Supreme Court sets aside bail rejection order by Justice Dr. Anshuman in a case of criminal misconduct by a public servant

In Rajni Priya vs. The State Through Central Bureau of Investigation, Bihar (2025), Supreme Court's Division Bench of Justices Manoj Misra and Ujjal Bhuyan allowed the criminal appeal. The Court's 3-page long order reads: "The order dated 20.06.2025 of the High Court rejecting the bail prayer of the appellant is set aside. The appellant shall be released on bail on such terms and conditions as the Trial Court concerned may deem fit and proper to impose in the facts and circumstances of the case."  

The appeal arises from a 4-page long order dated June 20, 2025 passed by Dr. Anshuman of the Patna High Court rejecting the bail prayer of the appellant in connection with RC Case No.14(A)/2017 corresponding Special Case no.12/2020. The contention of the counsel for the appellant was that the prosecution case was in respect of fraudulent transfer from account of the organization. It was contended that appellant acted as a co-signatory for a very short duration when allegedly there were limited unlawful transactions. Moreover, the other co-signatory had been granted bail. It was also contended that since appellant had already suffered over two years of incarceration; she being a lady was entitled to be released on bail pending trial. 

The counsel for the respondent opposed the prayer for bail of the appellant but could not dispute that co-signatory has been granted bail and that appellant had already suffered more than two years of incarceration pending trial. 

The High Court had heard the criminal miscellaneous application filed under Sections 483 and 484 of the Bharatiya Nagarik Suraksha Sanhita, 2023 for grant of regular bail to the petitioner who was in custody in connection with R.C. Case No.14(A)/2017 corresponding to Special Case No.12 of 2020, under Sections 409/420/467/468/471/34/120B of the Indian Penal Code and under Sections 13(2)/13(1)(c)/(d) of the Prevention of Corruption Act, 1988 pending in the Court of Special Judge, CBI-II, Patna. 3. Earlier prayer for bail of the petitioner was rejected by the High Court vide order dated 22.02.2024 passed in Cr. Misc. No.11113 of 2024. The counsel for the petitioner had submitted that charge was already framed against the petitioner in this case and he was in custody since August 11, 2023. He submitted that no purpose would be solved keeping the petitioner in custody and petitioner was being unnecessarily harassed.

Section 13 of the Prevention of Corruption Act, 1988 deals with the criminal misconduct by a public servant. Section 13 [(1) reads: "A public servant is said to commit the offence of criminal misconduct,-(a)if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or any property under his control as a public servant or allows any other person so to do; or(b)if he intentionally enriches himself illicitly during the period of his office.Explanation 1. - A person shall be presumed to have intentionally enriched himself illicitly if he or any person on his behalf, is in possession of or has, at any time during the period of his office, been in possession of pecuniary resources or property disproportionate to his known sources of income which the public servant cannot satisfactorily account for.Explanation 2. - The expression 'known sources of income' means income received from any lawful sources.]" Section 13(2) of the Prevention of Corruption Act reads:"Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine."

In his order, Justice Dr. Anshuman had concluded:"After going through the report of the stage of the Trial it transpires that there are total 26 accused persons in this case and charge has been framed on 28.02.2025, total 64 witnesses and 226 documents are on the record, which are the basis of the Trial. The Court of CBI has indicated that the Trial is likely to be concluded approximately within one and half years. 7. In the light of the submissions made by the parties, this Court is not inclined to grant bail to the accused at present. Hence, the prayer for bail of the petitioner is hereby rejected. 8. It is directed to the CBI to adduce evidence of the material witnesses at the earliest preferably within six months."  

Reversing Justice Dr. Anshuman's order, the Supreme Court observed:"...without expressing any opinion on the merits of the prosecution case, we are of the view that the appellant is entitled to be released on bail pending trial at this stage." 

Supreme Court grants relief to Niraj Kumar, which was denied by Justice Prabhat Kumar Singh

In Niraj Kumar vs. The State of Bihar (2025), Supreme Court's Division Bench of Sanjay Karol and Prashant Kumar Mishra passed an order dated August 11, 2025 in a case which arose out of a P.S. case 2024 from Ganga bridge Thana, Vaishali. It condoned the delay. The order reads:"In the event of arrest, the petitioner(s) shall be released on bail by the Investigating/arresting officer on such terms and conditions as imposed and found to be just, fair and reasonable." The petitioner has challenged to the judgment and order dated January 29, 2025 passed by the High Court. 

In Niraj Kumar vs. The State of Bihar (2025), Justice Prabhat Kumar Singh of Patna High Court had passed a 2-page long order dated January 29, 2025 rejecting the prayer for pre-arrest bail of the petitioner due to the nature of accusation and gravity of offence. The petitioner had approached the High Court apprehending arrest in a case registered for the offence punishable under sections 103(1), 61 (2) and 3(5) of BNS, 2023. 

