CRE Problem
Sanjay Pandey
Shri Sudhir Das v. the Governor of Purvanchal and the Government of
Bharatiya
State of Purvanchal is a provincial unit of the Bharatiya Republic; the
constitution of Bharatiya is in pari materia with the constitution of
India. In September 2005 Elections for the Legislative Assembly of
Purvanchal took place. Details are as follows:
i. Purvanchal has a unicameral legislature.
ii. Strength of Assembly is of 425 members.
iii. LJ Party got 180 seats, PJ Party got 173 seats, DSP Party got 41
seats, and independent candidates won the remaining seats.
iv. These results were out on 23 September 2005.
v. In August 2005 Prime Minister of Bharatiya (who is also a
member-leader of LJ Party) announced in a public meeting in the capital
city of Purvanchal that Shri Buddhu Kant will be the next Chief
Minister of the State and he has full faith in the ability of Shri
Buddhu Kant.
vi. On 24 September 2005 LJ Party through their leader Shri Buddhu
Kant, PJ Party through their leader Shri Sudhir Das staked their claim
before the Governor to form the government in the State of Purvanchal,
meanwhile DSP Party also wrote a petition to the Governor showing that
it has support of independent candidates and if given a week's time
DSP Party can mobilize required strength to form government in the
State of Purvanchal.
vii. The Governor of Purvanchal Appreciating the entire scenario wrote
a letter to the President of India stating that in the given
circumstances it is highly impossible that government of State can be
carried in accordance to the mandates of the constitution of Bharatiya.
Thereby it is recommended that Article 356 be invoked. I hereby suspend
the formation of legislature till the approval of imposition of Article
356 by the Parliament.
viii. The LJ Party in power at the center advised the President of the
Republic on 2nd October 2005 to invoke Article 356 in the State of
Purvanchal. The same was approved by the parliament on 26 October 2005.
In the meantime Shri Sudhir Das filed a writ petition in the High Court
of Purvanchal seeking mandamus to set aside the Parliamentary approval
and direction to the Governor of the State of Purvanchal and the
President of Bharatiya Republic that they take efforts to constitute
government in the State of Purvanchal. The contention raised was that
the absence of the appointment of a date for the first meeting of the
Assembly in accordance with Article 172(1), its life did not commence
for the purposes of that article, and the fiction of constitution of
assembly created by virtue of notification under Section 73 of the
Representation of Peoples Act, 1951 does not entitle the Governor to
dissolve it by exercising power under Article 174(2).
Roll Nos: For - 397, 398; Against - 395, 396
For - 246, 314; Against - 313, 315
Sanjay Pandey
Shri Binod vs. State of Rajasthan, Jumbo University
& Ors
Shri Binod was working as Assistant Registrar in Jumbo University,
Rajasthan (a University created by the Jumbo University Act, 1993 of
the State of Rajasthan-an autonomous University) since 1995, he joined
the Jumbo University on contract basis for one year, which was later on
changed to tenure appointment for five years in 1997. With respect to
advertisement in Employment News dated 7.07.1999 he applied for
appointment to the post of Registrar on deputation basis in Veera
College of Animal Husbandry & Research (VCAHR) - an institution under
Ministry of Agriculture, Government of Rajasthan. He was found suitable
for the post of Registrar and joined the service of VCAHR from January
2001. The initial deputation period was for one year, which was later
extended to one more year. In 2002 August Ministry of Agriculture
Published advertisement for the post of Registrar in VCAHR, Shri Binod
accordingly applied for the post since this advertised post was a
regular post. On 12.10.2002 he received a letter from the Ministry that
he has been found suitable for appointment as Registrar in VCAHR and
soon he shall be receiving official appointment letter.
Binod did not receive any appointment letter from the Ministry but
received a letter from the Agricultural Department that he is being
relieved w.e.f 12.01.2003. He went to Jumbo University wherein he was
intimated that his tenure with the University expired so he cannot join
Jumbo University. Being aggrieved, Shri Binod filed a writ petition in
Hon'ble High Court at Jodhpur seeking direction against Jumbo
University and Department of Agriculture Government of Rajasthan that
he is taken into service. The High Court dismissed the writ petition on
the ground that the Hon'ble Supreme Court in the case of Jai Singh
Dalai and Ors. v. State of Haryana and Anr. 1993 SCC (L&S) 846 has
stated "the law is settled that even candidates selected for
appointment have no right to appointment and it is open to the State
Government at a subsequent date not to fill up the posts or to resort
to fresh selection and appointment on revised criteria". Further that
in Kunal Nanda v. Union of India, 2000 SCC (L&S) 705-2000 (3) SLJ 336
(SC), may be noted. In this decision the Hon'ble Supreme Court has
stated as follows: "The basic principle underlying deputation itself is
that the person concerned can always and at any time be repatriated to
his parent department to serve in his substantive position therein at
the instance of either of the departments and there is no vested right
in such a person to continue for long on deputation or get absorbed to
which he had gone on deputation".
Shri Binod has taken the matter to the Hon'ble Supreme Court stating
that action of Jumbo University and the Department of Agriculture are
arbitrary, bad and devoid of mandate under Articles 309-311 of the
Constitution of India.
Appearing For: 394, 392; 316, 317
Appearing Against: 391, 390; 318, 319
Sanjay Pandey
Rajasthan
State of Rajasthan enacted in 2006 the Weavers and Dyers Welfare Act,
2006 which required under Section 4 (1) that the State Government shall
frame scheme under the Act to ameliorate such workers from conditions
of poverty, unemployment etc. The State Government framed a scheme
under Section 4 of the Act thereby levying impost of 2% on total
transaction of such products, which were essentially cottage industry
and handloom products. This impost was to be paid by all those who are
getting benefited from works of such weavers of Rajasthan and includes
intermediaries or the first buyers (generally, whole-sellers, exporters
etc) of the product but it cannot be passed on to the consuming buyers
of this product. The State Government created a fund by the name of
"weavers' welfare fund" and imposts collected shall be credited
to this fund and a committee headed by Minister for Welfare and Family
Affairs of the Rajasthan Government shall decide the use of this fund
for taking timely and required steps for the development of weavers and
dyers in the State.
Mr. A.K. Jain, who is a purchaser and exporter of clothes and cloth
materials from such weavers in Rajasthan (his transaction of clothes
and material is worth around 500 crores) strongly objected levying of
such imposts when he received an assessment order from Ministry of
Welfare and Family Affairs of the Rajasthan Government requiring him to
pay 10 crores towards his contribution to the aforesaid fund. He filed
a writ petition in the Hon'ble High Court contending that there was
no relationship of employer and employee between the him and the
weavers as such the Legislature cannot levy impost by way of
contribution on it under Section 4(2) of the Act and that the impugned
provision was bad for want of legislative competence.
"Section 4 (2) - Scheme framed under Section 4 (1) shall be followed
as per procedure prescribed by the committee."
On the contrary the Ld. Advocate General contended that the Act and the
scheme framed there under are welfare legislation as postulated in
Articles 39 and 41 of the Constitution for the benefit of the weavers
who are members of poor and downtrodden community. His further
submission was that a legislation requiring one set of persons to pay
contributions for the benefit of another set of persons, is valid and
there is no requirement of a relationship of employer and employee
between them. To sustain his contention he relied on the decisions of
the Hon'ble Supreme Court in Mangalore Ganesh Beedi Works etc. etc.
vs. Union of India etc. 1974 (3) SCR 221.
