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  • #122138 Reply
    advtanmoy
    Keymaster

    The word “conscious” means awareness about a particular fact. It is a state of mind which is deliberate or intended. [Union of India through Narcotics
    [See the full post at: Conscious]

    #122167 Reply
    Nimesh
    Guest

    Principles governing grant of bail

    Deepak Yadav v. State of U.P.

    CRIMINAL APPEAL NO. 861 OF 2022 (Arising out of S.L.P (Crl.) No. 9655 of 2021)

    Principles governing grant of bail

    19. Section 439 of the Cr.P.C is the guiding principle for adjudicating a Regular Bail Application wherein Court takes into consideration several aspects. The jurisdiction to grant bail has to be exercised cautiously on the basis of wellsettled principles having regard to the facts and circumstances of each case.

    20. In Prahlad Singh Bhati Vs. NCT of Delhi And Another [6] , a two-Judge Bench of this Court stated the principles which are to be considered while granting bail which are as follows : –

    “8. The jurisdiction to grant bail has to be exercised on the basis of well-settled principles having regard to the circumstances of each case and not in an arbitrary manner. While granting the bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character, behaviour, means and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations. It has also to be kept in mind that for the purposes of granting the bail the Legislature has used the words “reasonable grounds for believing” instead of “the evidence” which means the court dealing with the grant of bail can only satisfy it as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not excepted, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt.”

    21. As reiterated by the two-Judge Bench of this Court in Prasanta Kumar Sarkar Vs. Ashish Chatterjee And Another [7] , it is well-settled that the factors to be borne in mind while considering an application for bail are:

    (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;

    (ii) nature and gravity of the accusation;

    (iii) severity of the punishment in the event of conviction;

    (iv) danger of the accused absconding or fleeing, if released on bail;

    (v) character, behaviour, means, position and standing of the accused;

    (vi) likelihood of the offence being repeated;

    (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail.

    22. The decision in Prasanta(Supra) has been consistently followed by this Court in Ash Mohammad Vs. Shiv Raj Singh alias Lalla Babu And Another [8] , Ranjit Singh Vs. State of Madhya Pradesh And Others [9] , Neeru Yadav Vs. State of Uttar Pradesh And Another [10] , Virupakshappa Gouda And Another Vs. State of Karnataka And Another [11] , State of Orissa Vs. Mahimananda Mishra [12] .

    23. In a recent pronouncement of this Court in the case of ‘Y’ Vs. State of Rajasthan & Anr. [13] authored by one of us (Hon’ble N.V. Ramana, CJI), it has been observed as under :-

    “22. The impugned order passed by the High Court is cryptic, and does not suggest any application of mind. There is a recent trend of passing such orders granting or refusing to grant bail, where the Courts make a general observation that “the facts and the circumstances” have been considered. No specific reasons are indicated which precipitated the passing of the order by the Court.

    23 . Such a situation continues despite various judgments of this Court wherein this Court has disapproved of such a practice. In the case of Mahipal (Supra), this Court observed as follows:-

    25. Merely recording “having perused the record” and “on the facts and circumstances of the case” does not subserve the purpose of a reasoned judicial order. It is a fundamental premise of open justice, to which our judicial system is committed, that factors which have weighed in the mind of the Judge in the rejection or the grant of bail are recorded in the order passed. Open justice is premised on the notion that justice should not only be done, but should manifestly and undoubtedly be seen to be done. The duty of Judges to give reasoned decisions lies at the heart of this commitment. Questions of the grant of bail concern both liberty of individuals undergoing criminal prosecution as well as the interests of the criminal justice system in ensuring that those who commit crimes are not afforded the opportunity to obstruct justice. Judges are duty-bound to explain the basis on which they have arrived at a conclusion.”

    (emphasis supplied)

    24. For grant or denial of bail, the “nature of crime” has a huge relevancy. The key consideration which govern the grant of bail were elucidated in the judgment of this Court in Ram Govind Upadhyay Vs. Sudarshan Singh [14] , wherein it has been observed as under: –

    “4. Apart from the above, certain other which may be attributed to be relevant considerations may also be noticed at this juncture, though however, the same are only illustrative and not exhaustive, neither there can be any. The considerations being:

    (a) While granting bail the court has to keep in mind not only the nature of the accusations, but the severity of the punishment, if the accusation entails a conviction and the nature of evidence in support of the accusations.

    (b) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the court in the matter of grant of bail.

    (c) While it is not expected to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought always to be a prima facie satisfaction of the court in support of the charge.

    (d) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail, and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.”

    25. Similarly, the parameters to be taken into consideration for grant of bail by the courts has been described in Kalyan Chandra Sarkar Vs. Rajesh Ranjan alias Pappu Yadav And Another [15] as under : –

    “11. The law in regard to grant or refusal of bail is very well-settled. The Court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are:

    (a) the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.

    (b) reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.

    (c) prima facie satisfaction of the court in support of the charge.”

