Rajasthan High Court Weekly Roundup: January 24 To January 30, 2022

1. Contempt Proceedings Not Maintainable If Two Interpretations Are Possible & Impugned Action Is Not Contumacious: Rajasthan High Court

Case Title: Anupama Singh v. Badri Narayan Sharma & Ors.

Citation: 2022 LiveLaw (Raj) 33

The Rajasthan High Court, Jaipur Bench has observed that a contempt proceeding would not be maintainable, if two interpretations are possible, and if the action in question is not contumacious.

The judgment was delivered in the contempt plea filed for non-compliance of court's order which granted appointment and consequential benefits to the petitioner, a female health worker.

Justice Sudesh Bansal, ruled,

"It is not in dispute that as far as directions to allow the petitioner to join services as Female Health Worker had already been complied with and further according to the respondents, the consequential benefits flowing pursuant to the order of appointment of petitioner dated 08.07.2000 have also been accorded vide order dated 25.10.2011".

2. Rajasthan High Court Upholds Section 54 CGST Act Pertaining To Tax Refund

Case Title: M/s Triveni Electrodes v. Union Of India and Ors.

Citation: 2022 LiveLaw (Raj) 34

The Rajasthan High Court, Jaipur Bench has upheld the vires of Section 54 of the Central Goods and Services Tax Act, 2017 and Rajasthan Goods and Services Tax Act, 2017. The same pertains to Refund of tax.

Noting that the Supreme Court has already upheld the vires of the statutory provision in question, the division bench comprising Chief Justice Akil Qureshi and Justice Sameer Jain, observed,

" We may note one development, namely, that the Supreme Court in the Union of India and others Vs. VKC Footsteps India Pvt.Ltd. , has upheld the vires of the statutory provisions under consideration. That being the situation, the petitioner's challenge to the statutory provisions must come to an end ".

3. Insurer Liable To Indemnify Compensation To Third Party In Case Of Breach Of Policy Conditions, May Recover From Insured Later: Rajasthan High Court

Case Title: United India Insurance Company Ltd v. Smt Soniya

Citation: 2022 LiveLaw (Raj) 35

The Rajasthan High Court, Jaipur upheld the decision of Motor Accident Claims Tribunal (MACT), Alwar which, while relying on the 'principle of pay and recover', directed the insurance company to first pay compensation to the claimants and then recover the same from the vehicle owner.

Justice Sudesh Bansal, observed, "Insurance Company has miserably failed to prove that the declaration of cancellation/ nullifying the driving licence of the Driver was ever brought to the knowledge of the owner of vehicle and it is not proved that the owner was guilty of negligence in not following the due care and caution to fulfil the conditions of the insurance policy, therefore, the Tribunal has not committed any error of law in following the principle of "pay and recover".

4. Defence's Burden To Prove Plea Of Insanity Is Only To Establish Preponderance Of Probability, Not Beyond All Manner Of Doubt: Rajasthan HC

Case Title: Mohan Lal S/o Okha Ram v. State

Citation: 2022 LiveLaw (Raj) 36

The Rajasthan High Court observed that the burden on the defence to prove the plea of insanity is only to the extent of establishing the same by preponderance of probabilities and such a defence need not be proved beyond all manner of doubt.

The observation was made while hearing an appeal under Section 374(2) Cr.P.C against the judgment of the trial court, whereby appellants were convicted and sentenced with life imprisonment.

A division of Justice Sameer Jain and Justice Sandeep Mehta, observed,

"It is clear that the burden on the defence to prove the plea of insanity is only to the extent of establishing the same by preponderance of probabilities and such a defence need not be proved beyond all manner of doubt. Thus, the conclusion drawn by the trial court that the defence failed to prove that the accused was affected with such mental ailment, which prevented him from understanding the consequences of his acts, is totally unjustified".

5. Candidate Expecting A Divorce Decree Can't Seek Reservation Under 'Divorcee Female' Category: Rajasthan High Court

Case Title: Parul Khurana v. The High Court of Judicature for Rajasthan & Anr.

Citation: 2022 LiveLaw (Raj) 37

The Rajasthan High Court observed that there is nothing in law that permits a candidate to apply in the 'Divorcee Female' category in the expectancy that a divorce decree would be granted by the Court.