Hearing the contentions of both the sides the Hon'ble High Court
ruled that the Act is valid under Article 246 of the Constitution of
India read with Part IV of the Constitution also that the law on this
issue is settled by the Apex Court. Aggrieved by the order of the High
Court Shri Jain has approached the Supreme Court.
Appearing For: 389, 388: 320, 321
Appearing Against: 387, 386: 322, 323
Sanjay Pandey
Hon'ble High Court of Rajasthan
The Hon'ble High Court took suo motu notice of the fact that Jodhpur
Roads have become unsafe for commotion and accidents are rule of the
day. The Hon'ble Court identified reasons as to non-compliance of
traffic rules, worse condition of Roads i.e., Roads having lot of
potholes, wear and tear and unauthorized occupation by the side of the
Road. Generally this is due to occupation of Road by Feriwalas,
Sabjiwalas, etc., (vendors of all kind). The Hon'ble High Court
issued orders to municipal authorities and also to district
administration stating categorically that it seems that
"administration has forgotten its duty and this Court has to recall
them why are they in the services of the State. The Hon'ble Court
quoted Lord Denning in R. v. Metropolitan Police Commr., [1968] 1 All
ER 763/(1968) 2 QB 118. Indicating the duty of the Commissioner of
Police, Lord Denning stated: (All ER p. 769)
"I have no hesitation, however in holding that, like every constable in
the land, he should be, and is, independent of the executive. He is not
subject to the orders of the Secretary of State,...I hold it to be the
duly of the Commissioner of Police, as it is of every chief constable,
to enforce the law of the land. He must take steps so to post his men
that crimes may be detected; and that honest citizens may go about
their affairs in peace. He must decide whether or not suspected persons
are to be prosecuted; and if need be, bring the prosecution or see that
it is brought; but in all these things he is not the servant of anyone,
save of the law itself. No Minister of the Crown can tell him that he
must, or must not, keep observation on this place or that; or that he
must, or must not prosecute this man or that one. Nor can any police
authority tell him so. The responsibility for law enforcement lies on
him. He is answerable to the law and to the law alone."
The Hon'ble Court directed (Order dated 5.05.06) to authorities to
remove all obstacles and unauthorized occupation within seven day and
also that Police authorities are required to post police personnel at
every one kilometer of the Road and traffic rules are to be strictly
followed. The Hon'ble High Court also constituted a committee
comprising of lawyers, and citizen to monitor and report to Court as to
compliance of this direction. Given the circumstances and
infrastructure support the authorities pleaded before the Court that
seven days time would not be sufficient to do the needful, the
Hon'ble Court extended the time to one month but even then the reform
condition appeared to be a makeshift and make up arrangement. By order
dated (7.07.2006) the Hon'ble High Court suspended 17 top-level
authorities from municipal department, police department and from
district administration and directed the Chief Secretary of the State
to comply with the orders or face contempt of Court.
The State preferred SLP to the Hon'ble Supreme Court referring the
orders of the Court as judicial extravaganza, not supported by any law
(per in curium) and in breach of constitutional mandate of separation
of power.
Appearing For: 385, 384: 324, 325
Appearing Against: 383, 382: 326, 327
Sanjay Pandey
State of Rajasthan enacted a law "the Secured Lending General
Liability Act, 2006", which reads in the long title " an Act to
provide for speedy recovery of debt in case of secured lending in the
State of Rajasthan and to administer justice to the people of
Rajasthan.
Section 3 of the Act provides - A Special Court constituted under
this Act shall be the only court competent to try matters relating to
housing loans, vehicle loans or personal loans not exceeding Rs.3 lakh
or any other secured loans given by any Bank in the State of Rajasthan.
Section 4 reads - Subject to the exceptions specified in Section 3, the
State Government, may by notification in the Official Gazette, invest
the Special Court with jurisdiction to receive, try and dispose of all
suits and other proceedings of a civil nature, arising within the State
of Rajasthan and of such value not exceeding Rs.25 lakh as may be
specified in the notification.
Section 5 of the Act makes provision for constitution of the Special
Court, which shall follow principles of natural justice as its rule of
procedure, however the Court shall have all powers and like privileges
of a Civil Court under the Code of Civil Procedure, 1908.
Section 6 of the Act states that the presiding officer of the Court so
established shall be appointed by the state government in a like
procedure as followed for the appointment of a District judge.
Section 7 of the Act states that if the Court is of the opinion that a
party before the Court is unable to pay the loan due to reasons of
extreme poverty, loss of job or due to any other reason considered
appropriate by the Court in the given circumstances, the Court may
extend the time period for the payment of loan or may remit the amount
so due or the interest as the case may be.
Section 8 provides that appeal from the decision of this Court shall go
to the High Court as an appeal under section 100 of the Code of Civil
Procedure, 1908.
HDFC a Bank functioning in State of Rajasthan is the leading bank in
cases of housing and personal loans and considering a good number of
factors and economic condition of people believes that this Act has an
attempt to write off debts of the people of Rajasthan and a mere
political stunt to woo vote Bank. HDFC has filed a writ petition in the
High Court challenging Constitutionality of the Secured Lending General
Liability Act, 2006.
Appearing for: 381, 380: 328, 329
Appearing Against: 379, 378: 330, 331
Sanjay Pandey
Trust & Ors
One Ms. Mohini possessed moveable, and immovable properties and at
least seven manuscripts, which she wrote during her lifetime. She
executed a Will dated 2nd April 1985 in favor of Citizen Welfare Trust,
a trust registered under Law and having office at Jodhpur. On 12th
June, 1987 Ms. Mohini executed another Will by which she cancelled the
earlier Will and bequeathed all her properties to Mr. Gajaraja; an
associate who worked with her for almost 20 years. Ms. Mohini died in
the year 1998.
In the year 1997 the Indian Succession Act, 1925 was amended with the
effect that succession certificate, can be obtained only by persons
related by blood to the person making testaments. The operative
amendment was made in Section 57 of the Act by amending the proviso,
which reads, "Provided that marriage shall not revoke any such Will
or Codicil. Provided further that no certificate can be obtained by a
person under Section 372 if the applicant was not blood related to the
died person."
Mr. Gajaraja applied for a succession certificate in the year 1998 but
the same was refused by the district court on the ground that Indian
Succession Act 1925 does not permit him to apply for succession
certificate.
Mr. Gajaraja filed an application in the district court stating that
Section 57 of the Act is unconstitutional, which was refused. When the
Citizen Welfare Trust came to know that application of Mr. Gajaraja is
refused by the court; the Citizen Welfare Trust applied for succession
certificate under the Will of 1985 contending that the Will executed in
1987 has become inoperative post amendment of 1997.
The district court invited objections on this application by publishing
the same in the newspapers. Upon this publication Mr. Gajaraja filed
objections and raised again the issue of constitutionality. This time
the district court referred the matter to the Hon'ble High Court. The
High Court has issued notice to the Ld. Advocate General of the State.