    Prahlad Singh Bhati v. NCT of Delhi, (2001) 4 SCC 280
    Prasanta Kumar Sarkar v. Ashish Chatterjee, (2010) 14 SCC 496
    Ash Mohammad v. Shiv Raj Singh alias Lalla Babu, (2012) 9 SCC 446
    Ranjit Singh v. State of Madhya Pradesh, (2013) 16 SCC 797
    Neeru Yadav v. State of Uttar Pradesh, (2014) 16 SCC 508
    Virupakshappa Gouda v. State of Karnataka, (2017) 5 SCC 406
    State of Orissa v. Mahimananda Mishra, (2018) 10 SCC 516
    ‘Y’ v. State of Rajasthan, Criminal Appeal No. 649 of 2022 decided on 19.04.2022
    Ram Govind Upadhyay v. Sudarshan Singh, (2002) 3 SCC 598
    Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav, (2004) 7 SCC 528

    • This reply was modified 1 week, 1 day ago by advtanmoy.
    #122168 Reply
    Nimesh
    Guest

    Recording of reasons for grant of bail by the High Court of the Sessions Court

    DEEPAK YADAV v. STATE OF U.P. & ANR.

    AIR 2022 SC 2514

    26. The importance of assigning reasoning for grant or denial of bail can never be undermined. There is prima facie need to indicate reasons particularly in cases of grant or denial of bail where the accused is charged with a serious offence. The sound reasoning in a particular case is a reassurance that discretion has been exercised by the decision maker after considering all the relevant grounds and by disregarding extraneous considerations.

    27. A two-Judge Bench of this Court in Ramesh Bhavan Rathod (Supra) held that the duty to record reasons is a significant safeguard which ensures that the discretion which is entrusted to the court, is exercised in a judicious manner. The operative portion of the judgment reads as under : –

    “35. We disapprove of the observations of the High Court in a succession of orders in the present case recording that the Counsel for the parties “do not press for a further reasoned order”. The grant of bail is a matter which implicates the liberty of the accused, the interest of the State and the victims of crime in the proper administration of criminal justice. It is a well-settled principle that in determining as to whether bail should be granted, the High Court, or for that matter, the Sessions Court deciding an application under Section 439 of Cr.P.C would not launch upon a detailed evaluation of the facts on merits since a criminal trial is still to take place. These observations while adjudicating upon bail would also not be binding on the outcome of the trial. But the Court granting bail cannot obviate its duty to apply a judicial mind and to record reasons, brief as they may be, for the purpose of deciding whether or not to grant bail . The consent of parties cannot obviate the duty of the High Court to indicate its reasons why it has either granted or refused bail. This is for the reason that the outcome of the application has a significant bearing on the liberty of the accused on one hand as well as the public interest in the due enforcement of criminal justice on the other. The rights of the victims and their families are at stake as well. These are not matters involving the private rights of two individual parties, as in a civil proceeding. The proper enforcement of criminal law is a matter of public interest. We must, therefore, disapprove of the manner in which a succession of orders in the present batch of cases has recorded that counsel for the “respective parties do not press for further reasoned order”. If this is a euphemism for not recording adequate reasons, this kind of a formula cannot shield the order from judicial scrutiny.

    36. Grant of bail under Section 439 of the Cr.P.C is a matter involving the exercise of judicial discretion . Judicial discretion in granting or refusing bail – as in the case of any other discretion which is vested in a court as a judicial institution – is not unstructured. The duty to record reasons is a significant safeguard which ensures that the discretion which is entrusted to the court is exercised in a judicious manner. The recording of reasons in a judicial order ensures that the thought process underlying the order is subject to scrutiny and that it meets objective standards of reason and justice.”

    28. Similarly, this Court in Ram Govind Upadhyay (below), observed that :-

    “3. Grant of bail though being a discretionary order but, however, calls for exercise of such a discretion in a judicious manner and not as a matter of course. Order for Bail bereft of any cogent reason cannot be sustained. Needless to record, however, that the grant of bail is dependent upon the contextual facts of the matter being dealt with by the Court and facts however do always vary from case to case. While placement of the accused in the society, though may be considered but that by itself cannot be a guiding factor in the matter of grant of bail and the same should and ought always be coupled with other circumstances warranting the grant of bail. The nature of the offence is one of the basic consideration for the grant of bail more heinous is a crime, the greater is the chance of rejection of the bail, though, however, dependent on the factual matrix of the matter.”

    29. A two-Judge Bench of this Court in Mahipal Vs. Rajesh Kumar Alias  Polia And Another [below] observed :-

    “14. The provision for an accused to be released on bail touches upon the liberty of an individual. It is for this reason that this Court does not ordinarily interfere with an order of the High Court granting bail. However, where the discretion of the High Court to grant bail has been exercised without the due application of mind or in contravention of the directions of this Court, such an order granting bail is liable to be set aside. The Court is required to factor, amongst other things, a prima facie view that the accused had committed the offence, the nature and gravity of the offence and the likelihood of the accused obstructing the proceedings of the trial in any manner or evading the course of justice. The provision for being released on bail draws an appropriate balance between public interest in the administration of justice and the protection of individual liberty pending adjudication of the case. However, the grant of bail is to be secured within the bounds of the law and in compliance with the conditions laid down by this Court. It is for this reason that a court must balance numerous factors that guide the exercise of the discretionary power to grant bail on a case by case basis. Inherent in this determination is whether, on an analysis of the record, it appears that there is a prima facie or reasonable cause to believe that the accused had committed the crime. It is not relevant at this stage for the court to examine in detail the evidence on record to come to a conclusive finding.”