A division bench of Justice Vinod Kumar Bharwani and Justice Sandeep Mehta, observed,

"For a person, applying in the said category, the status of being divorced was imperative. There is nothing in law which can permit a candidate to apply in the said category in the expectancy that a decree would be granted".

The petitioner had filed a writ petition assailing the notice whereby her candidature was rejected as she did not possess the decree of divorce on the last date of submission of the online application form for the post of Stenographer Grade-III (Hindi and English) in the District Courts and the District Legal Services Authorities.

7. Akin To Power To Issue & Serve Summons Under Order V CPC: Rajasthan High Court Upholds Constitutionality Of S.70 Rajasthan GST Act 2017

Case Title: M/s S.k. Metal v. Assistant Commissioner, B II Enforcement Wing II, Department Of Commercial Taxes

Citation: 2022 LiveLaw (Raj) 38

The Rajasthan High Court has dismissed a plea challenging the vires of Section 70 of Rajasthan GST Act, 2017 which provides for Power to summon persons to give evidence and produce documents.

After perusing the provision, the division bench of Chief Justice Akil Kureshi and Justice Sameer Jain ruled,

" The provision thus while empowering the proper officer to summon a person to give evidence or to produce documents, controls such exercise of powers by providing that the summons may be issued where a proper officer considers it necessary that such person is required to give evidence or to produce certain documents. These powers are not thus unguided or uncanalised."

The court recalled that Section 14C of the Central Excise Act and Section 108 of the Customs Act contain similar provisions authorizing the appropriate officer with the power to summon attendance of a witness for recording statement or for production of documents.

8. Rajasthan HC Dismisses Doctors' Appeal To Shift The Cut-Off Date To Consider Their Experience Of Service In PG Medical Courses

Case Title: Dr. Neha Choudhary v. State of Rajasthan

Citation: 2022 LiveLaw (Raj) 39

A division bench of Rajasthan High Court dismissed an appeal filed by several doctors directing the respondent authorities to consider their experience of service in Government hospitals of remote and difficult areas till 31.10.2021, instead of 30.09.2021.

Chief Justice Akil Kureshi and Justice Sameer Jain, observed, "The policy of the State is to grant incentive. No candidate has a vested right to claim such incentives, that too dehors the State policy. Such cut off date cannot be kept fluctuating. The date of counselling would depend on several factors. The suggestion that experience gained by the candidate right till the first date of counseling is therefore not acceptable. There is yet another angle to this issue."

The court opined that grant of incentive itself is a policy matter and based on the discretion of State authorities and any extension for considering the experience is also part of such discretionary exercise of the powers. The court added that unless it is shown that such discretion is exercised arbitrarily or malafidely this Court would not interfere in such policy matters.

9. Rajasthan Judicial Services: High Court Dismisses Plea Challenging Answer Key Of 2021 Prelims Exam

Case Title: Ashwini Chaturvedid v. High Court Of Judicature For Rajasthan, Jodhpur, Through Its Registrar General

Citation: 2022 LiveLaw (Raj) 40

The Rajasthan High Court has dismissed a plea challenging the final results of the Civil Judge Cadre of Rajasthan Judicial Services (Preliminary Examination).

The exam was conducted on 28.11.2021 and the final result for the same was declared on 11.01.2022.

The present plea was filed by one Ashwini Chaturvedi. She had challenged the administration's decision on the correct choice in relation to question No.80 and its decision to delete question No.81, through which the petitioner missed out clearing the RJS preliminary examination's cut-off only by 1 mark.

A division bench of Justice Akil Kureshi and Justice Madan Gopal Vyas, observed,

" We do not think that the petitioner has made out any case for interference. As is well settled through series of judgments of the Supreme Court, interference by the High Court in specialized fields where recruitment is being made through specialized agencies, should be the minimum."

10. Rajasthan High Court Quashed Notices Issued by the Assessing Officers U/S 148 of the Income Tax Act, 1961 for Reopening Assessments for Various Assessment Years

Case Title: Sudesh Taneja v. Income Tax Officer, and connected matters

Citation: 2022 LiveLaw (Raj) 41

Providing relief to a batch of petitioners, the division bench of Rajasthan High Court quashed notices issued by the Assessing Officers under section 148 of the Income Tax Act, 1961 (Act of 1961) for reopening assessments for various assessment years.