Appearing for: 374, 375: 332, 333
Appearing Against: 376, 377: 334, 335
rad...@gmail.com
Zeng Enterprises & Ors vs. State of Raistan
The Government of Indiastan (Constitution of Indiastan is in pari
materia with the Constitution of India) enacted Lotteries (Regulation)
Amendment Act, 2006, which regulates sale, transaction etc. in
lotteries, Section 4 reads - A State Government may organize, conduct
or promote a lottery, subject to the following conditions, namely: -
(a) Prizes shall not be offered on any pre-announced number or on the
basis of a single digit excluding Alphabets;
(b) The State Government shall print the lottery tickets bearing the
imprint and logo of the State in such manner that the authenticity of
the lottery ticket is ensured;
(c) The State Government shall sell the tickets either itself or
through distributors or selling agents; and if winning lottery falls
within the lot of unsold lotteries, in such a case the prize amount
shall vest in the Government of the State.
(d) The proceeds of the sale of lottery tickets shall be credited into
the consolidated fund of the State;
(e) The State Government itself shall conduct the draws of the
lotteries;
(f) (....deleted w.e.f 02.02.2006)
(g) The place of draw shall be located within the state concerned;
(h) No lottery shall have more than one draw in a week;
(i) The draws of all kinds of lotteries shall be conducted between such
period of the day as may be prescribed the State Government;
(j) The number of bumper draws of a lottery shall not be more than
twelve in a calendar year;
(k) Such other conditions as may be prescribed by the Central
Government.
Section 5. A State Government may, within the State, prohibit the sale
of tickets of a lottery organized, conducted or promoted by every other
State. Provided that such restriction is not arbitrary and is in the
interest of the State.
Section 7(1) Where a lottery is organized, conducted or promoted after
the date on which this Act receives the assent of the President, in
contravention of the provisions of this Act, by any Department of the
State Government, the Head of the Department shall be punishable with
rigorous imprisonment for a term which may extend to two years or with
fine or with both:
Provided that nothing contained in this section shall render such Head
of the Department liable to any punishment if he proves that the
contravention was committed without his knowledge or that he exercised
all due diligence to prevent the commission of such contravention.
(2) Notwithstanding anything contained in sub-section (1) where a
contravention under this Act has been committed by a Department of
Government and it is proved that the contravention has been committed
with the consent or connivance of, or is attributable to any neglect on
the part of, any officer, other than the Head of the Department, such
officer shall also be deemed to be guilty of that contravention and
shall be liable to be proceeded against and punishable accordingly.
(3) If any person acts as an agent or promoter or trader in any lottery
organized, conducted or promoted in contravention of the provisions of
this Act or sells, distributes or purchases the ticket of such lottery,
he shall be punishable with rigorous imprisonment for a term which may
extend to two years or with fine or with both.
Pursuant to this amendment the Government of Raistan (A State of
Indiastan) through notification number GSR/DFO/LTC/987/June/2006 banned
sale of all lotteries in Raistan except the lotteries sponsored by the
Government of Raistan. Zeng Enterprises a lottery distributor in the
State of Raistan has filed a writ petition challenging the Governmental
order. Citizen for Morality (an NGO) has filed a writ in the High Court
of Raistan seeking declaration of law as unconstitutional.
Appearing for: 373, 371: 336, 338
Appearing Against: 372, 370: 337, 339
Date: 31.08.2006
Sanjay Pandey
Sanjay Pandey
Union of India & Ors vs.
Deendayal
Shri Deendayal filed a writ petition on 12.10.2005 in the Jaipur bench
of the Rajasthan High Court seeking a mandamus against the Government
in terms that State Government be directed to stop providing any
assistance in form of subsidy to any religious pilgrimage, the main
contention was in relation to providing governmental assistance during
Ajmer religious festival, assistance given to those going for Haj or to
those participating in various Hindu religious festivals/yatras etc. It
was contended by the petitioner that he is taxpayer and his money
cannot be put to such purposes, which are not provided by the
Constitution of India. The High Court ordered (dated 12.12.2005) a
blanket ban on the subsidy given by the Central and State governments
to Haj pilgrims and other religious yatra/pilgrimage. The Court ruled
that no subsidy should be given by the State or the Central governments
for any kind of pilgrimage. The reasoning adhered to by the Court was
that being a secular nation, the Central or State governments had no
business to grant special concessions for pilgrimage by members of a
particular community.
On 26.12.2005 the Central Government enacted a Law "the Pilgrimage
and Religious Regulation and Facility to Public Act, 2005. The Act
contained only three Sections.
Section 1 reads: the short title of the Act is Pilgrimage Act, 2005 and
this Act shall come into effect immediately on receipt of Presidential
Assent and shall be applicable to entire territory of India. (to be
noted that the Act received assent on 29.12.2005)
Section 2 provided that the Central Government or the State Government
shall have competence to declare and make rules as to what religious
festivals, pilgrimages, and alike be provided any assistance from the
State so that their constitutional right of followers of such faith and
their right to free exercise and propagation of religion be given
effect.
Section 3 reads Notwithstanding anything in any law for the time being
in force in India, the Central Government and State Governments shall
form a joint committee to administer the mandate of the Act and avoid
any overlap in declarations, rules etc required to be made under this
Act.
This Act was challenges by Shri Deendayal in the Rajasthan High Court
of Judicature at Jodhpur through a writ petition filed on 8.08.2006 on
the ground that the parliamentary law is unconstitutional in the way
that it has subverted the independence of judiciary thus acting
derogatory to constitutional mandate. The Hon'ble High Court allowed
the writ petition and declared "the Pilgrimage and Religious
Regulation and Facility to Public Act, 2005" unconstitutional. Now
the matter is before the Hon'ble Supreme Court.
Appearing for: 369, 368: 340, 341
Appearing Against: 367, 366: 342, 343
Date: 04.09.2006
Sanjay Pandey
of Rajasthan
On 30th August 2005, an Ordinance known as the Rajasthan Tax on
Luxuries Act, 2005 (being Rajasthan Ordinance No. xx/2005) was
promulgated. The object of the Ordinance, as stated in the preamble was
to "provide for levy and collection of tax on supply of alcoholic
beverages and matters connected therewith or incidental there to". It
consisted of a few sections of which relevant provisions are as
follows:
Section 3 of the Ordinance, which provided for the levy of luxury tax
read as follows: -
"Levy of luxury tax. --Every producer of alcoholic beverages shall be
liable to pay luxury tax on his turnover of receipts at such rate, not
exceeding twenty five per cent, as the State Government may, by
notification, specify and different rates may be specified for
different classes of alcoholic beverages:
Provided that a producer who does not manufacture or receive alcoholic
beverages from outside the State shall be liable to pay tax on his
turnover of receipts from the date his turnover of receipts exceeds
three lakh rupees:
Provided further that in a chain of supply of alcoholic beverages, the
tax shall be realized from the earliest of the sellers in the State and
a successive seller shall be exempt from payment of tax if he
furnishes, in the manner prescribed, proof of payment of tax on such
alcoholic beverages.
