Calcutta High Court Monthly Digest: August 2024

Waqf Property Status Permanent, Mutawalli Leases Void Without Waqf Board Approval: Calcutta High Court

Case Title: M/S. HOOGHLY BUILDING & INVESTMENT COMPANY LIMITED AND ANOTHER VERSUS THE STATE OF WEST BENGAL AND OTHERS

Citation: 2024 LiveLaw (Cal) 180

The Calcutta High Court division bench of Chief Justice T.S. Sivagnanam and Justice Hiranmay Bhattacharyya has held that once a property is designated as Waqf, it remains so indefinitely. It held that Mutawalli cannot enter into a lease of Waqf property without prior approval from the Waqf Board.

Therefore, the bench held that any agreements or understandings, whether written or oral, regarding the property are entirely unauthorized by law and void from the outset.

Case: Nandalal Verma Vs. The State of West Bengal & Ors.

Citation: 2024 LiveLaw (Cal) 181

The Calcutta High Court has held that in hire-purchase agreements where a bank repossesses a vehicle and re-sells it due to a default by the vehicle's registered owner, the bank cannot be compelled to re-issue the vehicle's certificate of registration under Section 51(5) of the Motor Vehicles Act (MV Act).

[S.3(2) Trademarks Act] Associate Managers In Trademark Registry Not Empowered To Pass Quasi-Judicial Orders: Calcutta High Court

Case: Visa International Ltd. v Visa International Service Association & Anr.

Citation: 2024 LiveLaw (Cal) 182

The Calcutta High Court has held that associate managers appointed under Section 3(2) of the Trademarks Act cannot pass quasi-judicial orders since they were not empowered to do so by virtue of their appointment as contractual employees.

A single bench of Justice Krishna Rao held:

The Registrar dealing with an application under the Trade Marks Act is a quasi judicial and delegation of power under sub-section (2) of Section 3 is an administrative power and as such the Associate Managers appointed under sub-section 2 of Section 3 are not empowered to pass quasi judicial orders.

[S.306 IPC] Momentary Disagreement Leading Person To Resort To Extremities Cannot Be Termed As Abetment To Suicide: Calcutta High Court

Case: Joyeeta Saha & Anr. -Vs- The State of West Bengal

Citation: 2024 LiveLaw (Cal) 183

The Calcutta High Court has recently quashed a case for abutment to suicide against a wife who was alleged of inducing her husband to commit suicide by failing to inform him of her previous marriage,

In quashing the charges against her, a single bench of Justice Ananya Bandopadhyay held:

Human psychology and mental state cannot be generally equated which varies from person to person. Egregious act on the part of a person from intractable emotions, depressions cannot be perceived or fathomed. One can be frenzied or hysterical even on minute and momentary disagreement resorting to extremities which cannot be termed as an instigation, inducement or abetment to commit suicide.

Child Care Leave Should Be Given To Both Male And Female Govt Employees, Family Responsibilities Must Be Shared By Mother & Father: Calcutta HC

Case: Md. Abu Raihan Vs State of West Bengal & Ors.

Citation: 2024 LiveLaw (Cal) 184

The Calcutta High Court has directed that the benefit of child care benefit must be extended to both male and female employees and family responsibilities must be shared by the mother and the father.

In considering the case of a man who had two minor children and had lost his wife a few months ago, a single bench of Justice Amrita Sinha held:

"It appears that time has come when the Government should treat its employees equally without any discrimination between the male and the female employees. The responsibility of maintaining a family should be shared equally both by the mother and the father. Natural guardian of a Hindu minor under the Hindu Minority and Guardianship Act, 1956 in the case of a boy or an unmarried girl is the father and after him the mother. The Government should take a decision to extend similar benefit to the male employees as has been done in the case of the females...to erase discrimination."