As per the prosecution case on 05.08.2024 at 11.00 AM the petitioner along with other F.I.R., named accused persons called brother of the informant who went in the company of accused persons and on the same day at about 2.30 Pm, informant came to know that his brother was lying on ground in dead condition . With the help of villagers, his brother was rushed to nearby clinic of Sadhusharan Choudhary where he was declared dead. Then , informant raised suspicion that the petitioner along with other co-accused persons in collusion with each other killed brother of informant.

The counsel for the petitioner submits that the petitioner was innocent and was falsely been implicated in the case . Only suspicion has been raised against this petitioner. Informant was no eye witness to the alleged occurrence. There was delay of 4 days in lodging the F.I.R., for which there was no plausible explanation for the same . At best, it was a case of last seen with the deceased. The State opposed the prayer for bail and submitted that there was specific allegation against the petitioner that he along with other co-accused persons killed the deceased. It was also submitted that it was the petitioner and other co-accused persons who took away the deceased along with them and thereafter deceased was left in dead condition. 

Patna High Court's Division Bench sets aside judgement by its Single Judge in teacher recruitment case

In the State of Bihar & Ors. vs. Dhirendra Kumar & Ors, Letters Patent Appeal No.1030 of 2024, Patna High Court's Division bench of Acting Chief Justice Ashutosh Kumar and Justice Partha Sarthy set aside the Single Judge’s Judgment by Justice Nani Tagia by his 20-page long judgement dated April 8, 2025.

The Division Bench judgement recorded that the Commission categorically stated that amongst the writ-petitioners, nobody was in the category of candidates who qualify to be appointed on the basis of cut-off marks and cut-off date of birth.

Drawing on Supreme Court's decisions in Shankarsan Dash vs. Union of India: (1991) 3 SCC 47; R.S. Mittal vs. Union of India : 1995 Supp.(2) SCC 230 and Food Corporation of India & Ors. vs. Bhanu Lodh & Ors.: (2005) 3 SCC 618, the Division Bench observed: "There is no legal right to appointment but only of being considered, which is subject to bona fide action on the part of the State. An aspirant has no legal right and the superior Court, in exercise of its judicial power of review, would not ordinarily direct issuance of any writ in the absence of any pleading and proof of mala fide or arbitrariness on the part of the employer."

Drawing on Supreme Court's decision in Kashyap & Ors. vs. South East Central Railway & Ors.:(2019) 12 SCC 798, the Division Bench observed: "It is not incumbent upon the employer to fill all posts but discretion not to appoint, must be exercised judiciously. Courts normally would not interfere with the discretion not to fill up posts but exercise of such discretion should not be arbitrary, capricious or whimsical." It concluded: "For the afore-noted reasons, we are of the opinion that it is not a fit case where the impugned judgment could be sustained." 

Granting relief to 101 petitioners, in his 56-page long judgment dated July 18, 2024, Justice Tagia had directed the State of Bihar through the Chief Secretary Additional chief Secretary, Education Department, Secretary, Education Department, and Director, Secondary Education, Education Department, to identify the number of vacancies that had arisen due to non-appointment of the candidates recommended by the B.P.S.C. as primary teacher for class I-V pursuant to the Advertisement No. 26/2023 for want of requisite qualifications and convey it to the respondents, namely, Bihar Public Service Commission, Chairman, Bihar Public Service Commission and Joint Secretary -cum- Examination Controller, Bihar Public Service Commission On receipt of this information, the respondents were required to publish a supplementary result in order of merit from the selection held pursuant to Advertisement No. 26 of 2023, subject to the candidate(s) having secured the cut off marks and meets the cut off date of birth prescribed by the B.P.S.C.

The petitioners had filed the writ petition praying for issuance of an appropriate writ, order, direction in the nature of mandamus commanding the respondent Bihar Public Service Commission to publish thesupplementary / revised merit list for teachers in primary school for Class I-V in advertisement no. 26 of 2023 dated 30.05.2023, against the vacancies that could not be filled due to ineligibility/disqualification of provisionally successful candidates for non-passing of the CTET and D.El.Ed. Examination.

 

The petition sought a  direction in the nature of mandamus commanding the respondents to publish the result of the petitioners in the fresh supplementary list and call the petitioners for document verification and accordingly, allot respective schools after the publication of the supplementary/revised merit list for teachers inprimary school for Class I-V against advertisement no. 26 of 2023 dated 30.05.2023.