Section 2 (a) "receipt" means:-
(i) in respect of supply of alcoholic beverages by a producer made by
way of sale, the amount or valuable consideration received or
receivable by him for such sale including any sum charged for anything
done by him in respect of the alcoholic beverages so sold at the time
of or before the delivery thereof and the price if charged separately,
of any primary or secondary packing, other than the cost of freight or
delivery or the amount realized as luxury tax when such cost or amount
is separately charged; and
(ii) in respect of supply of alcoholic beverages by a producer made
otherwise than by way of sale, the normal price at which the alcoholic
beverages are sold, and the term "normal price" shall have the same
meaning as assigned to it under Parliamentary Law;
Section 2 (b) producer means:-
(i) a manufacturer whose turnover of receipts in a year exceeds three
lakh rupees who supplies alcoholic beverages by way of sale or
otherwise and includes any person who for the purpose of business gets
the manufacturing done from any other person, whether or not on job
work basis;
(ii) any person who for the purposes of business brings or causes to be
brought alcoholic beverages in the State or to whom any alcoholic
beverages is dispatched from any place outside the State and who
supplies such alcoholic beverages by way of sale or otherwise;
(iii) any person who supplies alcoholic beverages from a place within
the State to any place outside the State by way of sale or otherwise;
JB Distilleries Pvt. Ltd is a leading alcoholic beverages producer in
the State of Rajasthan and pays excise duty as prescribed by law. The
present tax under the Rajasthan Tax on Luxuries Act, 2005 is an
additional tax on JB Distilleries, which will amount to a huge cut in
their profit and business. JB Distilleries Pvt. Ltd filed a writ
petition in October 2005 when they were required to pay luxury tax,
before the Hon'ble High Court, JB Distilleries Pvt. Ltd took plea
that the present law is not supported by Article 19 (6) thus invalid.
This point was rejected by the High Court. Matter is now in the Supreme
Court of India where JB Distilleries Pvt. Ltd has taken plea of
legislative competency relating to Part XI of the Constitution of
India.
Appearing for: 365, 364: 344, 345
Appearing Against: 363, 362: 346, 347
Date: 07.09.2006
Sanjay Pandey
The Merchants' Association of Raistan vs. State of
Raistan
Owing to the very low production of wheat crop in year 2005 in the
State of Raistan a province of Indiastan (the Constitution of Indiastan
is in pari material with the Constitution of India) and there was
unprecedented and phenomenal rise in wheat prices and there was a
perceptible drop in Rabi crop production as a whole. Early in the year
prices of wheat showed an upward trend and the Government of Raistan
prepared itself with legislative tools to tackle rising prices. The
Government issued Wheat Control Orders 2005 whereby restricting sale of
wheat in the State beyond Rs.5 per Kg and also prohibited movement of
wheat from the territory of Raistan but at the same time permitted
entry of wheat in the State of Raistan provided that such entry
conforms to the Control Order.
Undoubtedly meager production caused economic loss to State of Raistan
as it led to less revenue mobilization during the said year, to cover
up the State enacted the Cess on Rice Milling Act 2005. This Act
provided levying of 3% Cess on total worth of paddy bought by Rice
Mills in the State of Raistan.
In 2005 the Merchants' Association of Raistan (a body registered
under Societies Registration Act to cater to the needs of grain
merchants in the state of Raistan) challenged the Control Order 2005
relating to regulation of wheat in Raistan through a writ petition in
the hon'ble High Court of Judicature for Raistan. During pendency of
the writ this new law i.e., the Cess on Rice Milling Act 2005 came into
force and the Merchants' Association of Raistan felt highly outraged
by this decision of the Government. The Merchants' Association filed
another writ hon'ble High Court of Judicature for Raistan challenging
constitutional validity and competence of the State of Raistan to enact
such a law.
The Merchants' Association preferred an application requesting the
hon'ble Court to hear both the matters together so that the
petitioners could be facilitated; the application was duly heard by the
hon'ble High Court of Judicature for Raistan and the Court ordered
hearing of both the matters together on 11.09.2006.
Appearing for: 361, 360: 348, 356
Appearing Against: 359, 358: 246, 313
Date: 11.09.2006
Sanjay Pandey
The Government of India enacted the Foreign Exchange Management Act,
1999.An Act to consolidate and amend the law relating to foreign
exchange with the objective of facilitating external trade and payments
and for promoting the orderly development and maintenance of foreign
exchange market in India. In 2006 an amendment was made in the Act
whereby Section 48 of the Act is amended to read " every rule and
regulation made under this Act shall be laid, as soon as may be after
it is made, before the Cabinet, and if the Cabinet agrees that the rule
or regulation should not be made, the rule or regulation shall
thereafter have effect only in such modified form or be of no effect,
as the case may be; so, however, that any such modification or
annulment shall be without prejudice to the validity of anything
previously done under that rule or regulation."
In exercise of the powers conferred by clause (h) of sub-section (2) of
Section 47 of the Foreign Exchange Management Act, 1999 (42 of 1999),
the Reserve Bank made regulation G.S.R. 412(E). This regulation
permitted a foreigner to enter into a foreign exchange derivative
contract in India provided the person so concerned and willing has
obtained permission from Finance Secretary, Government of India. This
regulation is accordingly notified vide Notification No. FEMA 22
/RB-2006, dated 3rd May 2006.
On 18 August 2006 a writ petition was filed by the UTI Bank in the
Hon'ble High Court of Judicature for Rajasthan at Jodhpur praying a
mandamus to strike down G.S.R. 412(E), Notification No. FEMA 22
/RB-2006, dated 3rd May 2006 along with amendment to Section 48 of the
Foreign Exchange Management Act, 1999. The Petitioner prayed that the
amendment and the said regulation are unconstitutional and hit by
excessive delegation. The Hon'ble High Court examined the contentions
and came to conclusion that given the wide policy of the Foreign
Exchange Management Act, 1999 vesting of such authority in the
executive is justifiable and does not suffer from the vire of excessive
delegation. With this pronouncement the writ petition was dismissed.
Similar Writ petitions were filed in various other High Courts of the
Country i.e., Delhi, Bombay, Allahabad, and all such writ petitions met
with similar pronouncements.
The UTI Bank has taken this matter to the Hon'ble Supreme Court of
India through Special Leave Petition. The matter is posted for grant of
leave and for further arguments on 14.09.2006.
Appearing for: 357, 356: [Section students contact me on 7.09.2006]
Appearing Against: 355, 354:
Date: 14.09.2006
Sanjay Pandey
> Appearing Against: 355, 354: 315, 317
> Date: 14.09.2006
Sanjay Pandey
CCI vs. State of Orissa and
State of Orissa vs. CCI
The States of Orissa levied a Cess, "health Cess" on the Cement
Consortium of India [CCI] in 2004, which was based on the royalty
derived from mining lands in the State of Orissa by the CCI. Cess @3%
levied on turnover by the Orissa Cess Act, 1992 was for a specific
purpose i.e., to provide health care facility to workmen working at
various sites of CCI. The concerned department carried out the
assessment and the CCI was required to pay 15 crores as health Cess,
failing which the operations of CCI in State of Orissa were to be
stopped. The assessee "the CCI" challenged the constitutional
validity of the Cess by filing writ petition in the High Court. The
High Court of Orissa declared the Cess unconstitutional on the ground
that it was beyond the legislative competence of the State Legislature,
but rejected the prayer of the assessee for a direction to the State to
grant refund of the Cess collected from the assessee. Against the
decision of the Orissa High Court the assessee filed appeal in the
Supreme Court of India, whereas the State of Orissa has filed a
cross-appeal.