    Dataram Singh v. State of U.P., (2018) 3 SCC 22
    Ramesh Bhavan Rathod v. Vishanbhai Hirabhai Makwana(Koli), (2021) 6 SCC 230
    Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav, (2004) 7 SCC 528
    Babu Singh  v. State of U.P., (1978) 1 SCC 579
    Dataram Singh v. State of Uttar Pradesh, (2018) 3 SCC 22
    Prahlad Singh Bhati v. NCT of Delhi, (2001) 4 SCC 280
    Prasanta Kumar Sarkar v. Ashish Chatterjee, (2010) 14 SCC 496
    Ash Mohammad v. Shiv Raj Singh alias Lalla Babu, (2012) 9 SCC 446
    Ranjit Singh v. State of Madhya Pradesh, (2013) 16 SCC 797
    Neeru Yadav v. State of Uttar Pradesh, (2014) 16 SCC 508
    Virupakshappa Gouda v. State of Karnataka, (2017) 5 SCC 406
    State of Orissa v. Mahimananda Mishra, (2018) 10 SCC 516
    ‘Y’ v. State of Rajasthan, Criminal Appeal No. 649 of 2022 decided on 19.04.2022
    Ram Govind Upadhyay v. Sudarshan Singh, (2002) 3 SCC 598
    Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav, (2004) 7 SCC 528
    Mahipal v. Rajesh Kumar @ Polia, (2020) 2 SCC 118
    Dolat Ram v. State of Haryana, (1995) 1 SCC 349
    Neeru Yadav v. State of Uttar Pradesh, (2014) 16 SCC 508
    Prakash Kadam v.  Ram Prasad Vishwanath Gupta, (2011) 6 SCC 189

    • This reply was modified 1 week, 1 day ago by advtanmoy.
    #122169 Reply
    Nimesh
    Guest

    Cancellation of Bail

    DEEPAK YADAV v. STATE OF U.P. & ANR.

    AIR 2022 SC 2514

    Supreme Court has reiterated in several instances that bail once granted, should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during trial. Having said that, in case of cancellation of bail, very cogent and overwhelming circumstances are necessary for an order directing cancellation of bail (which was already granted). A two-Judge Bench of this Court in Dolat Ram And Others Vs. State of Haryana [below] laid down the grounds for cancellation of bail which are :-

    (i) interference or attempt to interfere with the due course of administration of Justice

    (ii) evasion or attempt to evade the due course of justice

    (iii) abuse of the concession granted to the accused in any manner

    (iv) Possibility of accused absconding

    (v) Likelihood of/actual misuse of bail

    (vi) Likelihood of the accused tampering with the evidence or threatening witnesses.

    It is no doubt true that cancellation of bail cannot be limited to the occurrence of supervening circumstances. This Court certainly has the inherent powers and discretion to cancel the bail of an accused even in the absence of supervening circumstances. Following are the illustrative circumstances where the bail can be cancelled :-

    a) Where the court granting bail takes into account irrelevant material of substantial nature and not trivial nature while ignoring relevant material on record.

    b) Where the court granting bail overlooks the influential position of the accused in comparison to the victim of abuse or the witnesses especially when there is prima facie misuse of position and power over the victim.

    c) Where the past criminal record and conduct of the accused is completely ignored while granting bail.

    d) Where bail has been granted on untenable grounds.

    e) Where serious discrepancies are found in the order granting bail thereby causing prejudice to justice.

    f) Where the grant of bail was not appropriate in the first place given the very serious nature of the charges against the accused which disentitles him for bail and thus cannot be justified.

    g) When the order granting bail is apparently whimsical, capricious and perverse in the facts of the given case.

    In Neeru Yadav Vs. State of Uttar Pradesh And Another [18] , the accused was granted bail by the High Court. In an appeal against the order of the High Court, a two-Judge Bench of this Court examined the precedents on the principles that guide grant of bail and observed as under :-

    “12 …It is well settled in law that cancellation of bail after it is granted because the accused has misconducted himself or of some supervening circumstances warranting such cancellation have occurred is in a different compartment altogether than an order granting bail which is unjustified, illegal and perverse. If in a case, the relevant factors which should have been taken into consideration while dealing with the application for bail and have not been taken note of bail or it is founded on irrelevant considerations, indisputably the superior court can set aside the order of such a grant of bail. Such a case belongs to a different category and is in a separate realm. While dealing with a case of second nature, the Court does not dwell upon the violation of conditions by the accused or the supervening circumstances that have happened subsequently. It, on the contrary, delves into the justifiability and the soundness of the order passed by the Court”

    Apex  Court in Mahipal (Supra) held that: –

    “17. Where a court considering an application for bail fails to consider relevant factors, an appellate court may justifiably set aside the order granting bail. An appellate court is thus required to consider whether the order granting bail suffers from a non-application of mind or is not borne out from a prima facie view of the evidence on record. It is thus necessary for this Court to assess whether, on the basis of the evidentiary record, there existed a prima facie or reasonable ground to believe that the accused had committed the crime, also taking into account the seriousness of the crime and the severity of the punishment.”

