VOL II                                                      ISSUE NO. 17                                         August 14, 2017          

In This Issue

India: Madras High Court holds that it can entertain petitions to direct Police to register FIR by inherent powers under Section 482

 

In a recent Petition filed by Mr. K. Raghupathy against the Commissioner of Police and the Sub-inspector of Police under Section 482 of the Criminal Procedure Code (CrPC), seeking relief that the Hon’ble Court may direct the Respondents to register the Complaint filed by the Petitioner

.................................................................................................

India: Central Government notifies the Tribunal, Appellate Tribunal and other Authorities (Qualification, Experience and Other Conditions of Members) Rules 2017- Is this a Blatant Attempt to Curb the Functioning of the National Green Tribunal?

The Department of Revenue, Ministry of Finance vide notification dated June 1, 2017, in exercise of its powers under Section 184 of the Finance Act, 2017 has notified the Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2017. Under the Rules, the Central Government has notified the Term of Office, the Retirement Age, Composition of the Search-cum-Selection Committee and the Qualifications for Appointment of the presiding and other Members of 19 Tribunal(s) / Appellate Tribunal(s) / Authority(s).

.................................................................................................

India: Delhi High Court on appeals post transition from Commercial Courts Ordinance to Commercial Courts Act

 

In a recent order of the Division Bench of the Delhi High Court in the case of Simplex Infrastructure Limited vs Energo Engineering Projects Limited, Simplex Infrastructure filed a review petition seeking review of an earlier order passed on December 10, 2015, in which the Court dismissed the grant of certain interim reliefs against Energo Engineering Projects Limited. The Court rejected the claim for interim reliefs because there was no arbitration clause between the two concerned parties in the Deed of Joint Undertaking and thus, the petition was not maintainable under Section 9 of Arbitration and Conciliation Act, 1996.

.................................................................................................


India: Madras High Court holds that it can entertain petitions to direct Police to register FIR by inherent powers under Section 482

 

Source : www.hcmadras.tn.nic.in

 

In a recent Petition filed by Mr. K. Raghupathy (hereinafter referred to as the “Petitioner”) against the Commissioner of Police and the Sub-inspector of Police (hereinafter collectively referred to as the “Respondents”) under Section 482 of the Criminal Procedure Code (CrPC), seeking relief that the Hon’ble Court may direct the Respondents to register the Complaint filed by the Petitioner. The Registry expressed doubts over the maintainability of this petition in view of the judgment titled Sugesan Transport Pvt. Ltd. vs. Assistant Commissioner of Police & Anr. [2016 (5) CTC 577], passed by a single judge of the Madras High Court. However, the Hon’ble Justice Mr. M.S. Ramesh clarified that the petition was indeed maintainable, and that the Court has the power to grant such directions under Section 482 CrPC.

 

Background:

 

The Petitioner had filed the above mentioned petition before the High Court of Madras under Section 482 of the Code of Criminal Procedure, praying that the Respondents be directed to register the complaint filed by him on June 13, 2017. As per the prescribed procedure in such circumstances, i.e., where the Police officer does not register a complaint relating to a cognizable offence, the complainant may either seek directions from the Superintendent of Police under Section 154(3) or institute a complaint before the Magistrate of First Class under Section 190 of the Code to get the complaint registered and for further enquiry. The present petition was referred to the Hon’ble Single Judge for examining its maintainability in the light of the abovementioned judgment (Sugesan Transport) wherein it was held that the High Court could not pass such direction without exhausting the alternate remedies provided under Section 154 and Section 190 read with Section 200 of CrPC.

Issue before the Court:

 

Whether a petition under Section 482 seeking direction from the High Court to the Police to register a complaint is maintainable?

 

Observations by the Court:        

 

Before proceeding with the observations of the Hon’ble Court, it would be beneficial to reproduce Section 482 hereinbelow for ready reference;

    “Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.”