 

It prayed for direction in the nature of mandamus commanding the respondents to consequently, lower down the cut-off date of birth in all the categories in the supplementary/revised merit list for teachers in primary school for Class I-V against advertisement no. 26 of 2023 dated 30.05.2023, and publish the revised merit list accordingly.

 

It also sought a direction in the nature of mandamus commanding the respondents to not merge/include the leftover vacancy of advertisement no. 26/2023 dated 30.05.2023 with the future vacancy of teacher recruitment examination.

 

It prayed for direction in the nature of mandamus commanding the respondents to furnish the details of the vacancies accrued in primary teacher for class I to V due to the candidature rejection of successful candidates in want of CTET & D.El.Ed. certificates and for any other reason. The petition wanted the Court to declare that the respondent Bihar Public Service Commission is legally bound to publish the supplementary/revised merit list for teachers in primary school for Class I - V in advertisement no. 26 of 2023dated 30.05.2023 and thereafter, on the basis of the supplementary/revised merit list for teachers, the appointments are made.

 

The Bihar Public Service Commission (BPSC) had published advertisement No.26/2023, dated 30.05.2022 under the signature of the Joint Secretary cum Examination Controller, BPSC inviting on-line

applications for 1,70,461 posts. These advertised posts included 79,943 posts of primary school teachers for class-1 to 5 for the subjects Urdu, Bangla and general subject. For general subject, the number of posts advertised was 67,066. The petitioners are concerned with 67,066/- posts advertised for primary school teachers for general subject. The advertisement, apart from providing eligibility criteria also provided that in case of the candidates obtaining same marks, age will be given precedence and in case, age will be the same, alphabetical order will be given priority. While advertisement provided 12.07.2023 as the last date of submission of on-line applications, B.P.S.C. published a corrigendum dated 22.06.2023, in which, it has been mentioned that the candidates, who had participated in CTET paper-I examination till 31.08.2023, will be allowed to participate in the examination. The petitioners, who possess all the requisite qualification, applied and had appeared in the written examination held on 24.08.2023 and 25.08.2023. The B.P.S.C. published result on 18.10.2023, wherein 62,653 candidates were declared successful for appointment as primary school teacher. At the time of publishing the result, the cut off marks and cut off date of birth for primary teacher for different categories, on the basis of written examination held on 24.05.2023 and 25.05.2023.

 

The Division Bench judgement has recorded that three kinds of vacancies were identified, viz., (i) the seats remaining vacant because of the Commission recommending lesser number of candidates which was carried forward in the next advertisement; (ii) the seats remaining vacant because of recommendation of same candidate on multiple posts for which a supplementary result of 467 candidates was published and (iii) the seats remaining vacant because of recommendation of ineligible candidates, which also was carried forward in the next advertisement. The vacancy in the third category could be calculated only after the conclusion of examination against next Advertisement No. 27/2023. Because of this, the supplementary result was published against seats which remained vacant due to recommendation of same candidate on multiple posts only.

The judgement reads: "we have taken into account the categorical statement of the Commission that no respondents/writ petitioners met the cut-off threshold of date of birth, though they had obtained marks equal to the selected candidates. We have also considered that the vacancies were carried forward and two consecutive selection process got activated."
 

Patna High Court upholds constitutional validity of Bihar Motor Vehicle Accident Claims Tribunal (Constitution And Service Condition) Rules, 2023 and amendment of 2024

Several writ petitions were filed initially for declaration of Bihar Motor Vehicle Accident Claims Tribunal (Constitution And Service Condition) Rules, 2023 to be bad in law, arbitrary, beyond jurisdiction and ultra vires the provisions contained in section 166 (2) of the Motor Vehicles Act, 1988 (MV Act, 1988) on various grounds but primarily on the issue of lessening the number of Tribunals for the purpose and for not providing for the correct procedure filing of claim petitions, in sync with the provisions contained in Secion166 (2) of MV Act, 1988 of filing the claim petition before the Tribunal. 

In The General Insurance Council vs. The State of Bihar through the Chief Secretary, Government of Bihar & Ors. (2025), the 38-page long judgement dated February 21, 2025 by Patna High Court recorded the petitioners' objections but dismissed them. 

 

The High Court's division bench of Acting Chief Justice Ashutosh Kumar and Justice Partha Sarthy held that "the rules of 2023 along with the amendment of 2024 are completely in consonance with the provisions contained in Section 165, 166 and 176 of the M.V. Act, 1988" as also the dictum of the Supreme Court in Gohar Mohammad case and Anita Kushwaha case. The challenge in these writ petitions failed.  All the writ petitions were dismissed. The judgement was authored by Justice Kumar. It was delivered on February 21, 2025. Notably, the High Court has directed that "there shall be no prohibition for the Advocates appearing for the parties before the Tribunals."