    A two-Judge Bench of this Court in Prakash Kadam And Others Vs.  Ram Prasad Vishwanath Gupta And Another [19] held that:-

    “18. In considering whether to cancel the bail, the court has also to consider the gravity and nature of the offence, prima facie case against the accused, the position and standing of the accused, etc. if there are serious allegations against the accused, his bail may be cancelled even if he has not misused the bail granted to him.

    19 . In our opinion, there is no absolute rule that once bail is granted to the accused then it can only be cancelled if there is likelihood of misuse of bail. that factor, though no doubt important, is not the only factor. There are several other factors also which may be seen while deciding to cancel the bail.”

    Coming to the present case at hand, the Respondent No.2/Accused was arrested on 13.01.2021 subsequent to which, he had applied for regular bail before the Sessions Court which was rejected on the ground that he is named in the FIR on the basis of the information provided by the deceased himself and that the same has been clarified after perusal of the documents/forms that the bullet was shot by the Respondent No. 2/Accused himself. Being aggrieved by the same, Respondent No.2/Accused filed an application under Section 439 Cr.P.C before the High Court seeking regular bail. The High Court vide its impugned order granted bail to the Respondent No.2/Accused without considering the relevant facts and circumstances.

    Dataram Singh v. State of U.P., (2018) 3 SCC 22
    Ramesh Bhavan Rathod v. Vishanbhai Hirabhai Makwana(Koli), (2021) 6 SCC 230
    Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav, (2004) 7 SCC 528
    Babu Singh v. State of U.P., (1978) 1 SCC 579
    Dataram Singh v. State of Uttar Pradesh, (2018) 3 SCC 22
    Prahlad Singh Bhati v. NCT of Delhi, (2001) 4 SCC 280
    Prasanta Kumar Sarkar v. Ashish Chatterjee, (2010) 14 SCC 496
    Ash Mohammad v. Shiv Raj Singh alias Lalla Babu, (2012) 9 SCC 446
    Ranjit Singh v. State of Madhya Pradesh, (2013) 16 SCC 797
    Neeru Yadav v. State of Uttar Pradesh, (2014) 16 SCC 508
    Virupakshappa Gouda v. State of Karnataka, (2017) 5 SCC 406
    State of Orissa v. Mahimananda Mishra, (2018) 10 SCC 516
    ‘Y’ v. State of Rajasthan, Criminal Appeal No. 649 of 2022 decided on 19.04.2022
    Ram Govind Upadhyay v. Sudarshan Singh, (2002) 3 SCC 598
    Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav, (2004) 7 SCC 528
    Mahipal v. Rajesh Kumar @ Polia, (2020) 2 SCC 118
    Dolat Ram v. State of Haryana, (1995) 1 SCC 349
    Neeru Yadav v. State of Uttar Pradesh, (2014) 16 SCC 508
    Prakash Kadam v. Ram Prasad Vishwanath Gupta, (2011) 6 SCC 189

     

    • This reply was modified 1 week, 1 day ago by advtanmoy.
    • This reply was modified 1 week, 1 day ago by advtanmoy.
    #122170 Reply
    Nimesh
    Guest

    <h2>Application under Order 7 Rule 11 CPC</h2>
    Premlata @ Sunita Versus Naseeb Bee & Ors.

    AIR 2022 SC 1560

    2. The facts leading to the present appeals in nutshell are as under:

    2.1 That the appellant herein – original plaintiff initially filed the original proceedings before the Revenue Authority/Tehsildar under Section 250 of MPLRC. The respondents herein – original defendants raised the objection against the maintainability of the application under Section 250 of the MPLRC and the jurisdiction of the Revenue Authority/Tehsildar. The Tehsildar rejected the said application accepting the objection raised on behalf of the respondents and held that as the question involved in the matter relates to title, hence provisions under Section 250 of the MPLRC shall not be attracted. Thereafter the appellant herein preferred an appeal before the SDO under Section 44 of the MPLRC challenging the order passed by the Tehsildar. However, during the pendency of the said appeal, the appellant filed the present suit before the learned trial Court for recovery of the possession and injunction. Having been served with the notice of the suit, the respondents – defendants filed an application under Order 7 Rule 11 CPC and requested to reject the plaint on the ground that the suit before the Civil Court would be barred considering Section 257 of the MPLRC. The learned Civil Court rejected the said application and refused to reject the plaint in exercise of powers under Order 7 Rule 11 CPC. Against the said rejection the respondents – defendants preferred Civil Revision Application No.385 of 2019 before the High Court.

    2.2 By the impugned judgment and order the High Court has allowed the revision application and has set aside the order passed by the learned trial Court and consequently has allowed the application under Order 7 Rule 11 CPC and has rejected the plaint by holding that in view of Section 257 of the MPLRC the jurisdiction of the Civil Court is barred.

    2.3 That as during the pendency of the revision application the appeal filed by the plaintiff rejecting application under Section 250 of the MPLRC came to be dismissed which was not pointed out at the time of final hearing of the revision application by the High Court, the appellant herein filed a review application before the High Court. The said review application has been dismissed.

    2.4 Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court in Civil Revision Application No.385 of 2019 and also the order passed in Review Petition No.725 of 2020, the original plaintiff has preferred the present appeals.