The Hon’ble Single Judge observed that Section 482 of the Criminal Procedure Code begins with a non-obstante clause, meaning the alternate remedy available under the CrPC cannot be an embargo for the High Court from exercising its inherent powers to secure the ends of justice. The Hon’ble Court further referred to the judgments of Ramesh Kumari v. State (NCT of Delhi) and Ors. [2006 (1) CTC 666] and Prabhu Chawla v. State of Rajasthan and Anr. [CDJ 2016 SC 810] passed by the Hon’ble Supreme Court of India. The Apex Court, in the aforesaid cases had held that the ground of alternative remedy is not a bar to invoke Section 482 CrPC and when an extra-ordinary situation excites the High Court’s jurisdiction, there cannot be a total ban on the exercise of its inherent powers. Following the aforesaid judgments of the Hon’ble Supreme Court, the Learned Single Judge held that the petition for a direction to register a Police complaint under Section 482 CrPC is maintainable before the High Court.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 Back To Top


India: Central Government notifies the Tribunal, Appellate Tribunal and other Authorities (Qualification, Experience and Other Conditions of Members) Rules 2017- Is this a Blatant Attempt to Curb the Functioning of the National Green Tribunal?

 

Source : www.greentribunal.gov.in

The Department of Revenue, Ministry of Finance vide notification dated June 1, 2017, in exercise of its powers under Section 184 of the Finance Act, 2017 has notified the Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2017[1] (hereinafter referred to as “Rules”). Under the Rules, the Central Government has notified the Term of Office, the Retirement Age, Composition of the Search-cum-Selection Committee and the Qualifications for Appointment of the presiding and other Members of 19 Tribunal(s) / Appellate Tribunal(s) / Authority(s). In this article, our focus will be the impact of the Rules on the National Green Tribunal and its functioning.

  1. Section 184 of the Finance Act, 2017

    Section 184 of the Finance Act, 2017[2] deals with the power of the Central Government to make rules for the qualifications, appointment, term of office, salaries and allowances, resignation, removal and the other terms and conditions of service of the Chairperson, Vice-Chairperson, Chairman, Vice-Chairman, President, Vice-President, Presiding Officer or Member of the Tribunal, Appellate Tribunal or, as the case may be, other Authorities. Section 184, therefore, gives the Central Government wide-ranging powers for appointment of members to 19 Tribunals by amending 19 existing laws. It is pertinent to note that since the Finance Act, 2017 was a Money Bill, the same did not require approval from the Rajya Sabha (Upper House of Parliament) with the Central Government using its majority in the Lok Sabha (Upper House of Parliament) to pass the Finance Act, 2017. Reports show that the amendments regarding to above-mentioned notification were included only at the eleventh hour[3] .

  1. Amendment in Appointment of Members of the National Green Tribunal

    Section 182 of the Finance Act, 2017 inserted Section 10A in the National Green Tribunal Act, 2010. Section 10A of the NGT is as follows:

     

    "10A. Notwithstanding anything contained in this Act, the qualifications, appointment, term of office, salaries and allowances, resignation, removal and other terms and conditions of service of the Chairperson, Judicial Member and Expert Member of the Tribunal appointed after the commencement of Part XIV of Chapter VI of the Finance Act, 2017, shall be governed by the provisions of section 184 of that Act: Provided that the Chairperson, Judicial Member and Expert Member appointed before the commencement of Part XIV of Chapter VI of the Finance Act, 2017, shall continue to be governed by the provisions of this Act, and the rules made thereunder as if the provisions of section 184 of the Finance Act, 2017 had not come into force".

     

    A major change has been made in the qualifications of persons who may be appointed as the Chairperson and as Judicial Members of the National Green Tribunal (hereinafter referred to as “NGT”). As per Section 5 of the NGT Act, 2010, no person could be the Chairperson or a Judicial Member of the NGT unless they are or were a Judge of the Supreme Court of India or Chief Justice of a High Court.

     

    Qualifications of Chairperson

     

    However, with the passage of the Rules, the qualifications of persons who may be appointed as the Chairperson of the NGT have been revised as follows:

    • is, or has been, or is qualified to be, a Judge of Supreme Court; or

    • is, or has been, Chief Justice of a High Court; or

    • has, for a period of not less than three years, held office as Judicial Member or Expert Member; or

    • is a person of ability, integrity and standing, and having special knowledge of, and professional experience of not less than twenty-five years in law including five years’ practical experience in the field of environment and forests.

    Qualification of Judicial Member

     

    Further, the qualifications of persons who may be appointed as a Judicial Member of the NGT have been revised as follows:

    • is, or has been, or is qualified to be, a Judge of High Court; or

    • has, for at least ten years, held a judicial office in the territory of India;

    It is pertinent to note that an Advocate has practiced for 10 years is qualified to be a High Court Judge and the revised qualifications do away with the requirement that a Judicial Member of the NGT are or were a Judge of the Supreme Court of India or Chief Justice of a High Court. Further, a person who has held a judicial office of not less than ten years is also qualified to be appointed as a Judicial Member. The term “Judicial Office” is quite wide in its connotations and can include Districts and Sub-ordinate courts as well as Appellate Tribunals.