The petitioners' counsel had commented upon adversely with respect to the constitution and composition of the Search Committee for appointing the Chairman and the Members of the Tribunal as in the amendment/notification, the Search Committee comprised mainly administrative Officers, thus falling foul of the judgment in Madras Bar Association vs. Union of India; (2021) 7 SCC 369.

In the year 2021, a State Level Tribunal was constituted in terms of the powers granted to the State Government under Section 165 and 176 of the MV Act, 1988. Against the notification constituting State Level Tribunal vide notification number 683 and 684 dated 11/08/2021, several writ petitions were filed by affected persons including Insurance Companies, which was stayed by a Bench of the High Court by order dated December 21, 2022 passed in the batch of writ petitions, the lead case being CWJC No. 2183 of 2022. The stay was granted in view of the amendment brought about in Section 166 (3) of the MV Act, 1988 with effect from Apil 1, 2022 providing for limitation period for 6 months for filing applications for compensation from the date of occurrence of the accident and the notification by the State Government in not making such corresponding provisions. 

Thereafter, the Department of Transport came out with a fresh draft notification on April 19, 2023, on which objections were invited. By the said notification, District Level Tribunals were formed. The notification no. 683 and 684 were withdrawn. 

The objections raised by the concerned parties were rejected by the Secretary, Transport Department. Thereafter vide notification dated May 29, 2023, the rules of 2023 were notified which was gazetted on May 30, 2023. 

By the Rules, the Tribunals were constituted at the district level and the composition of the Search Committee for the Members and the Chairman of the Tribunal remained the same, namely, Secretary/Principal Secretary/ Additional Chief Secretary, Transport Department; Secretary, Law Department; an Officer nominated by the General Administrative Department and; a Deputy Secretary or Officer on Special Duty in Transport Department. Though the Rules of 2023 were gazetted but it was not found available on the official website of the Transport Department, Government of Bihar. 

After about four months, a fresh draft notification dated September 20, 2023 was uploaded on the website of the Transport Department, inviting objections. In this draft notification, the Tribunals were constituted at the divisional level with practically no change in the composition of the Search/Screening Committee. 

The objections were with respect to clause 7 that no representation of the Judiciary was provided in this selection and appointment of the Chairperson and clause 8 whereby the Transport Department had been given the authority to remove the Chairperson of the Tribunal on the grounds of misbehaviour, incompetence, laxity in discharge of duties or of passing order in contravention of rules enforced by the Government etc.

The objection was that such power of removal of Chairperson should not have been left with the bureaucracy. There were objections also with respect to clauses – 10 to 14 as also for lessening the number of Tribunals by making such Tribunals operate at divisional level. 

The rule was ultimately notified and gazetted on October 26, 2023. This led to filing of the present writ petitions challenging the vires of the rules on ground of incompetence of the State Legislature/State Government to make rules in contravention of the provisions contained in the Central/Parent Act of 1988 and for it to be arbitrary and not in keeping with the principles decided in Gohar Ahmad vs. Uttar Pradesh State Road Transport Corporation and Others; (2023) 4 SCC 381 and Madras Bar Association case.

During the hearing of these writ petitions, the Advocate General had intimated the court that the Government would give a re-look at the challenged rules, specifically with respect to the constitution of Selection Committee and the removal of the incumbents appointed to the Tribunal. All the writ petitions, therefore, were adjourned awaiting the revisit of those rules by the Government and perhaps proposing amendment in the rules to bring it in consonance with the judgment in Madras Bar Association case.

The Advocate General denied the charge that the newly constituted Tribunals were not permitting Advocates to appear.  

Several other issues also were raised, one of which was that the Government had introduced the rules with effect from April 1, 2019 against the advice of the Advocate General, which issue was also required to be considered.

In the meantime, the Government on a re-look at the challenged rules, came out with notification contained in letter no. 9965 dated August 27, 2024, making changes in rule 7 of the earlier 2023 rules with regard to appointment of Members and Chairman of the Tribunal and the constitution of the Selection Committee for the said appointments. The Chief Justice of the Patna High Court or any Judge nominated by him was to be made Chairman of that Selection Committee and the other Members of the selection committee would be the Registrar General of the Patna High Court, Secretary/ Principal Secretary/Additional Chief Secretary or any Representative Officer of the Transport Department; Secretary-cum-Legal Adviser, Law Department and Representative Officer of the General Administration Department.

Rule 8 also was amended which dealt with resignation and removal of Chairman of the claims Tribunal.

It was brought to the notice of the Court that initially only seven Tribunals were conceived of but the number was increased to ten divisional level Tribunals covering the State of Bihar. Thus necessary amendments were made in the prayer of the writ petitioners and even with such amendment, the challenge mounted earlier continued. 