    3. We have heard learned counsel for the respective parties at length.

    4. At the outset, it is required to be noted and it is not in dispute that the plaintiff instituted the proceedings before the Revenue Authority under Section 250 of the MPLRC. These very defendants raised an objection before the Revenue Authority that the Revenue Authority has no jurisdiction to deal with the matter. The Tehsildar accepted the said objection and dismissed the application under Section 250 of the MPLRC by holding that as the dispute is with respect to title the Revenue Authority would not have any jurisdiction under MPLRC. The said order passed by the Tehsildar has been affirmed by the Appellate Authority (of course during the pendency of the revision application before the High Court). That after the Tehsildar passed an order rejecting the application under Section 250 of the MPLRC on the ground that the Revenue Authority would have no jurisdiction, which was on the objection raised by the respondents herein – original defendants, the plaintiff instituted a suit before the Civil Court. Before the Civil Court the respondents – original defendants just took a contrary stand than which was taken by them before the Revenue Authority and before the Civil Court the respondents took the objection that the Civil Court would have no jurisdiction to entertain the suit. The respondents – original defendants cannot be permitted to take two contradictory stands before two different authorities/courts. They cannot be permitted to approbate and reprobate once the objection raised on behalf of the original defendants that the Revenue Authority would have no jurisdiction came to be accepted by the Revenue Authority/Tehsildar and the proceedings under Section 250 of the MPLRC came to be dismissed and thereafter when the plaintiff instituted a suit before the Civil Court it was not open for the respondents – original defendants thereafter to take an objection that the suit before the Civil Court would also be barred in view of Section 257 of the MPLRC. If the submission on behalf of the respondents – defendants is accepted in that case the original plaintiff would be remediless. The High Court has not at all appreciated the fact that when the appellant – original plaintiff approached the Revenue Authority/Tehsildar he was non­suited on the ground that Revenue Authority/Tehsildar had no jurisdiction to decide the dispute with respect to title to the suit property. Thereafter when the suit was filed and the respondents – defendants took a contrary stand that even the civil suit would be barred. In that case the original plaintiff would be remediless. In any case the respondents – original defendants cannot be permitted to approbate and reprobate and to take just a contrary stand than taken before the Revenue Authority. Therefore, in the facts and circumstances of the case, the learned trial Court rightly rejected the application under Order 7 Rule 11 CPC and rightly refused to reject the plaint. The High Court has committed a grave error in allowing the application under Order 7 Rule 11 CPC and rejecting the plaint on the ground that the suit would be barred in view of Section 257 of the MPLRC. The impugned judgment and order passed by the High Court is unsustainable and is liable to be set aside.

    #122171 Reply
    Aparna
    Guest

    <h2>Agreement to Sell – Readiness and Willingness under Specific Relief Act</h2>
    Kirpal Kaur and another Versus Ritesh and others

    AIR 2022 SC 1555

    Once the execution of the agreement to sell for a sale consideration has been believed and it has been found that Jai Parkash and thereafter, the original plaintiffs were always ready and willing to perform their part under the agreement and in fact they remained present before the Sub Registrar, Nilokheri on 10.02.2005, which has been established and proved, the decree for specific performance is rightly passed by the first appellate Court, which is rightly confirmed by the High Court. In the facts and circumstances, clauses (a) & (c) of Section 20 of the Specific Relief Act shall not be applicable and/or attracted. We are in complete agreement with the view taken by the first appellate Court and the High Court. However, at the same time to do the complete justice between the parties and in exercise of powers under Article 142 of the Constitution of India, we direct the original plaintiffs to pay additional Rs.3,50,000/- to the appellants – original defendants, over and above the balance sale consideration of Rs.50,000/- (Rs.50,000/- to be paid with 6% interest from the date of execution of the Agreement to Sell i.e., 11.02.2004 to actual payment). It is further directed that on such payment the original defendants – appellants herein shall execute the sale deed in favour of respondents herein – original plaintiffs.

    #122172 Reply
    Aparna
    Guest

    Doctrine of Equality in Disciplinary Proceedings

    State of Uttar Pradesh and Ors. Versus Rajit Singh

    AIR 2022 SC 1551

    6. At the outset, it is required to be noted that the Enquiry Officer held the respondent – delinquent officer guilty for the misconduct alleged and the charges levelled against him of causing monetary loss to the extent of Rs. 22,48,964.42/- and other charges, which are held to be proved. Thereafter, the Disciplinary Authority imposed the punishment after giving the respondent opportunity to meet the findings recorded by the Enquiry Officer and thereafter imposed the punishment. The Tribunal set aside the order of punishment imposed by the Disciplinary Authority by mainly applying the Doctrine of Equality and by observing that as other officers involved in the incident were exonerated and/or no action was taken against them, therefore, no action was warranted against respondent also. The Tribunal has also observed and held that even otherwise, the enquiry proceedings were in breach of the principles of natural justice in as much as the relevant documents mentioned in the charge sheet were not at all supplied to the delinquent officer. The order passed by the Tribunal has been confirmed by the High Court by the impugned judgment and order.