In appeal to the Supreme Court, it was contended on behalf of the State
of Orissa; that
(i) The levy of Cess being referable to Entries 5, 6, 45, 49 and 50 of
the State List of the Seventh Schedule of the Constitution the impugned
legislation was within the legislative competence of the State
legislature;
(ii) The limitations imposed in the statute on the modes of utilization
of Cess supports a view that the Cess is fee on which the State
legislature is competent to legislate under Entry 23 read with Entry 66
of the State List;
(iii) Since the impugned Act was concerned with the raising of funds to
enable workers to do their works better and also help local
administration and take steps for proper development of the area under
their jurisdiction, the impugned legislation was referable to Entry 5
of State List; and
(iv) The State Act is not in conflict with the Central Legislation viz.
Mines and Minerals (Regulation and Development) Act, 1957 which has not
denuded the State legislation of its competence to enact the impugned
legislation since the scope and subject matter of the two legislations
are entirely different and the impugned State Legislation does not
encroach upon the field covered by the Central Legislation i.e. 1957
Act.
Appearing for: 318, 320: 395, 396
Appearing Against: 319, 321: 397, 398
Date: 18.09.2006
Sanjay Pandey
> Appearing Against: 319, 325: 350, 352
> Date: 18.09.2006
Sanjay Pandey
The Government of India enacted "the Commodity Exchange Board of
India Act, 2005". The preamble of the Act reads, an Act to provide
for regulation, control and development of secondary commodity
marketing in India. Section 2 of the Act states "there shall be
established a Commodity Exchange Board of India (CEBI) having all
regulatory authority in cases of functioning of commodity exchanges
established under the regulations made by the CEBI. The CEBI shall
comprise of a chairperson and three other members appointed by the
Central Government by notification issued in the official gazette and
all such expenditure towards functioning of the CEBI shall be charged
on the consolidated fund of India. Section 3 of the Act states "no
person or association of persons shall trade in commodities listed in
schedule of this Act unless the person is so registered with the
Commodity Exchange Board of India." Section 4 of the Act reads,
"the CEBI shall have all powers of a civil court in order to execute
mandates of this Act and shall be the prime adjudicator in case of any
dispute arising under this Act and no court except the High Court under
Article 226 and the Supreme Court under Article 136 shall exercise any
jurisdiction in matters related to or falling within CEBI Act 2005."
Section 5 provides that the CEBI shall frame its rules and regulation
for efficient functioning and regulation of commodity market under the
Act. Section 6 provides for punishment and penalty - "those found
contravening any provisions of this Act shall be banned from trading in
commodity market and be also liable to fine up to Rs.5lakh and
cancellation of registration. Section 7 provides, "notwithstanding
anything in any law for the time being in force in cases of conflict of
the provisions of CEBI with any other law, the provision or any
provisions of such other law as the case may be shall be deemed to be
repealed by this Act." In exercise of powers under the Act the
Central Government appointed the chairperson and members of the CEBI.
In the present case a commodity trader from Rajasthan has challenged
the validity of the CEBI Act, 2005 in the Supreme Court of India. His
main contentions are that sections 3, 4 and 7 of the Act are
unconstitutional and other provisions are unconscionable to rule of law
and constitutional scheme of distribution of power thus liable to be
struck down.
Appearing for: 322, 323: 395, 396
Appearing Against: 324, 321: 397, 398
Date: 21.09.2006
Sanjay Pandey
India
Krishi Upaj Sangharsh Samiti (KUSS) is a registered society of farmers
in Rajasthan and does carry a number activity suitable for protecting
the interest of farmers in the State, which include providing extension
services and awareness as to prevailing prices and price determination,
viability of crop cycle restructuring etc. In 2005 Food Corporation of
India (FCI) started procuring wheat @ Rs.750 per quintal in the month
of April-May though according to prevailing standards farmers were
expecting procurement price not less than Rs.850 per quintal. Since the
price offered by the FCI was higher in comparison to price offered by
private buyers, some of the farmers sold their produce to FCI. This
whole mechanism of price difference hinted towards control of market by
intermediaries. Keeping in view demand of wheat, the farmers either
refrained from selling their produce to FCI or to the intermediaries.
More so majority of farmers started taking their produce to warehouses
under wait and watch policy.
Finding falling procurement status the Government of India issued wheat
control order 2005 through which ban were imposed through out India on
storage and hoarding of wheat provided that storage is for making
profit purposes. The Order reads: No person without the authority of
the central government or the state government shall authorize or
operate warehousing business in wheat during the continuation of the
wheat control order 2005. Further that, individuals are not allowed to
store wheat anywhere in the local area in access of 3 quintals per
member of the family. The order also provided that any contravention of
this order shall yield seizure of stored wheat and also result in
payment of fine @ Rs.100 per quintal of wheat stored or up to Rs.30,
000 whichever is maximum.
It must be noted that Financial Express published a report on 3rd June
2005 according to which, farmers were offered lesser price due to
negligent calculation by the CACP (Commission on Agricultural Cost and
Prices). The report stated that on three indices namely, Cost of
production, Changes in input prices, and Input-output price parity, the
calculation was faulty and that led to determination of price i.e.
Rs.750 per quintal MSP (Minimum Support Price) for wheat in year 2005.
Had it been calculated properly MSP would have been determined @ Rs.850
per quintal. This fact was accepted by the CACP in its press statement
dated 1st June 2005 appearing in Delhi edition of Financial Express.
The KUSS has filed a writ petition in the High Court stating that
control order 2005 is ultra vire the parent Act and also
unconstitutional thus liable to be struck down.
Appearing for: 327, 326: 394, 392
Appearing Against: 328, 325: 393, 391
Date: 25.09.2006
vinati gupta
Sanjay Pandey
Sanjay Pandey
Chairman, Journal Committee
Asst. Professor, National Law University, Jodhpur
Rajasthan.
NH 65, Nagaur Road, Mandore, Jodhpur
Phone: 91-291-5121595 (Res); 2577530 (Off)
Fax: 91-291-2577540
Sanjay Pandey
On 12 June 2006 the Representation of the People Act, 1951 was amended
and section 4A was added, which reads "Notwithstanding anything in
the Representation of the People Act, 1951 or any other law for the
time being in force a person shall not be qualified to be chosen to
fill a seat in the House of the People; and shall have no right to
exercise voting rights in any Parliamentary of Legislative Assembly
election, if he has been convicted for any offence or sentenced to
imprisonment for two years or more".
A competent court in Jodhpur tried Ram Naresh for the offence of theft
and sentenced him for two years of imprisonment. Ram Naresh appealed in
the higher court but to no avail. During September 2005 he appealed to
the Supreme Court and his appeal was dismissed. Ram Naresh was a
political activist prior to his arrest in the present case and has a
very high political clout in the area but as the local people say he
has become victim of political rivalry and opponents were successful in
planting the present case, which duped him of his political career.
Considering the amendment of 2006 which has been made retrospective has
literally effect of debarring 1 lakh people from elections to the
Parliament or to Legislative Assembly. Ram Naresh filed a writ petition
in July 2006 seeking appropriate writ in the High Court at Jodhpur to
quash the amendment, soon thereafter at various High Courts in the
Country writ petitions were filed for declaration of the present
amendment as unconstitutional. The Hon'ble High Court - Jodhpur
dismissed the writ petition after hearing the party and stated in a
reasoned judgment that the present amendment is constitutional and is
in interest of basic structure of the Constitution of India.