The petitioners have also challenged portions of two notifications issued by CBDT clarifying that provisions of Sections 148, 149 and 151 of the Act as on 31.03.2021 shall apply for the purpose of issuance of notice under Section 148 for the past period. According to the petitioners, this explanation is beyond the jurisdiction of CBDT.

Chief Justice Akil Quresh and Justice Sameer Jain ruled, "A notice which had become time barred prior to 01.04.2021 as per the then prevailing provisions, would not be revived by virtue of the application of Section 149(1)(b) effective from 01.04.2021. All the notices issued in the present cases are after 01.04.2021 and have been issued without following the procedure contained in Section 148A of the Act and are therefore invalid."

Other Important Updates

1. Rajasthan High Court Confers Senior Designation On 26 Advocates; Only 1 Woman Finds Place In The List

The Rajasthan High Court has conferred senior designation on 26 Advocates in exercise of the powers conferred under Section 16(2) of the Advocates Act, 1961 and the Rajasthan High Court (Designation of Senior Advocates) Guidelines- 2019.

The list comprises of only one women Advocate, i.e. Gayatri Rathore, who is designated from Jaipur Bench.

Moreover, 11 Advocates are from the Principal Bench of Jodhpur, while 15 Advocates are from Jaipur Bench.

2. Rajasthan HC Issues Notice On Plea Challenging MCI Mandate On Foreign Medical Students To Undergo Minimum 54 Months Education

Case Title: Samriddhi Saraswat v. National Medical Commission

The Rajasthan High Court, Jaipur Bench, has issued notice on a plea challenging regulations of the Medical Council of India (MCI) for foreign medical students, requiring them to compulsorily undergo minimum 54 months medical education for grant of permanent registration in India.

A division bench of Chief Justice Akil Kureshi and Justice Sameer Jain were hearing the plea filed by one Samriddhi Saraswat, who is pursuing a medical course in an institution situated in Philippines. She claimed that her institution is recognized as per Section 39 of the National Medical Commission Act, 2019.

Medical Council of India has now framed regulations, namely of National Medical Commission (Foreign Medical Graduate Licentiate) Regulations, 2021, in which regulation 4 provides inter-alia that no medical graduate shall be granted permanent registration unless he has undergone a course leading to foreign medical degree with minimum duration of 54 months.

3. COVID-19: Rajasthan High Court, Subordinate Courts, Special Courts & Tribunals To Continue Functioning Through Virtual Mode Till 5 Feb

Amidst the rising threat of the third wave of Covid-19, the Rajasthan High Court has further extended its decision of functioning of its Principal Bench and Jaipur Bench only through virtual mode till 5 February 2022.

In addition, the Registrar General of the Rajasthan High Court also issued a circular notifying the extension of virtual hearing at Subordinate Courts, Special Courts and Tribunals in Rajasthan till 5 February 2022.

The circular reads,

"Considering the prevailing situation and spread of Covid-l9, for safety and security of aII concerned, it is hereby notified that aII the Subordinate Courts/Special Courts/Tribunals shall continue to function only through virtual mode till 05.02.2022 in terms of Circular No. 03/P.I./2022 dated 11.01'2022."

Case Title: Pratip Chadhuri S/o Shri Pramada Nath Chaudhuri v. State of Rajasthan

The Rajasthan High Court has stayed criminal proceedings against former SBI Chairman Pratip Chaudhuri, pending before the Chief Judicial Magistrate, Jaisalmer in connection with the Loan Scam Case.

Chaudhuri was arrested in November last year by the Jaisalmer Sadar Police from his house in Delhi. The arrest relates to seizure of two hotels of the Godawan Group by SBI during Chauhuri's tenure over non-repayment of Rs. 24 Crore loan, and their subsequent loan to Alchemist ARC company, which he joined as Director after his retirement.

The trial court took cognizance against the petitioner and other co-accused persons for the offences under Sections 420, 409 read with Section 120-B IPC.