    7. Now, so far as the quashing and setting aside the order of punishment imposed by the Disciplinary Authority applying the Doctrine of Equality on the ground that other officers involved in the incident have been exonerated and/or no action has been taken against them, is concerned, we are of the firm view that on the aforesaid ground, the order of punishment could not have been set aside by the Tribunal and the High court. The Doctrine of Equality ought not to have been applied when the Enquiry Officer and the Disciplinary Authority held the charges proved against the delinquent officer. The role of the each individual officer even with respect to the same misconduct is required to be considered in light of their duties of office. Even otherwise, merely because some other officers involved in the incident are exonerated and/or no action is taken against other officers cannot be a ground to set aside the order of punishment when the charges against the individual concerned – delinquent officer are held to be proved in a departmental enquiry. There cannot be any claim of negative equality in such cases. Therefore, both the Tribunal as well as the High Court have committed a grave error in quashing and setting aside the order of punishment imposed by the Disciplinary Authority by applying the Doctrine of Equality.

    8. It appears from the order passed by the Tribunal that the Tribunal also observed that the enquiry proceedings were against the principles of natural justice in as much as the documents mentioned in the charge sheet were not at all supplied to the delinquent officer. As per the settled proposition of law, in a case where it is found that the enquiry is not conducted properly and/or the same is in violation of the principles of natural justice, in that case, the Court cannot reinstate the employee as such and the matter is to be remanded to the Enquiry Officer/Disciplinary Authority to proceed further with the enquiry from the stage of violation of principles of natural justice is noticed and the enquiry has to be proceeded further after furnishing the necessary documents mentioned in the charge sheet, which are alleged to have not been given to the delinquent officer in the instant case. In the case of Chairman, Life Insurance Corporation of India and Ors. Vs. A. Masilamani, (2013) 6 SCC 530, which was also pressed into service on behalf of the appellants before the High Court, it is observed in paragraph 16 as under:-

    “16. It is a settled legal proposition, that once the court sets aside an order of punishment, on the ground that the enquiry was not properly conducted, the court cannot reinstate the employee. It must remit the case concerned to the disciplinary authority for it to conduct the enquiry from the point that it stood vitiated, and conclude the same. (Vide ECIL v. B. Karunakar [(1993) 4 SCC 727], Hiran Mayee Bhattacharyya v. S.M. School for Girls [(2002) 10 SCC 293], U.P. State Spg. Co. Ltd. v. R.S. Pandey [(2005) 8 SCC 264] and Union of India v. Y.S. Sadhu [(2008) 12 SCC 30]).”

    9. From the impugned judgment and order passed by the High Court, it appears that when the aforesaid submission and the aforesaid decision was pressed into service, the High Court has not considered the same on the ground that the other officers involved in respect of the same incident are exonerated and/or no action is taken against them. Applying the law laid down in the case of A. Masilamani (supra) to the facts of the case on hand, we are of the opinion that the Tribunal as well as the High Court ought to have remanded the matter to the Disciplinary Authority to conduct the enquiry from the stage it stood vitiated. Therefore, the order passed by the High Court in not allowing further proceedings from the stage it stood vitiated, i.e., after the issuance of the charge sheet, is unsustainable.

    • This reply was modified 1 week, 1 day ago by advtanmoy.
    #122173 Reply
    Aparna
    Guest

    Infrastructure projects should not be stayed by High Court

    N.G. Projects Ltd. v. Vinod Kumar Jain

    AIR 2022 SC 1531

    Court in Tata Cellular v. Union of India, (1994) 6 SCC 651 and to act as appellate authority over the decision of the State. This Court in Tata Cellular held as under:

    “70. It cannot be denied that the principles of judicial review would apply to the exercise of contractual powers by Government bodies in order to prevent arbitrariness or favouritism. However, it must be clearly stated that there are inherent limitations in exercise of that power of judicial review. Government is the guardian of the finances of the State. It is expected to protect the financial interest of the State. The right to refuse the lowest or any other tender is always available to the Government. But, the principles laid down in Article 14 of the Constitution have to be kept in view while accepting or refusing a tender. There can be no question of infringement of Article 14 if the Government tries to get the best person or the best quotation. The right to choose cannot be considered to be an arbitrary power. Of course, if the said power is exercised for any collateral purpose the exercise of that power will be struck down.

    xx xx xx

    77. The duty of the court is to confine itself to the question of legality. Its concern should be:

    1. Whether a decision-making authority exceeded its powers?

    2. Committed an error of law,

    3. committed a breach of the rules of natural justice,

    4. reached a decision which no reasonable tribunal would have reached or,

    5. abused its powers.

    Therefore, it is not for the court to determine whether a particular policy or particular decision taken in the fulfilment of that policy is fair. It is only concerned with the manner in which those decisions have been taken. The extent of the duty to act fairly will vary from case to case. Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under:

    (i) Illegality : This means the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it.

    (ii) Irrationality, namely, Wednesbury unreasonableness.

    (iii) Procedural impropriety.

    The above are only the broad grounds but it does not rule out addition of further grounds in course of time. As a matter of fact, in R. v. Secretary of State for the Home Department, ex Brind [(1991) 1 AC 696], Lord Diplock refers specifically to one development, namely, the possible recognition of the principle of proportionality. In all these cases the test to be adopted is that the court should, “consider whether something has gone wrong of a nature and degree which requires its intervention”.

    xx xx xx

    94. The principles deducible from the above are:

    (1) The modern trend points to judicial restraint in administrative action.