Now this matter along with various other decisions of the High Courts
has come to the Supreme Court of India.
Appearing for: 331, 329: 390, 389
Appearing Against: 330, 328: 387, 388
Date: 28.09.2006
Sanjay Pandey
India
In light of the Supreme Court's opinion in a number of cases
including Special Reference No. 1 of 2001, In Re: Cauvery Water Dispute
Tribunal 1993 (Supp.1) SCC 96, and in Calcutta Gas Company
(Proprietary) Ltd. v. State of West Bengal and Ors. AIR 1962 SC 1044,
the State of Karnataka and other States such as Uttar Pradesh, Gujarat,
West Bengal and Jharkhand have brought a federal suit in the Supreme
Court stating that when some element of "public law" forms a
component of the dispute between Union and the State(s) then a suit can
be brought before the Supreme Court under article 131. It is contended
by the States that as in the case of a right in the flowing water of
rivers, which considered as a right 'publici juris', i.e. a right
of public but the Hon'ble Supreme Court has blended this right with
the rights of the States in India. Similarly, in case of Mines Act,
Mines and Minerals Regulation and Development Act and regulation and
control on natural gas, the people of the entire country has also a
stake and its benefit has to be shared by the whole country.
The States have contended that there should be just and reasonable use
of natural resources for national development. If the Central
government alone is allowed to extract and use natural resources, then
other States will be deprived of its equitable share and they have to
be dependent on the Central government for a number of developmental
purposes for example development of the given area. This is also,
contended by the States that in last more than fifty years of such
excessive control on natural resources the Central Government was
unable to do proper development. Such unitary control on natural
resources have never been the intention of constitution-makers and this
position goes on to fortify the stand adopted by the States.
The expressions in the Constitution cannot be compartmentally
interpreted and thus it is high time that a cooperative federal system
be allowed to exist as mandated by the Constitution of India. The
Plaintiff States have stressed on the fact that decisions of the
Hon'ble Court in West Bengal v. Union of India, Special Reference No.
1 of 2001, and of Calcutta Gas Company (Proprietary) Ltd. v. State of
West Bengal and Ors. AIR 1962 SC 1044 needs to be re appreciated.
Accordingly the Plaintiffs have prayed for declaration that i) Central
Government's absolute control on natural resources be struck down ii)
the Hon'ble Court may be pleased to declare that States' right
under part XII of the Constitution is not controlled by Part XI, and
accordingly the law making entries be interpreted iii) any other order
or direction as the Hon'ble Court deems fit in the best interest of
Plaintiffs and according to justice, equity and good conscience.
Appearing for: 332, 333: 386, 383
Appearing Against: 334, 335: 385, 384
Date: 2.10.2006
krati somani
Instead of Roll No. 329, Roll No. 356 shall be appearing for the CRE scheduled on the 28th of September. And Roll No. 329 shall be appearing in place of Roll No. 356 on the 12th october approximately. Kindly make the necessary changes to avoid any confusion.
Thanking you
Krati Somani
Roll No. 329
Section A
Sonali Singh
instead of roll no. 387, roll no. 362- Ghansham will be appearing for the moot problem scheduled on 28th september' 06. roll no. 387 will appear for the moot problem which will be scheduled on 23rd october'06 most probably.
thanking you.
Sonali Singh
roll no. 387
Sanjay Pandey
In exercise of its power conferred upon it under Section 5 of the
Lotteries (Regulation) Act, 1998, which reads "a State Government
may, within the State, prohibit the sale of tickets of a lottery
organized, conducted or promoted by every other State", a declaration
was made on 5.06.2006 by the Government of Rajasthan that the State of
Rajasthan shall be a free zone from online and internet lotteries. By
reason of the said notification sale of all computerized and online
lottery tickets marketed and operated through vending machines,
terminals, electronic-machines, and through Internet in the State of
Rajasthan became prohibited with immediate effect.
It must be noted that the States of Sikkim and Meghalaya are pioneers
in electronic and online lottery in India and in exercise of powers
under Article 298 read with Article 162 of the constitution of India
both the States have issued orders on similar lines, which read "the
State Government shall auction operation and maintenance of online and
electronic lotteries on year to year basis to the highest bidder and
all the functions of the bidder shall be closely scrutinized by the
Finance Department of the Government and under direct supervision and
control of finance secretary in order to promote confidence and trust
of people in such lotteries". The highest bidder for year 2006-07 in
both the States is 'Basics Enterprises', who being offended by the
action of State of Rajasthan filed a writ petition in the High Court
pleading that State action is arbitrary and ultra vire the law. The
learned advocate general has taken plea that firstly this writ petition
is not maintainable because two States can not be party before a high
Court and Secondly the order dated 5.6.2006 is valid. It was further
contended that the petitioners in the present case are mere smoke
screens of the States of Sikkim and Meghalaya.
The said contention was upheld by a learned bench of the High Court
holding, inter alia, that the agent of the State of Sikkim and State of
Meghalaya had no locus standi to maintain the writ petitions in view of
the fact that they did not have any independent right in that behalf,
secondly if States are contesting action of the Government of Rajasthan
then appropriate forum shall be under Article 131 of the Constitution
of India. Thus writ petition dismissed.
Appearing for: 336, 337 (345): 382, 381
Appearing Against: 33, 340: 380, 379
Date: 5.10.2006
Sivaram Krishnan
Since roll. no 336 is appearing for the CRE on Monday, i.e. 1st
October, 2006, his spot should be filled in by Roll. no. 341. However,
roll nos. 341 and 343 have exchanged their scheduled turns, and I
(Roll. No. 343) will be appearing on the side of Basics Enterprizes on
thursday, i.e. 5th October, 2006.
Kindly oblige by making the necessary changes so as to avoid further
confusion.
Thanking You
Sivaramakrishnan M.S.
Roll 343
Sanjay Pandey
The Parliament enacted the Securitization and Reconstruction of
Financial Assets and Enforcement of Security Interest Act, 2002 (Act
No.54 of 2002). The Constitutional validity of this Act was questioned
in Mardia Chemicals Ltd. Etc. vs. Union of India (UOI) and Ors., AIR
2004 SC 2371. The vires contended were more particularly in the
provisions as contained in Sections 13, 15, 17 and 34 of the Act. The
Supreme Court stated that the objections pointed out are not as such,
which render the statute invalid or unconstitutional. The problems
about working of any particular provision of the Act in any particular
factual situation may be considered as and when it may arise.
The Parliament enacted the Lender Liability Act, 2006 (LLA) in order to
complement the Securitisation and Reconstruction of Financial Assets
and Enforcement of Security Act, 2002. The Act of 2006 is considered as
an outcome of negotiable decision in Mardia Chemicals Ltd. Etc. vs.
Union of India (UOI) and Ors., AIR 2004 SC 2371. The LLA provides in
its objective "an Act to provide for accountable lending and respite
to borrowers against unscrupulous lending". It must be noted that the
LLA has only five Sections and its construction depends on various
other laws.
Section 1: The short title of the Act shall be Lender Liability Act,
2006 and the Act shall come into force at once.