The challenge inter alia was that the State Government had the power to issue notification only with respect to territorial jurisdiction under Sections 165 (1) (4) of the M.V. Act, 1988 and to appoint Members of the Tribunal under Section 165(2) thereof. It was urged that under Section 176 of the M.V. Act, 1988, the scope of issuance of such notification is limited and the State Government was incompetent to make rules on the condition of service of the Members of the Tribunals and selection of Presiding Officers. The use of the words in Section 176 of the MV Act, 1988 makes it very clear that rules could be made for the purpose of carrying into effect the provisions of Sections 165 to 174 of the M.V. Act of 1988 with respect to, (a) the form of application for claims for compensation and the particulars, it may contain and the fees, if any, to be paid in respect of search applications; (b) the procedure to be followed by the claims Tribunal in holding an inquiry under this chapter; (c) the powers vested in a Civil Court which may be exercised by a claims Tribunal; (d) the form and the manner in which and the fee ( if any) on payment of which, an appeal may be preferred against an award of a Claims Tribunal and; (e) any other matter which is to be or may be prescribed.

Thus the rule making power of the State could not have been extended to what has been done in the present set of rules.

It was argued that in Kerala State Electricity Board vs. Thomas Joseph; 2022 SCC OnLine SC 1737, it has been held that if a rule goes beyond the rule making powers conferred by the statue, the same would be required to be declared invalid. A rule could not supplant any provision for which power has not been conferred and the basic test to determine and consider is the source power which is relatable to the rule. Similarly, a rule must be in accord with the parent statute and cannot travel beyond it. The doctrine of ultra vires envisages that a rule making body must function within the purview of rules making authority conferred on it by the parent act. There is no inherent power of its own,which could be invoked to make rules. It was also argued that the Supreme Court in Global Energy Limited vs.Central Electricity Commission; (2009)15 SCC 570, has clarified that the rule making power for carrying out the purpose of the act is a general delegation which may not be used for laying down any other guidelines. By reason of such a provision alone, the regulation making power cannot be exercised so as to bring into existence or affect substantive rights or obligations or disabilities which are not contemplated in terms of the provisions of the act.

The Second challenge was regarding the fact that notwithstanding the notification of 2024, bringing about changes in rule 7 and 8 of the 2023 rules, the Screening Committee was still not free from executive control. The Secretary of the Tribunal ought not to be an administrative Officer of the Transport Department as the Transport Department is more often than not, a litigant before such Tribunal. The independence of the Tribunal will only be secured when even the administrative function would be in the hands of judicial body, otherwise there would be complete absence of any link with the parent department.

In support of the contention, it was argued that in Madras Bar Association case. it was clearly sounded that independent judicial Tribunals for determination of the rights of citizens and for the adjudication of the disputes and complaints of the citizens, is a necessary concomitant of the rule of law.

The argument on this point thus was concluded that with the Secretary of the Tribunal hailing from the sponsoring department, it cannot be said that there would be no control of the bureaucracy over the Tribunal.

A non-Judicial Member in any capacity ought not to be appointed in Motor Accidents Claim Tribunal. 

The third argument advanced was that divisional level Tribunals provided under rules of 2023, makes access to justice illusory. Motor Vehicles Act is a beneficial legislation, the fruits of which ought not to have been kept up and hanging for poor and indigent. No reasonable explanation appears to be available with the Government for shifting the jurisdiction from district level to divisional level. Reference in this context was made to the judgment in Anita Kushwaha vs. Pushap Sudan; (2016) 8 SCC 509, which declared that access to justice is indeed a facet of right to life, guaranteed under Article 21 of the Constitution as also a facet of right guaranteed under Article 14 of the Constitution which guarantees equality before law and equal protection of laws.

The other argument raised was whether the rules made, could be enforced retrospectively. The 2023 rules were amended on August 27, 2024 declaring that it shall apply on all pending cases filed on or after April 1, 2019.

In support of the argument, it was suggested that chapter- 11 of the MV Act, 1988 was amended In the year 2019, but it came into force only from April 1, 2022. Section 212 (2) of the MV Act, 1988 further provides that any modification or annulment in the rule so made, shall be without prejudice to the validity of anything previously done under the rule, scheme or notification.

Lastly, it was argued that the form for filing the complaint provided by the Transport Department on the portal falls foul of Section 166 (1) and (2) of the MV Act, 1988. It was also pointed out that no provision has been made in the form issued by the Transport Department on the web portal about accidents occurring outside the State of Bihar but the claimants being residents of Bihar. There is no option for them to file their claims in the State of Bihar. Thus, larger public interest has been adversely affected with the promulgation of the rules 2023 and the amendment brought out in the year 2024. It was thus argued that the rules are practically uninformed by reason and therefore are arbitrary.