    (2) The court does not sit as a court of appeal but merely reviews the manner in which the decision was made.

    (3) The court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible.

    (4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. Normally speaking, the decision to accept the tender or award the contract is reached by process of negotiations through several tiers. More often than not, such decisions are made qualitatively by experts.

    (5) The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala fides.

    (6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure.

    Based on these principles we will examine the facts of this case since they commend to us as the correct principles.”

    In Galaxy Transport Agencies v. New J.K. Roadways, 2020 SCC OnLine SC 1035 a three-judge bench again reiterated that the authority that authors the tender document is the best person to understand and appreciate its requirements, and thus, its interpretation should not be second-guessed by a court in judicial review proceedings. It was observed as thus:

    “17. In accordance with these judgments and noting that the interpretation of the tendering authority in this case cannot be said to be a perverse one, the Division Bench ought not to have interfered with it by giving its own interpretation and not giving proper credence to the word “both” appearing in Condition No. 31 of the N.I.T. For this reason, the Division Bench’s conclusion that JK Roadways was wrongly declared to be ineligible, is set aside.

    19. The Specific Relief Act, 1963 was amended by Central Act 18 of 2018 when clause (ha) was inserted in Section 41 of the said Act to say:

    “(ha) if it would impede or delay the progress or completion of any infrastructure project or interfere with the continued provision of relevant facility related thereto or services being the subject matter of such project.”

    20. Such amendment was in pursuance of the report submitted on 20th June 2016 of the Expert Committee. The report is as under:-

    “The Expert Committee set on examining Specific Relief Act, 1963 submits its Report to Union Law & Justice Minister Recommends modifications for ensuring ease of doing business

    The Expert Committee set on examining the Specific Relief Act, 1963 today Submitted its Report To Union Law & Justice Minister Shri D.V.Sadananda Gowda here in New Delhi. In its report the committee has recommended modifications in the Specific Relief Act, 1963 for ensuring the ease of doing business.

    In the context of tremendous developments which have taken place since 1963 and the present changed scenario involving contract based infrastructure developments, public private partnerships and other public projects, involving huge investments; and changes required in the present scheme of the Act so that specific performance is granted as a general rule and grant of compensation or damages for non-performance remains as an exception, the committee decided

    i. To change the approach, from damages being the rule and specific performance being the exception, to specific performance being the rule, and damages being the alternate remedy..

    ii. To provide guidelines for reducing the discretion granted to Courts and tribunals while granting performance and injunctive reliefs.

    iii. To introduce provisions for rights of third parties (other than for Government contracts).

    iv. To consider addressing unconscionable contracts, unfair contracts, reciprocity in contracts etc., and implied terms.

    The committee observed that there is a need to classify diverse Public utility Contracts as a distinct class recognising the inherent public interest/importance to be addressed in the Act. Any public work must progress without interruption. This requires consideration whether a court’s intervention in public works should be minimal. Smooth functioning of Public works projects can be effectively managed through a monitoring system and regulatory mechanism. The role of courts in this exercise is to interfere to the minimum extent so that public works projects will not be impeded or stalled.”

    21. Since the construction of road is an infrastructure project and keeping in view the intent of the legislature that infrastructure projects should not be stayed, the High Court would have been well advised to hold its hand to stay the construction of the infrastructure project. Such provision should be kept in view even by the Writ Court while exercising its jurisdiction under Article 226 of the Constitution of India.

    22. The satisfaction whether a bidder satisfies the tender condition is primarily upon the authority inviting the bids. Such authority is aware of expectations from the tenderers while evaluating the consequences of non-performance. In the tender in question, there were 15 bidders. Bids of 13 tenderers were found to be unresponsive i.e., not satisfying the tender conditions. The writ petitioner was one of them. It is not the case of the writ petitioner that action of the Technical Evaluation Committee was actuated by extraneous considerations or was malafide. Therefore, on the same set of facts, different conclusions can be arrived at in a bona-fide manner by the Technical Evaluation Committee. Since the view of the Technical Evaluation Committee was not to the liking of the writ petitioner, such decision does not warrant for interference in a grant of contract to a successful bidder.

    23. In view of the above judgments of this Court, the Writ Court should refrain itself from imposing its decision over the decision of the employer as to whether or not to accept the bid of a tenderer. The Court does not have the expertise to examine the terms and conditions of the present day economic activities of the State and this limitation should be kept in view. Courts should be even more reluctant in interfering with contracts involving technical issues as there is a requirement of the necessary expertise to adjudicate upon such issues. The approach of the Court should be not to find fault with magnifying glass in its hands, rather the Court should examine as to whether the decision-making process is after complying with the procedure contemplated by the tender conditions. If the Court finds that there is total arbitrariness or that the tender has been granted in a malafide manner, still the Court should refrain from interfering in the grant of tender but instead relegate the parties to seek damages for the wrongful exclusion rather than to injunct the execution of the contract. The injunction or interference in the tender leads to additional costs on the State and is also against public interest. Therefore, the State and its citizens suffer twice, firstly by paying escalation costs and secondly, by being deprived of the infrastructure for which the present-day Governments are expected to work.