Section 2: Definitions- unless repugnant to the context all words and
phrases used in this Act shall have the same meaning as provided in any
other parliamentary law for the time being in force. In case of
inconsistency literal meaning shall be accorded to such words and
phrases.
Section 3: Lender shall not file any recovery proceeding in any court
or tribunal unless fair opportunity is accorded to borrower for
representing his case.
Section 4: In cases of unscrupulous lending accountability shall be
fixed on the lender and lender shall not be allowed to file any
recovery proceeding.
Illustration: 'A' was invited by a bank over telephone to obtain a
loan, when 'A' approached the bank; they immediately processed the
loan considering pay slip and income tax returns of 'A'. The bank
did not investigate credit worthiness of 'A'; the bank shall have
no right to recover the loan.
Section 5: The lender shall be liable as if a borrower in cases of
third party liability or environmental liability. Illustration: Where
money lent is used for the purposes or has resulted in loss to
environment or bio diversity, the lender shall be liable to compensate
the loss.
The All India Bankers Association has filed a writ petition in Delhi
High Court contending that the LLA 2006 is ultra vire the constitution
of India on the ground that Article 14 hits the present law and it is
also inconsistent with another parliamentary law i.e., the
Securitization and Reconstruction of Financial Assets and Enforcement
of Security Interest Act, 2002.
Appearing for: 341, 343: 378, 375
Appearing Against: 342, 344: 376, 374
Date: 9.10.2006
Reshma Vaidya
Sanjay Pandey
The Parliament enacted Armed Forces Commission (Regulation) Act, 2006.
The Act gives the President of India the authority to jail nearly
anyone, including citizens, without a judgment of guilt or innocence.
It removes the right of habeas corpus, meaning that such people may not
challenge their detention as illegal. The Act allows for secret
evidence to be used against such people in court. It prevents the
courts from hearing challenges to the legality of any of these
measures. The main objective of this Act is to curb menace of
terrorism. The objective clause reads "to facilitate bringing to
justice terrorists and other unlawful enemy combatants through full and
fair trials by military commissions, and for other purposes. This law
has come into force from 12.08.2006.
It is to be noted that the act legalizes what would be considered
torture under Common Article 3 of the Geneva Conventions. Furthermore,
the Act states that the president, not the courts, may make the
authoritative interpretation of Geneva Convention Act. Anyone who
claims to have been tortured may not exercise the rights Geneva grants.
In summary, the Act gives the President the sole authority to determine
whether or not someone is a terrorist, to define torture, and to deny
nearly any and all attempts to challenge his authority in court except
to see whether there exists a presidential order. The Act was
challenged in the Supreme Court by a NGO "YOUTH FOR PEOPLES" on the
ground that the present Act is not in conformity of India'a
international commitments and secondly that the present law is an
attempt to destruct federal fabric of the constitution. Of the several
provisions of the Act two provisions have been challenged as
unconstitutional (reproduced below)
Section 3 reads: The President shall have authority to convene Armed
Force Commissions anytime as it is authorized by the constitution and
arises from the Constitution's vesting in the President of the
executive power and the power of Commander in Chief of the Armed
Forces. The president may use any existing law for the purpose of
giving effect to mandate of this Act.
Section 5: Notwithstanding anything in anylaw for the time being in
force no provision of the Criminal Procedure Code, 1973 or the Indian
Evidence Act, 1872 shall apply to Armed Forces Commissions, Which shall
have power to apprehend and try any person who is confirmed to be a
terrorist.
Appearing for: 345, 346: 373, 372
Appearing Against: 347, 348: 371, 370
Date: 12.10.2006
krati somani
With regards to the CRE on the 12th October, since Roll no. 346 is appearing on the 9th of October, and I (Roll no. 329) had exchanged with Roll no. 356, which is the next Roll no in turn for the CRE, I will be appearing instead of Roll no. 346 on the 12th.
Kindly make necessary changes so as to avoid further confusion.
Thanking You
Krati Somani
Roll No. 329
Sanjay Pandey
In order to promote investment and create a scenario of development in
Rajasthan, the Government of Rajasthan has taken a decision in its
cabinet meeting on 15.04.2006 that SEZ (Special Economic Zone)
regulations need to be notified so that incentives could be given to
those entrepreneurs who are investing in Rajasthan through the given
SEZ. The Government decided to establish one SEZ in Alwar district. A
gazette notification regarding establishment of SEZ has been issued on
20.4.2006.
The notification reads:
1. Those interested in establishing entrepreneurial activity in the SEZ
may apply to the competent authority for permission.
2. Single application procedure shall be followed for the grant of
permission, concessional allotment of land, electricity connection etc.
3. Any entrepreneurial activity in the SEZ must employ at least 150
persons from the State of Rajasthan.
4. Minimum investment in entrepreneurial activity in the SEZ must not
be less than Rs.5 crores.
5. Every establishment in the SEZ shall be given exemption from all
taxes payable to State of Rajasthan for a minimum period of four years,
however tax exemption may be given for more than four years in special
circumstances.
6. The competent authority shall process applications within a period
of fifteen days from the date application is so filed for obtaining
permission.
Goverdhan Das is an entrepreneur in the city of Alwar carrying on
business in a number of areas for which permissions are given in SEZ.
There are more than 200 entrepreneurs like Goverdhan Das in Alwar. All
such entrepreneurs find that the given Governmental notification is
forcing them to close down their entrepreneurial activities because in
purview of incentives given by the Government for operating and
establishing entrepreneurial activity in the SEZ, they stand out of
competition and shall be forced to close down their entrepreneurial
activity. All these people along with a NGO "people for Action"
filed a writ petition in the Rajasthan High Court at Jaipur seeking a
writ of mandamus to quash the notification dated 20.4.2006. The
Hon'ble High Court dismissed the writ petition stating that the
notification pertains to economic policy of the State and Court should
not interfere in such policy decisions as it may affect developmental
pace of the State. The High Court further stated in its order-dated
14.07.2006 that the impugned notification is constitutional and has no
vire requiring redressal by this Court.
Appearing for: 67, 68 [from Sec A those did not appear till now-notify
me]
Appearing Against: 66, 65[from Sec A those did not appear till
now-notify me]
Date: 16.10.2006
Sanjay Pandey
Union of India
The Reserve Bank of India in exercise of powers under section 4 of the
Banking Regulation Act, 1949 (hereinafter the Act) suspended operation
of the Act with respect to functioning of HDFC Bank (hereinafter the
Bank) on 15.08.2006. However the Bank was allowed to operate except
that the Bank shall not carry on business of borrowing, raising, or
taking up of money from public; the lending or advancing of money
either upon or without security; the buying, selling and dealing in
bullion and specie; the buying and selling of foreign exchange
including foreign bank notes; the acquiring, holding, issuing on
commission, underwriting and dealing in stock, funds, shares,
debentures, debenture stock, bonds, obligations, securities and
investments of all kinds; the purchasing and selling of bonds, scripts
or other forms of securities on behalf of constituents or others; the
negotiating of loan and advances; the receiving of all kinds of bonds,
scripts or valuables on deposit or for safe custody or otherwise; the
providing of safe deposit vaults; the collecting and transmitting of
money and securities;
The Bank filed a writ petition in the Bombay High Court seeking a writ
of mandamus to set aside the order of the Reserve Bank of India dated
15.08.2006 on the ground that the order of Reserve Bank of India is
arbitrary and hit by Article 14 of the Constitution because only HDFC
has been segregated for this action, which does not fit into reasonable
classification. The High Court dismissed the writ stating that power
under section 4 of the Act is absolute but not arbitrary and such
exercise and vesting of power is in interest of financial system of the
country.