Direction For Payment Of Mandatory Pre-deposit Doesn't Constitute 'Order' Within Meaning Of Sec 35G of Central Excise Act: Calcutta High Court

Case Title: Sashreek Constructors Private Limited vs. Customs, Excise and Service Tax Appellate Tribunal

Citation :2024 LiveLaw (Cal) 185

Taking note of Section 35G of the Central Excise Act, the Calcutta High Court clarified that an appeal shall lie to the High Court from “every order” passed in appeal by the Appellate Tribunal, though the maintainability thereof would be dependent on certain statutory limitations.

As per Section 35G of Central Excise Act, 1944, an appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal on or after the 1st day of July, 2003 (not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment) if the High Court is satisfied that the case involves a substantial question of law.

GST Registration Shall Not Be Cancelled For Non-Filing Of Returns If Taxpayer Is Not Found Adopting Dubious Process To Evade Tax: Calcutta High Court

Case Title: Pranabesh Sarkar versus Superintendent CGST & CX

Citation: 2024 LiveLaw (Cal) 186

While pointing out that the suspension/ revocation of license would be counterproductive and works against the interest of the revenue, the Calcutta High Court clarified that assessee in such a case would not be able to carry on his business in the sense that no invoice can be raised by the assessee and ultimately would impact recovery of tax.

Single Bench of Justice Raja Basu Chowdhury therefore set aside the order cancelling the registration of the assessee subject to the condition that the assessee files his returns for the entire period of default and pays requisite amount of tax and interest and fine and penalty, if not already paid.

West Bengal Customs Commissioner Has Jurisdiction Over West Bengal And Sikkim: Calcutta High Court Upholds Seizure

Case Title: Commissioner Of Customs (Preventive), West Bengal Versus Bangari Bhola And Others

Citation: 2024 LiveLaw (Cal) 187

The Calcutta High Court has upheld the seizure and held that the Commissioner of Customs (Preventive), West Bengal, has jurisdiction over the whole of the States of West Bengal and Sikkim.

The bench of Chief Justice T.S. Sivagnanam and Justice Hiranmay Bhattacharyya has observed that if the Commissioner of Customs (Preventive), West Bengal, exercises jurisdiction over the whole of the States of West Bengal and Sikkim apart from the Union Territory of Andaman and Nicobar Islands, it cannot be said that merely because in Clause 10, the Principal Commissioner of Customs (Airport and Air Cargo Complex), Kolkata has been given jurisdiction over Netaji Subhas Chandra International Airport, that would denude the jurisdiction of the Commissioner of Customs (Preventive), West Bengal.

No Independent Dispute Redressal Institution Recognised By Government In Kolkata, Parties Should Approach Court Under Section 11 For Appointment Of Arbitrator: Calcutta High Court

Case Title: Bhubaneshwari Seafood Private Limited And Anr. Vs Ugro Capital Limited

Citation: 2024 LiveLaw (Cal) 188

The Calcutta High Court bench of Justice Sabyasachi Bhattacharyya has held that SAMA, an Online Dispute Resolution (ODR) platform, is not an independent Dispute Redressal Institution duly recognized by the Government of India in Kolkata. Therefore, the bench held that party should approach the court for the appointment of an arbitrator in view of disagreement.

Calcutta High Court Declines To Issue Gag Order In Former RG Kar Principal Dr Sandip Ghosh's Plea Alleging Media Trial

Case: Dr. Sandip Ghosh & Anr. Vs. Union of India & Ors

Citaiton: 2024 LiveLaw (Cal) 189

The Calcutta High Court has refused to issue an order restraining media outlets from broadcasting news about former RG Kar principal Dr Sandip Ghosh, in a plea by the ex-principal alleging 'media trial.'

A single bench of Justice Shampa Sarkar declined Ghosh's plea while cautioning the media to avoid 'animated dramatization' and publish objective news instead of subjective opinion. The court said:

"The media ensures that the individuals (members of civil society) participate in a matter of national importance. In this case, the incident has attained a status of global importance. Thus, right to information would be fundamental in this case, as each and every member of civil society is severely affected by the incident either directly or indirectly."

