Of India & others

The Rajasthan High Court, Jaipur has requested the Advocate General to address the court in a plea challenging imposition of GST on royalty, amid conflicting orders from two division benches of the court.

During the course of hearing, Adv. Abhay Singla appearing on behalf of the petitioner informed that a writ petition involving the same issue in M/s Shivalik Silica Versus Union of India & Others was earlier dismissed by a Division Bench of Jaipur Bench on 17.12.2021. Subsequently in Shree Basant Bhandar Int Udyog Versus Union of India, a bunch of writ petitions were entertained by the Principal Bench at Jodhpur on the same issue and notices were issued and thereby an interim order was passed on 05.07.2022.

Considering the aforesaid aspect, division bench comprising Justice Manindra Mohan Shrivastava and Justice Shubha Mehta, observed,

"Taking into consideration the aforesaid aspect, we would request the Learned Advocate General to address the Court on the issue."

Rajasthan High Court Issues Notice On PIL To Remove Words 'Baanjh', 'Parityakt', 'Nirashrit' Used For Women In Govt Schemes

Case Title: Kunal Rawat v. State of Rajasthan & Ors.

The Rajasthan High Court at Jaipur has issued notice on a public interest litigation seeking directions to the government to change the terminology like 'Baanjh', 'Parityakt', 'Nirashrit' used for women in different schemes.

The present public interest litigation has been filed by Kunal Rawat.

A division bench of Chief Justice S.S. Shinde and Justice Anoop Kumar Dhand, observed, "Issue notice to the respondents, returnable on 27.07.2022. In addition, 'dasti' service is permitted."

The court also granted liberty to the counsel appearing for the petitioner to serve Standing Counsel for the respective respondents.

Rajasthan Royals Owes ₹6.9 Crore To Over 850 Police Officials Deployed During 2011 IPL Matches: Amicus Curiae To Rajasthan High Court

Case Title: Suo Motu v. State Of Rajasthan

In the case pertaining to Rajasthan Royals' failure to pay over 850 police officials who were deployed during 2011 Indian Premier League (IPL) matches, amicus curiae Abhishek Sharma has informed the High Court that the dues add up to Rs.6,98,86,753/-, and there is no compliance by the franchise cricket team.

Sharma stated that the aforesaid amount was payable by the Franchise to the State under an agreement, however, the same has not been deposited yet.

A division bench comprising Chief Justice SS Shinde and Justice Anoop Kumar Dhand has granted some more time to the counsel appearing for RR to seek instructions in the matter.

Child Labour: Rajasthan High Court Issues Notice To Centre On PIL To Institutionalise Rescue & Rehabilitation Mechanism

Case Title: Gopal Singh Bareth v. State Of Rajasthan

The Rajasthan High Court has permitted impleadment of the Centre's Labour Department in a PIL seeking to institutionalise a 'rescue and rehabilitation mechanism' for all child labourers in the State.

A Division Bench comprising Chief Justice SS Shinde and Justice Anoop Kumar Dhand allowed the application filed by petitioner, Advocate Gopal Singh Bareth. It ordered,

"Petitioner who appears in person prays for leave to amend the petition so as to implead the concerned department of the Central Government as party-respondent. Leave granted. Issue notice to the newly added respondents, returnable on 02.08.2022."

Earlier, the Court had sought for a firm and concrete action plan from the state to curb child labour activities. During the course of hearing on Wednesday, Advocate General M.S. Singhvi invited the court's attention to the various compliance reports and assured that further consolidated compliance report, including steps taken, if any, in respect of rehabilitation will be incorporated in the affidavit to be filed.

Rajasthan High Court Issues Notice On Law Student's PIL Seeking Directions To Stop Sale, Use, Consumption & Possession Of E-Cigarettes

Case Title: Priyansha Gupta v. Union Of India

The Rajasthan High Court at Jaipur has issued notice on a public interest litigation seeking directions to the central and state governments to effectively implement the provisions of Prohibition of Electronic Cigarettes (Production, Manufacture, Import, Export, Transport, Sale, Distribution, Storage, and Advertisement) Act, 2019 and to stop sale, use, consumption, possession of e-cigarettes.

The PIL was filed by Priyansha Gupta, a fourth-year law student at School of Law, Bennett University. The petitioner stated that she has conducted exhaustive research and has thoroughly examined the actions taken by the State to eradicate the problem of the usage of electronic cigarettes in the country.

A division bench comprising Chief Justice S.S. Shinde and Justice Anoop Kumar Dhand, observed,

"Heard petitioner in person. Issue notice to the respondents, returnable on 29.07.2022. In addition, 'dasti' service is permitted."

"Ensure That Court Matters Aren't Delayed Unnecessarily": Rajasthan High Court To State's Pension Dept Over Delay In Filing Replies

Case Title: Mahendra Pal Singh v. State Of Rajasthan

The Rajasthan High Court directed state's Pension and Pensioners Welfare Department to take apposite steps to prevent delay in filing replies to judicial proceedings and ensure that the Court matters are not delay unnecessarily.

Justice Arun Bhansali made the observation while hearing the case of a retired Ward Boy of Ayurvedic Department whose pension was not released since more than one year due to huge backlog of cases before the Department.

During the course of hearing, the counsel for the Department informed that the Officer-in-Charge is not cooperating and/or rather misbehaving with him, despite repeated indications made to the respondents and specifically the Officer-in-Charge to ensure that the factual reports are submitted in time and that needful, as required is done.

Rajasthan High Court Issues Notice On PIL Requiring State To Deposit Central Govt Grants In Nationalized Banks Only

Case Title: Sunil Kumar Singh Advocate v. State of Rajasthan

The Rajasthan High Court has recently issued notice on a public interest litigation seeking directions to the state government to keep the grants and aid received from the Central Government in any of the nationalised Banks, instead of AU Small Finance Bank.

The plea filed by Advocate Sushil Kumar Singh states that it is matter of surprise as to why the State is not having faith in the nationalised Banks and depositing huge amount in the Private Bank. It added that if these Banks face losses, then the Central Government grant will also be in a "high risk zone".

Notices were issued by the division bench comprising Chief Justice S.S. Shinde and Justice Anoop Kumar Dhand.

The plea alleged that the Grant of Central Government amounting to Rupees 2,003 Crores has been deposited in the Bank of AU Bank instead of any nationalised Bank including the State Bank of India.

President Appoints Justice Manindra Mohan Shrivastava As Acting Chief Justice Of Rajasthan High Court

The Central Government has notified the appointment of Justice Manindra Mohan Shrivastava as the Acting Chief Justice of the Rajasthan High Court (as per Article 223 of the Constitution of India) with effect from August 2.

Justice MM Shrivastava, the senior-most Judge of the Rajasthan High Court, will be performing the duties of the office of the Chief Justice of the High Court consequent upon the retirement of Shri Justice Shinde Sambhaji Shiwaji, Chief Justice, Rajasthan High Court.