Responding to the contentions, the Advocate General argued that a statutory rule cannot be declared ultra-vires on the grounds of inconvenience and that too without any basis for concluding the same but only on presumptions. A statutory rule could be declared ultra vires only if it is shown that it is beyond the Legislative competence or is in breach of any enactment or violates any provision of the Constitution. With the establishment of ten Tribunals at divisional level, with utmost clarity that the numbers shall not remain perpetually the same, the Government of the day has only shown its consciousness and alacrity to the situation. On periodical review, as and when necessity for creation of more Tribunals would be felt in the interest of the accident victims, the Government would consider the same and increase the number of Tribunals. In fact, initially, only seven Tribunals were conceived of at divisional level but the number was immediately increased to ten, repelling any doubt that when need would arise, more number of Tribunals will not be created. The ten newly dedicated claims Tribunals, according to the Government, have been constituted for the purpose of providing speedy justice to the people. The jurisdictional area of the Tribunal has also been clearly defined along with the divisional headquarter where the Tribunal would be located. Such a decision was not made without any assessment of pending cases. Even the future accretion in the number of cases have been taken into account for making dedicated divisional level Tribunals. The assessment was based on the inputs that number of pending cases did not justify more than ten Tribunals, especially when such Tribunals were exclusively dedicated for deciding claim cases. Hitherto, one court of the District Judge/Additional District Judge was operating as a Tribunal in that district. The finance involved is not the consideration of the Government. The number has been fixed at ten presently, which could be changed if situation so demands. The highest number of pending cases is in Patna division is only 73; in Saran division, there are only 10 pending cases. Similarly the numbers of such cases is less in Bhagalpur, Munger, Muzaffarpur, Darbhanga etc. The earlier Tribunals were dealing with such claim cases along with the other areas of litigation.

The State contended that the rules have been framed after considering the due process of law.

The Court examined the provisions contained in sections 165, 166 and 176 of the MV, Act 1988.

The Court observed:"the provisions of the Parent Act, the State Government’s power to make rules constituting one or more Motor Accidents Claims Tribunals is clearly established. Section 166 provides for the contents of the application for compensation arising out of an accident. Section 166 (2) which was introduced w.e.f. 14.11.1994 gives the option to the claimant to either file his claim before the Claims Tribunal having jurisdiction over the area in which the accident occurred, or to the Claims Tribunal within the local limits of whose jurisdiction the claimants reside or carries on business or within the local limits of whose jurisdiction the defendant resides and shall be in such form and contain such particulars as may be prescribed. From the perusal of the rules of 2023, the presumption of the rules not being in sync with the provisions contained in Section 166(2) of the MV Act, 1988 appears to be unfounded and uncalled for."

It records: "no victim or their legal representatives would have to move physically for filing their claim applications. For filing claim applications, an online portal has been developed by the State Government for convenience of accident victims, considering their physical as well as mental conditions. Any claimant could file their claim application by using their own personal credentials. It could be filed from any place using any cyber cafe. The rules of 2023 do not infringe, in any way, the freedom of selection of claims Tribunal of its choice in accordance with the section 166 (2) of the Parent Act. They could also appear before such Tribunal virtually."

It relied on Supreme Court's decision in Gohar Mohammad, wherein it  had directed that the State authorities would take appropriate steps to develop a joint web portal/platform to co-ordinate and facilitate the stakeholders for the purposes of carrying out the provisions of Motor Vehicles Amendment Act and the Rules in coordination with any technical agency and be notified to the public at large. In the light of what was directed in Gohar Mohammad by the Supreme Court, an online portal has been developed by the State Government. A facility of digital mode of hearing of cases has also been provided. 

In the light of the judgment in Gohar Mohammad case, a new investigative process has been notified by the Central Government, which has been endorsed by the Supreme Court, which mandates that the victims have to file their details in prescribed format to police and all reports by police after verification and investigation is to be submitted through a portal developed by MORTH. It only facilitates the filing of claim petition which has not to be filed like any suit before the Civil Court. 

There is no bar on the lawyers appearing in these Tribunals either physically or virtually. 

A conjoint reading of Section 165, 166 and 176 of the MV Act, 1988 would reflect that the rules of 2023 (amended in 2024) would clearly pass the muster. 

The Court observed that with the change in the composition of the Screening Committee, making it in line with the judgment in Madras Bar Association case, removes that defect also in the rules viz. the committee would be under the influence of the parent Department of Transport. 

The contentions raised on behalf of the writ petitioners with respect to the power of the Government to make such rules and the extent of it stands answered. The Government has the power to make rules and also decide about number of Tribunals in the State of Bihar. 