    Supreme Court’s previous observations

     

    In a previous case, the question before the Supreme Court was whether Chapters 1B and 1C of the Companies Act, 1956 which provided for the constitution of the National Company Law Tribunal and National Company Law Appellate Tribunal were constitutionally valid. The Supreme Court in Union of India v. R. Gandhi[4] had observed that:

     

    “……the fact that senior officers of civil services could function as Administrative Members of Administrative Tribunals, does not necessarily make them suitable to function as Technical Members in Company Law Tribunals or other Tribunals requiring technical expertise”.

     

    The Court in Union of India v. R. Gandhi had also gone to observe that:

     

    “The speed at which the qualifications for appointment as Members are being diluted is, to say the least, a matter of great concern for the independence of the Judiciary”.

  1. Search-cum-Selection Committee

    The membership of the Search-cum-Selection Committee for the post of Expert Members has been also been revised. Earlier the Chairperson of the National Green Tribunal and a Sitting Judge of the Supreme Court were members of the Search-cum-Selection Committee with the Sitting Judge of the Supreme Court nominated by the Chief Justice of India being the Chairperson of the Search-cum-Selection Committee. However, with the amendment, the membership of the Committee no longer contains the Chairperson of the National Green Tribunal and a Sitting Judge of the Supreme Court, with the Chairperson of the Search-cum-Selection Committee being a Government appointee.

     

    In South India Music Companies versus Union of India[5] the Madras High Court struck down the selection committee that had been set up for handling appointments to the Copyright Board for having a majority of bureaucrats from the executive. The Court had observed that: “…Committee constituted with the overdose of Executive cannot be sustained in the eye of law.”

  1. Procedure for inquiry of misbehavior or incapacity of the Member

    Section 10 (2) of the NGT Act, 2010 stated that:

     

    “The Chairperson or Judicial Member shall not be removed from his office except by an order made by the Central Government after an inquiry made by a Judge of the Supreme Court in which such Chairperson or Judicial Member has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges”.

     

    This provision provided a safeguard from the Executive as a Supreme Court judge was vested with the responsibility of conducting an inquiry into any allegations of misbehavior or incapacity on behalf of the Chairperson of the NGT or a Judicial Member.

     

    The Rules, however, make the nodal ministry from the Central Government, i.e. the Ministry of Environment and Forests (hereinafter referred to as “MoEF”) responsible for conducting the inquiry with a written complaint against any member of the NGT to be scrutinized by the MoEF. After a preliminary scrutiny of the complaint, the MoEF, if it is of the opinion that there are reasonable grounds for an inquiry, shall make a reference to a committee constituted under Rule 7 to conduct an inquiry. The rules, however, are silent on the composition of the committee which will be responsible to make recommendations to the Central Government, which on the basis of the recommendations, may remove the member from the NGT.

  1. Petition by SAFE

    A petition has been filed before the Supreme Court challenging the constitutionality of amendments that have been made in the NGT Act, 2010 through the Finance Act, 2017 with the petitioner, Social Action for Forest and Environment arguing that the amendments will weaken the functioning of the NGT and curtail its powers. The Supreme Court in its order dated July 28, 2017 has given the Central Government a period of two weeks to provide its response to the petition.

  1. Conclusion

    A brief review of the observations of the Courts in Union of India v. R. Gandhi and South India Music Companies versus Union of India, shows that the Courts have generally taken a position that the independence of the Judiciary is to be maintained and attempts by the Executive to interfere in the Judicial function have generally been strongly stuck down. This attempt by the Central Government to bring wholesale changes in the Appointment process of Members to Tribunals is also likely to struck down as unconstitutional.