The Bank has filed a petition under Article 136 in the Supreme Court of
India and has also prayed for raising the issue of delegation of power
and unconstitutionality of section 4 of the Act. The Bank has raised
the issue of constitutionality on the ground that the power under
section 4 needs to be exercised always by the Central Government and
not by the Reserve Bank of India.
Appearing for: 364, 363
Appearing Against: 362, 361
Date: 19.10.2006
vishista saumya
This is with regards to the 16th Oct. moot. You had asked to notify persons appearing on 16th from section A. Sir I will be appearing on 16th from appelants side. Please necessary adjustments in your records.
Thank You.
Vishista Saumya
R.No.348/2005.
III-A
Sanjay Pandey
Shri Vinod v. Union of India
Shri Vinod Sharma, learned counsel appearing before the hon'ble
Supreme Court for M/s X & Co. in the matter of M/s X & Co. v. Union of
India in SLP No.2235 of 2006, relied on a decision of hon'ble
two-Judge Bench of the Supreme Court of year 2004 in Y v. Union of
India. The hon'ble Bench relying on the submissions made by Shri
Vinod Sharma specifically in the light of decision of the Supreme Court
allowed the appeal.
Later on the Union of India moved a review petition under Article 137
of the Constitution of India, wherein it is pointed that the reliance
made by Shri Vinod Sharma in SLP No.2235 of 2006 is contrary to
decision of this Court, i.e., a three judge Bench decision in Z v.
State of Haryana, of year 2003. Having perused the matter, the
hon'ble Bench hearing the review petition, allowed the review
petition and passed a stricture against Shri Vinod Sharma, which
required Shri Sharma to present himself in person before the hon'ble
Bench and apologize for misleading the Court through relying on an
overruled judgment. In the absence of such apology the Court directed
to initiate contempt proceeding against Mr. Sharma.
While passing the order the hon'ble Supreme Court placed reliance on
a Constitution Bench decision in Pradip Chandra Parija and Ors. v.
Pramod Chandra Patnaik and Ors., [2002 (1) SCC 1] , where the hon'ble
Court held that judicial discipline and propriety demands that a Bench
of two learned Judges should follow a decision of a Bench of three
learned Judges. But if a Bench of two learned Judges concludes that an
earlier Judgment of three learned Judges is so very incorrect that in
no circumstances can it be followed, the proper course for it to adopt
is, to refer the matter before it to a Bench of three learned Judges
setting out the reasons why it could not agree with the earlier
judgment and then the Bench of three learned Judges also comes to the
conclusion that the earlier judgment of a Bench of three learned Judges
is incorrect, then a reference could be made to a Bench of five learned
Judges.
On receipt of such an order from the Hon'ble Supreme Court not only
Shri Sharma but the Supreme Court Bar Association (SCBA) also felt
highly agonized and the SCBA filed a writ petition under Article 32
against the said order of the hon'ble Court and at the same time Shri
Sharma also filed a writ petition under Article 32 of the Constitution
of India seeking quashing of the order passed by the hon'ble Court in
the review petition.
Both the matters have been posted for admission and arguments on merit
before a division bench of the hon'ble Court.
Appearing for: 360, 358
Appearing Against: 359, 357
Date: 23.10.2006
Sanjay Pandey
Union of India v. State of Rajasthan
The legislature of the State of Rajasthan debated in 2006 regarding
liability of State in cases of tort committed against citizen. The
members of the legislature agreed that even though more than 50 years
have elapsed since the commencement of the Constitution, no law has so
far been made by any legislature in India and this is high time that a
progressive State like Rajasthan should take a lead in this area. The
legislators also pointed that notwithstanding the fact that the legal
position emerging from the Constitution has given rise to a good amount
of confusion and even the judgments of the Supreme Court have not been
uniform and have not helped to remove the confusion on the subject.
In September 2006 the Rajasthan legislature enacted a law "the
Rajasthan Tort Claims Act, 2006". The Act provided for remedy against
the State authorities for tort committed by such authorities against
the citizen.
Section 1 provides - The government in the territory of the State of
Rajasthan can claim no sovereign immunity when its employees are
negligent within the scope of their employment.
Section 2 - that the government shall not liable when any of its
agents commits the torts of assault, battery, false imprisonment, false
arrest, malicious prosecution, abuse of process, libel, slander,
misrepresentation, deceit, or interference with contract rights.
However, the government is liable if a law enforcement officer commits
assault, battery, false imprisonment, false arrest, abuse of process,
or malicious prosecution.
Section 3 - Notwithstanding anything in any law for the time being in
force any person may bring appropriate action in any civil court on
which the Code of Civil Procedure is applicable.
The Government of India has filed a federal suit in the Supreme Court
seeking a declaration that the State law shall not be applicable
against the Government of India for anything done in the territory of
State of Rajasthan. The Government of India has also sought a relief in
form of declaration that State of Rajasthan is not competent to enact
such a law.
Matter is placed for hearing and argument on 26 October 2006.
Appearing for: 355, 352
Appearing Against: 354, 353
Date: 26.10.2006
Sanjay Pandey
Manohar Lal v. State of
Rajasthan
State of Rajasthan in exercise of powers given by the Constitution of
India enacted a law in year 2006. Nomenclature of the law being "the
Prohibition of Commutation of Peoples to Rajasthan Act, 2006", the
main objective of the law is to restrict people from entering territory
of Rajasthan in the case where competent authorities under the Act
suspected that the entrant might be carrying a communicable disease,
specially diseases listed in schedule one of the Act, where State of
Rajasthan does not have enough infrastructure to fight the disease.
Section 1 of the Act vested powers of arrest and examination in all
suspected cases in the directorate of Health and Family Welfare, the
Government of Rajasthan.
Section 2 provides that the directorate may entrust all or any of
powers to any authority not less than the rank and grade of Chief
Medical Officer in a district.
Section 3 states that entry prohibition shall be applicable to
domiciles of other States in India only, Foreigners or Tourists
visiting the State shall not be required to pass through the scrutiny
of this law.
Section 4 provides any person having entered the territory of Rajasthan
without the sanction and scrutiny of authorities as provided in Section
1 and Section 2 of the Act shall be deported forthwith and no Court or
Tribunal in the State of Rajasthan shall have any jurisdiction in the
present matter except a brief hearing given by the Directorate as
stated in Section 1 of the Act.
Section 5: the provisions of the Act shall remain in force for such
time period as notified by the State government in the official
gazette.
The Government of Rajasthan notified on 13.08.2006 that the Act, shall
continue to be in force in the territory of Rajasthan till the epidemic
like condition due to mosquito menace does not get over.
On a periodic check up at the Jaipur Railway Station the competent
authority required Mr. Manohar Lal to go back from Jaipur as initial
symptoms showed that he might be carrying strains of the epidemic. On
reaching Delhi Manohar Lal filed a writ in the Supreme Court.
Appearing for: 351, 350
Appearing Against: 349, 304
Date: 30.10.2006