In Sanjeev Coke Manufacturing Company vs Bharat Cooking Coal Ltd; ( 1983) 1 SCC 147, a five Judge Bench of the Supreme Court had held that “scales of justice are just not designed to weigh competing social and economic factors. In such matters, legislative wisdom must prevail and judicial review must abstain”. 

The judicial review of Government Policies/rules encapsulates determining whether they infringe upon the fundamental rights of citizens, contravene constitutional provisions, violate statutory regulations and display manifest arbitrariness, capriciousness or malafides. The High Court referred to Maharashtra State Board of Secondary and Higher Secondary Education vs. Paritosh Bhupesh Kumar Sheth: 1984 (4) SCC 27.

The focus of judicial scrutiny is limited to the legality of the policy, excluding any evaluation of its wisdom and soundness. The Court cannot compel the Government to formulate a policy, evaluate alternatives or assess the effectiveness of existing policies. This constraints stems from the principle of separation of powers, where the Courts lack the democratic mandate and institutional expertise to delve into such matters. While the Court cannot look into these aspects, the Court can definitely check the Constitutional validity of a policy or a rule or a statute. The Court referred to the decision IN RE: Section 6A of Citizenship Act, 1955, 2024 SCC OnLine SC 2880)

Fixing a cut-off date retrospectively is not to be read in isolation but with the provision contained in the rules of 2023 and the amendment of 2024 regarding repeals and savings. The power to make law by an authority also entails in it a power to repeal law or to make it prospective or retrospective. The watershed date is with a reason, namely, that all cases after a particular date would stand transferred to the newly constituted Tribunals with the territorial jurisdiction defined so that the newer cases are decided speedily. 

The Court opined that with respect to creating ten Tribunals, which reduces the number from many to limited resulting in the distortion of the principle of access to justice, it needs be noticed that in Anita Kushwaha case, the Supreme Court clearly held that it forms a necessary component of Article 21 of the Constitution of India. The Supreme Court formulated four facets constituting the essence of access of justice, namely, (1) the State must provide an effective adjudicatory mechanism; (2) the mechanism so provided must be reasonably accessible in terms of distance; (3) the process of adjudication must be speedy; and (4) the litigants access to adjudicatory process must be affordable. 

In his judgement, Justice Ashutosh Kumar concluded: "Testing the validity of the rules of 2023 and the amendment of 2024 on this score, we have no difficulty in holding that the Tribunals so constituted provide an effective adjudicatory mechanism, which is in consonance with the provisions of Section 166 (2) of the Parent Act. Out of 38 districts, 10 Tribunals, which number could increase in future as well, clearly covers the State of Bihar with contiguous districts falling within the territorial jurisdiction of each of the Divisional Tribunal. This does not make it any less accessible than what a litigant would expect. With the new portal having been developed and the investigative process endorsed by the Supreme Court having been introduced, the accessibility to justice has become speedier, cheaper and transparent. The process also makes it affordable."

Dr. Gopal Krishna

 

The author is a  law and philosophy researcher, advocate, and a bilingual writer on the subject of science, river basin, environmental and occupational health, ecocide, disarmament, consciousness of big data, citizenship, agriculture and justice. He has formally studied law, philosophy, mass communication and public health. He has authored reports, papers and book chapters on Interlinking of Rivers (diversion of rivers), the world’s largest infrastructure project and Unique Identification (UID)/Aadhaar Number and National Population Register (NPR), the world’s largest information infrastructure project. Holding a Ph.D from Jawaharlal Nehru University (JNU), New Delhi on the subject of corporate crimes with specific reference to industrial disaster of Bhopal, Gopal’s Post-Doctoral work was on relationship between dataveillance, inequality and totalitarianism. His work on inter-state migrants in the hazardous industries like shipbreaking industry and asbestos industry captures the movement of waste from richer areas to poorer areas and the precarious condition of migrants. He is the editor of ToxicsWatch and has delivered expert testimonies before the Indian, European and German Parliamentary Committees in the matter of national and international legislations- Civil Liability for Nuclear Damage Bill, Consumer Protection Act. Biological Diversity Amendment Bill, Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Bill, National Identification Authority of India Bill, hazardous waste trade, and proposed UN’s legally binding instrument to regulate, transnational corporations and other business enterprises. His work makes a case for the implementation of the UN Treaty on the Prohibition of Nuclear Weapons. 

Calcutta High Court detects error in the verdict of judge, Malda Special Court under NDPS Act, grants default bail upon expiry of 180 days

In re: An application for bail under Section 439 of the Code of Criminal Procedure, 1973 / Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 And in the matter of Idul Mia, the petitioner, the Calcutta High Court's division bench of Justices Arijit Banerjee and Apurba Sinha Ray granted default bail on the grounds that the chargesheet submitted against him was submitted without a forensic report, within the statutory limit of 180 days. The Court gave this decision while dealing with an application for bail in a case of offences under the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985. The judgment was delivered on October 8, 2024. 