Commercial Division Of High Court Can Hear Applications And Appeals Under The Arbitration And Conciliation Act, 1996 Filed On Original Side: Calcutta High Court

Case Title: M/S. Siemens Healthcare Private Limited Vs Sun Hospital And Ors.

Citation: 2024 LiveLaw (Cal) 190

The Calcutta High Court bench of Justice Sabyasachi Bhattacharyya has held that even if an application or appeal under the Arbitration and Conciliation Act, 1996 relating to a commercial dispute is filed on the Original Side of the High Court, the same can be heard and disposed by the Commercial Division of the High Court.

The bench held that:

“The language used in Section 10(2) is “shall”, which is mandatory and implies that even if an application is filed in the original Side of the High Court (without any distinction between Ordinary Original Civil Jurisdiction or Commercial Division), it would suffice if the same is heard and disposed of by the Commercial Division.”

Failure To Comply Provision Of Sec 75(4) Of CGST Act 2017 Vitiates Entire Order: Calcutta High Court

Case Title: Arup Mallick versus Commissioner, Commercial Taxes and State Tax, & Ors.

Citation: 2024 LiveLaw (Cal) 191

The Calcutta High Court held that failure to comply with statutory provision which mandates consideration of explanation on the part of assessee before passing adverse order, vitiates such order.

The High Court held so while considering that the petitioner was prevented from filing his response to the show cause notice, due to a reasonable cause.

Referring to Section 75(4) of the CGST/WBGST Act, 2017, Single Bench of Justice Raja Basu Chowdhury observed that “affording an opportunity of hearing is mandated where a request is received in writing from the person chargeable with tax, or penalty or where any adverse decision is contemplated against such person”.

Section 34 Challenge Unwarranted If Arbitrator's Judgment Is Well-Reasoned And Based On Evidence: Calcutta High Court

Case Title: Damodar Valley Corporation Vs BLA Projects Pvt. Ltd.

Citation: 2024 LiveLaw (Cal) 192

The Calcutta High Court bench of Justice Sabyasachi Bhattacharyya has held that if an Arbitrator's judgment is well-reasoned and backed by substantial evidence, there are no grounds to challenge it under Section 34 of the Arbitration and Conciliation Act, 1996.

The matter pertained to a dispute between BLA Projects Private Limited (the claimant/respondent) and Damodar Valley Corporation (DVC) (the petitioner). In the arbitration proceedings, BLA Projects claimed under seven heads, of which four claims were granted by the arbitrator. DVC's counterclaims on two counts were dismissed. Feeling aggrieved, the Petitioner approached the High Court and filed a challenge under Section 34 of the Arbitration and Conciliation 1996.

Mere Apprehension That Person Would Flee India Is Not Enough To Issue Look Out Circular: Calcutta High Court

Case Title: Vishambhar Saran -Vs.- Bureau Of Immigration & Ors.

Citation: 2024 LiveLaw (Cal) 193

The Calcutta High Court bench of Justice Shampa Sarkar has held that mere apprehension that a person would flee India and no steps could be taken to recover the money is not enough to issue a Look Out Circular (LOC) against him.

The matter pertained to a writ petition which was filed by an erstwhile Director of Visa Power Limited ("company in liquidation"). The Petitioner argued that he was never a whole-time director of the company, which is undergoing liquidation following an order issued by the National Company Law Tribunal (NCLT) in Kolkata. The company obtained credit facilities from a consortium of banks, with Punjab National Bank (PNB) as the lead bank. This credit was intended for setting up a thermal power project in Raigarh district, Chhattisgarh, sanctioned around March 2010. However, due to the Supreme Court's decision canceling coal blocks, the thermal plant could not be established and operationalized thwarting the project's goal to supply power to contractors given coal block allocations.