    • This reply was modified 1 week, 1 day ago by advtanmoy.
    #122174 Reply
    Rakhi
    Guest

    Authors the tender document is the best person to understand and appreciate its requirements

    In Galaxy Transport Agencies v. New J.K. Roadways, 2020 SCC OnLine SC 1035 a three-judge bench again reiterated that the authority that authors the tender document is the best person to understand and appreciate its requirements, and thus, its interpretation should not be second-guessed by a court in judicial review proceedings. It was observed as thus:

    “17. In accordance with these judgments and noting that the interpretation of the tendering authority in this case cannot be said to be a perverse one, the Division Bench ought not to have interfered with it by giving its own interpretation and not giving proper credence to the word “both” appearing in Condition No. 31 of the N.I.T. For this reason, the Division Bench’s conclusion that JK Roadways was wrongly declared to be ineligible, is set aside.

    18. Insofar as Condition No. 27 of the N.I.T. prescribing work experience of at least 5 years of not less than the value of Rs. 2 crores is concerned, suffice it to say that the expert body, being the Tender Opening Committee, consisting of four members, clearly found that this eligibility condition had been satisfied by the Appellant before us. Without therefore going into the assessment of the documents that have been supplied to this Court, it is well settled that unless arbitrariness or mala fide on the part of the tendering authority is alleged, the expert evaluation of a particular tender, particularly when it comes to technical evaluation, is not to be second-guessed by a writ court. Thus, in Jagdish Mandal v. State of Orissa, (2007) 14 SCC 517, this Court noted:

    “22. Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides. Its purpose is to check whether choice or decision is made “lawfully” and not to check whether choice or decision is “sound”. When the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. The tenderer or contractor with a grievance can always seek damages in a civil court. Attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains out of molehills of some technical/procedural violation or some prejudice to self, and persuade courts to interfere by exercising power of judicial review, should be resisted. Such interferences, either interim or final, may hold up public works for years, or delay relief and succour to thousands and millions and may increase the project cost manifold. Therefore, a court before interfering in tender or contractual matters in exercise of power of judicial review, should pose to itself the following questions:

    (i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone;

    or

    Whether the process adopted or decision made is so arbitrary and irrational that the court can say:“ the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached”;

    (ii) Whether public interest is affected.

    If the answers are in the negative, there should be no interference under Article 226. Cases involving blacklisting or imposition of penal consequences on a tenderer/contractor or distribution of State largesse (allotment of sites/shops, grant of licences, dealerships and franchises) stand on a different footing as they may require a higher degree of fairness in action.”

    xx xx xx

    20- This being the case, we are unable to fathom how the Division Bench, on its own appraisal, arrived at the conclusion that the Appellant held work experience of only 1 year, substituting the appraisal of the expert four-member Tender Opening Committee with its own.”

    • This reply was modified 1 week, 1 day ago by advtanmoy.
    • This reply was modified 1 week, 1 day ago by advtanmoy.
    #122175 Reply
    Rakhi
    Guest

    <h2>The judicial review in contractual matters has its own limitations</h2>
    In Uflex Ltd. v. Government of T.N., (2022) 1 SCC 165 Apex Court stated that the enlarged role of the Government in economic activity and its corresponding ability to give economic “largesse” was the bedrock of creating what is commonly called the “tender jurisdiction”. The objective was to have greater transparency and the consequent right of an aggrieved party to invoke the jurisdiction of the High Court under Article 226 of the Constitution of India beyond the issue of strict enforcement of contractual rights under the civil jurisdiction. However, the ground reality today is that almost no tender remains unchallenged. Unsuccessful parties or parties not even participating in the tender seek to invoke the jurisdiction of the High Court under Article 226 of the Constitution. The Court held as under:-

    “2. The judicial review of such contractual matters has its own limitations. It is in this context of judicial review of administrative actions that this Court has opined that it is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides. The purpose is to check whether the choice of decision is made lawfully and not to check whether the choice of decision is sound. In evaluating tenders and awarding contracts, the parties are to be governed by principles of commercial prudence. To that extent, principles of equity and natural justice have to stay at a distance. [Jagdish Mandal v. State of Orissa, (2007) 14 SCC 517]

    3. We cannot lose sight of the fact that a tenderer or contractor with a grievance can always seek damages in a civil court and thus, “attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains out of molehills of some technical/procedural violation or some prejudice to self, and persuade courts to interfere by exercising power of judicial review, should be resisted”. [Jagdish Mandal v. State of Orissa, (2007) 14 SCC 517]

    xx xx xx

    42. We must begin by noticing that we are examining the case, as already stated above, on the parameters discussed at the inception. In commercial tender matters there is obviously an aspect of commercial competitiveness. For every succeeding party who gets a tender there may be a couple or more parties who are not awarded the tender as there can be only one L-1. The question is should the judicial process be resorted to for downplaying the freedom which a tendering party has, merely because it is a State or a public authority, making the said process even more cumbersome. We have already noted that element of transparency is always required in such tenders because of the nature of economic activity carried on by the State, but the contours under which they are to be examined are restricted as set out in Tata Cellular [Tata Cellular v. Union of India, (1994) 6 SCC 651] and other cases. The objective is not to make the Court an appellate authority for scrutinising as to whom the tender should be awarded. Economics must be permitted to play its role for which the tendering authority knows best as to what is suited in terms of technology and price for them.”

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