[1]http://dor.gov.in/sites/default/files/Rules%202017.pdf 

[2]http://www.dhc.co.in/uploadedfile/1/2/-1/Finance%20Act%202017.pdf 

[3]http://www.thehindu.com/news/national/the-finance-bill-2017-a-brute-majority-and-its-far-reaching-consequences/article17663444.ece

[4](2010) 11 SCC 1

[5]W.P.No.6604 of 2015

 

 

 

 

 

                                                                                                  Back To Top


India: Delhi High Court on appeals post transition from Commercial Courts Ordinance to Commercial Courts Act

 

 

Source : delhihighcourt.nic.in

 

Brief Background

 

In a recent order of the Division Bench of the Delhi High Court in the case of Simplex Infrastructure Limited vs Energo Engineering Projects Limited, Simplex Infrastructure (hereinafter referred to as the ‘Petitioner’) filed a review petition seeking review of an earlier order passed on December 10, 2015, in which the Court dismissed the grant of certain interim reliefs against Energo Engineering Projects Limited (hereinafter referred to as the ‘Respondents’). The Court rejected the claim for interim reliefs because there was no arbitration clause between the two concerned parties in the Deed of Joint Undertaking and thus, the petition was not maintainable under Section 9 of Arbitration and Conciliation Act, 1996 (hereinafter referred to as the ‘1996 Act’).

 

Issue

  • Whether the Court has jurisdiction to adjudicate upon the petition under Section 9 of the 1996 Act?

Contentions of the Petitioner

 

The Petitioner submitted that Section 10 (2) of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Ordinance, 2015 (hereinafter referred to as the ‘2015 Ordinance’), stated that the Commercial Appellate Division of a High Court exercised jurisdiction over applications and appeals arising out of arbitration under the 1996 Act, and thus, passed the aforementioned order on December 10, 2015. Subsequently, placing reliance on Ascot Estates Pvt. Ltd. v Bon Vivant Life Style Limited[1] , he submitted that when the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 (hereinafter referred to as the ‘2015 Act’) was passed, Section 10 (2) was slightly changed and such matters were to be adjudicated by the Commercial Division of the High Court i.e. a Single Judge and not a Division Bench. The Counsel further submitted that the ‘2015 Act’ was retrospective in applicability with effect from October 23, 2015, i.e. the date when the ordinance was passed.

Interpreting Section 13 of the ‘2015 Act’, the Petitioner stated that though any action taken under the Ordinance shall be deemed to have been done under the provisions of the Act, but it did not apply to judicial orders passed under the Ordinance by a Court that lacked jurisdiction[2] . He stated that even though this ground of lack of jurisdiction was not raised in the first instance, the petitioner had the right of raising such ground in subsequent proceedings[3] .

 

He further submitted that the aforementioned interpretation constituted a valid ground for review under Order XLVII Rule 1 of Code of Civil Procedure, 1908 (hereinafter referred to as the ‘CPC’).

 

Contentions of the Respondent

 

The Respondent relying on Section 13 of the 2015 Act, put forward its contention that any action taken under the Ordinance shall be deemed to be taken under the provisions of the ‘2015 Act’. It was also submitted that in the initial petition the prayer of the Petitioner had been dismissed. The Respondent further submitted that an action taken under a previous enactment is saved and held valid under Section 6 of the General Clauses Act, 1897 even after the amended statute becomes operative.

 

Judgment

 

The Court, while clearing its stand on the applicability and scope of Section 13 of the ‘2015 Act’ held that a judgement or order rendered by this Court that lacked jurisdiction in such matters would lie outside the purview of Section 13 while applying the ‘2015 Act’ retrospectively[4] .

 

The Court relied on The Hon’ble Supreme Court’s judgement in the case of Raja Shatrunji v. Mohammad Azmat Azim Khan[5] , and held that the ‘2015 Act’ in this case is fully effective and operative from October 23, 2015. It stated that the decision of the Commercial Appellate Division of the High Court was an “error on the fact of the record”. It was thus held that the Division Bench lacked jurisdiction to entertain application under Section 9 of the 2015 Act, and that such application had to be heard by the Commercial Division that comprised of a Single Judge.

 

The Review petition was thus allowed and order dated December 10, 2015 was recalled and reviewed.

 

[1] OMP (Comm) No. 16 of 2015

[2] Raja Shatrunji v. Mohammad Azmat Azim Khan, 1971 (2) SCC 200

[3] Union of India v. Sube ram, (1997) 9 SCC 69

[4] Ascot Estates Pvt. Ltd. v. Bon Vivant life Style Limited, OMP (Comm) No. 16 of 2015

[5] Supra.

Back To Top


  |   |   |   |   |   |   |   |   |   |  
© Copyright 2016-17, S.S. Rana & Co. All rights reserved