Calcutta High Court Quashes Ban On Football Supporters Entering Stadium With 'Tifo' Demanding Justice For RG Kar Rape-Murder Victim

Case: Mayukh Biswas vs State of West Bengal

Citation: 2024 LiveLaw (Cal) 194

The Calcutta High Court has set aside a state government order banning supporters of Mohun Bagan Football Club from entering the Salt Lake Stadium with a large 'tifo' protesting the rape and murder of a trainee doctor at RG Kar Medical College and Hospital, during their team's match.

A division bench of Justices Harish Tandon and Hiranmay Bhattacharya held:

These activities are acclaimed as the sports activities of enjoyment and amusement but also inculcating a sense of discipline and, therefore, the supporters by using 'TIFO' are more responsive and used it for showing support to the team or its members to encourage them in order to achieve the desired result as expected by the said supporters. 'TIFO' means a flag or picture held up by the supporters of a team in a football match and, therefore, those displays are made for a short period of time or at intervals. Obviously, the viewers while using those 'TIFO' are conscious of their fellow viewers and, therefore, there should not be an apprehension of the State in this respect.

Gathering For Lawful Purposes Should Not Be Restricted Without Imminent Threat To Public Order: Calcutta High Court

Case Title: Dr. Partha Biswas Vs. The State of West Bengal & Ors

Citation: 2024 LiveLaw (Cal) 195

The Calcutta High Court bench of Justice Rajarshi Bharadwaj has held that if a gathering is not intended for unlawful purposes, it should not be restricted at a public place unless there is an imminent threat to public order. Even in such situations, the High Court held that any restrictions imposed must be fair and reasonable with a balance between individual rights and public safety.

Dr. Partha Biswas (Petitioner), who serves as the Chief Coordinator of Mission Abhaya, a philanthropic organization, sought permission to hold a peaceful solidarity rally on August 28, 2024 at 2:00 P.M. The planned route of the rally is from College Square passing through Bidahan Sarani, and concluding at OP Bhandar Bus Stop near Shyambazar Five Points Crossing. However, the Joint Commissioner of Police (HQ), Kolkata, refused to grant permission for the event. Consequently, the Petitioner requested a directive from the High Court to compel the Joint Commissioner to approve the rally.

"Attempt To Intimidate Office Of Chief Justice": Calcutta High Court Dismisses PIL Seeking To Modify Judge's Roster, Imposes 50K Cost

Case: Sanjoy Das v Registrar General, Calcutta High Court

Citation: 2024 LiveLaw (Cal) 196

The Calcutta High Court has dismissed a PIL seeking to modify a judge's roster due to allegations of conflict of interest, with exemplary costs of Rs 50,000. The Court also debarred the litigant from filing a PIL ever again, by invoking the Calcutta High Court Appellate Side Rules.

Advocate Sanjoy Das, the petitioner, sought to change the determination of Justice Amrita Sinha's bench hearing matters of police inaction, by claiming that since the West Bengal CID was investigating Justice Sinha's husband for allegedly using his spouse's office to influence a probe, her determination over police matters would not inspire public confidence in the judicial system.

In dismissing the plea as an "attempt to intimidate the office of the Chief Justice", a division bench of Chief Justice TS Sivagnanam and Justice Hiranmay Bhattacharya stated:

"It has been conclusively held that the right of the CJ in finalising the determination cannot be tinkered by a petitioner, and more particularly by an advocate practising before this court. The advice to look at the legal provisions fell on deaf ears. Therefore this writ petition is a clear abuse of process, and probably an attempt to intimidate the court, and to directly interfere with the jurisdiction of the Chief Justice."

Calcutta High Court Dismisses PIL Challenging BJPs 12-Hr Bandh, Cites Order In Previous Matter Indefinitely Debarring Litigant From Filing PILs

Case: Sanjoy Das v State of West Bengal

Citation: 2024 LiveLaw (Cal) 197

State Orders Impacting Individual Rights Require Separate Legal Remedies: Calcutta High Court

Case Title: Suklal Singh & Anr. -Vs. The State of West Bengal & Ors.

Citation: 2024 LiveLaw (Cal) 198

The Calcutta High Court division bench of Justice Harish Tandon and Justice Hiranmay Bhattacharyya has held that when a State authority's order is alleged to have impacted individual rights, each individual must pursue their legal remedy independently, and collective action in such cases is neither permissible nor maintainable.

Suklal Singh & Anr, Petitioners, two individuals, filed a writ petition challenging an order passed by the second respondent, Sub Divisional Officer and Sub Divisional Magistrate under Section 10 of the West Bengal Highways Act, 1964. The matter previously came before a Co-ordinate Bench of the High Court through a similar petition filed by others. The Co-ordinate Bench, by an order, directed the second respondent to consider the Petitioners' case as outlined in the decision. Following this direction, the second respondent reviewed the issue and issued the impugned order declaring the Petitioners and others as encroachers on public land and ordering the recovery of possession from them.

Section 34 Applications Challenging Arbitral Awards Subject To ₹120 Court Fee, Higher Fees Under Entry No. 1(10) Not Applicable: Calcutta High Court

Case Title: Sajarul Rahaman And Anr vs Srei Equipment Finance Limited And Anr and Connected Matters

Citation: 2024 LiveLaw (Cal) 199

The Calcutta High Court bench of Justice Sabyasachi Bhattacharyya has held that the principal application under Section 34 of the Arbitration and Conciliation Act, 1996, challenging an arbitral award, falls under Entry No. 2(c) of Schedule II of the Court Fees Act. This entry is the residuary provision that prescribes a court fee of Rs. 120 for original applications before the High Court, where no other specific provision in Schedule II applies.

The bench clarified that Entry No. 1(10) of the Court Fees Act, which prescribes higher fees for applications seeking a direction for filing an award, an order for filing an agreement, or for enforcing foreign awards, does not extend to principal applications under Section 34.

RG Kar Rape-Murder: Why Did Calcutta High Court Allow Protestors To March To West Bengal's State Secretariat "Nabanna"

Case: Debranjan Banerjee Vs. The State of West Bengal & Ors.

Citation: 2024 LiveLaw (Cal) 200

Findings In Criminal Trial Should Have Bearing On Disciplinary Proceedings In Case Of Identical Charges:Calcutta High Court

Case: Subal Makhal -Versus- Indian Red Cross Society & Ors.

Citation: 2024 LiveLaw (Cal) 201

A division bench of Calcutta High Court comprising Justice Tapabrata Chakraborty and Justice Partha Sarathi Chatterjee while deciding writ petition held that the findings in criminal trial should have bearing on disciplinary proceedings, especially when the charges are identical or closely related.

The employee was appointed as a laborer (Group-D) in the Indian Red Cross Society on May 22, 1979. He was granted temporary status effective from April 1, 1980. On August 3, 1994, a complaint was lodged by respondent against employee, leading to a criminal case being registered under Section 409 of the Indian Penal Code (IPC), which deals with criminal breach of trust. The employee was arrested on August 6, 1994, and released on bail on August 23, 1994.

RG Kar Rape-Murder: Calcutta HC Releases Student Booked For Leading March Towards Govt Secretariat, Cautions State Against 'Terrorising Protestors'

Case: Anjali Lahiri v State of West Bengal

Citation: 2024 LiveLaw (Cal) 202

The Calcutta High Court has ordered the state police to release a student named Sayan Lahiri, who was alleged to be the leader of the 'Paschim Banga Chhatra Samaj', an organisation which led a call for protests and march towards the State secretariat in Nabanna.

The protests though claimed to be peaceful, resulted in widespread violence, resulting in grave injuries to both protestors and police personnel.