The petitioner was charged with offences punishable under Sections 21C/25/27A/29 of the NDPS Act, 1985. He was arrested on January 31, 2024. He submitted that he became entitled to statutory bail on the 181st day since the charge sheet that was submitted on the 177th day without the FSL report, is not a valid charge sheet. The FSL report was not submitted, whether by way of a supplementary charge-sheet or otherwise within 180 days. He had applied for default bail on the 183rd day. The prayer for bail was rejected by the learned Trial Court. Consequently, the petitioner approached the High Court with an application for bail.

The petitioner's advocate relied on the following decisions: -
(i) Judgment and order dated 25/08/2023 passed in Rakesh Sha v. State of West Bengal, CRM (NDPS) 552 of 2023, reported at 2023 SCC OnLine Cal 2463,
(ii) Judgment and order dated 17/01/2023 passed by a Full Bench of Calcutta Court in Subhas Yadav v. State of West Bengal, CRM 146 of 2021 reported at 2023 SCC OnLine Cal 313.

The Advocate for the petitioner pointed out that the issue as to whether or not a charge sheet without the FSL report in a NDPS case can be termed as an ‘incomplete Report’ under Section 173 Cr. P.C. is pending before the Supreme Court in the case of Mohd. Arbaz & Ors. v. State of NCT of Delhi, Petition(s) for Special Leave to Appeal (Crl.) No(s).8164-8166/2021.

Notably, Mohd. Arbaz's case  was filed in the Supreme Court on October 4, 2021 against Delhi High Court's decision of Justice Vibhu Bakhru dated November 3, 2020. It was registered on October 25, 2021, verified on October 26, 2021 and admitted on May 1, 2024. This case has been tagged with other cases from Delhi, Kerala, Haryana, West Bengal, Punjab and Gujarat. It is pending before the 3-Judge bench of Justices Surya Kant, Sudhanshu Dhulia and Ujjal Bhuyan. It was last listed on July 18, 2024.  In its order of July 18, the Court observed: "In this batch of cases, the primary issue that arises for consideration is as to whether a chargesheet without the FSL/Examiner’s Report in a NDPS case can be termed as an `incomplete Report’ under Section 173 Cr.P.C.? During the course of hearing, it so transpired that various other questions of paramount public importance, with regard to the fairness and efficacy of the trials under the NDPS Act, also need to be resolved. Some of these issues have also been formulated by one of the learned counsel for the petitioners. One such issue pertains to the establishment of adequate FSL/Examiner Laboratories by the State Governments along with appointment of requisite technical staff to operate such laboratories. It seems to us that issues such as the current status of the FSL/Examiner’s Laboratories, creation of a robust mechanism for submission of the FSL/Examiner’s Reports within the stipulated period and the issue pertaining to follow up action taken by the States in compliance of the directions issued by this Court in Union of India vs. Mohan Lal & Anr., (2016) 3 SCC 379, etc. would require indepth consideration by us. Consequently, we propose to hear all the States and the Union Territories before any effective directions are issued. We, therefore, direct the Registry to issue notices to the Union of India, all the States and the Union Territories, returnable on 29.08.2024....The orders granting interim bail to the petitioners shall continue to operate until further orders."

The High Court referred to the provisions of Section 36-A (4) of the NDPS Act. It reads: “36-A. Offences triable by Special Courts-(4) In respect of persons accused of an offence punishable under Section 19 or Section 24 or Section 27-A or  for offences involving commercial quantity the references in sub-section (2) of Section 167 of the Code of Criminal Procedure, 1973(2 of 1974) thereof to “ninety days”, where they occur, shall be construed as reference to “one hundred and eighty days”. Provided that, if it is not possible to complete the investigation within the said period of one hundred and eighty days, the Special Court may extend the said period up to one year on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of accused beyond the said period of one hundred and eighty days.”

It also referred to the relevant portion of Sections 167 (1) and (2) of the Code of Criminal Procedure, 1973. It reads: “167. Procedure when investigation cannot be completed in twenty-four hours. (1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 57, and there are grounds for believing that the accusation or information is well-founded, the officer-in-charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate. (2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has no jurisdiction to try the case, from time to time authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction : Provided that –(a) [the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding, - [Substituted by Act 45 of 1978, Section 13, for paragraph (a) (w.e.f. 18-12-1978).] (i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;
(ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;]” 

The Court observed: "We see that Section 167 prescribes the maximum period for which an accused can be remanded to judicial custody without charge sheet being filed. Section 36A(4) of the NDPS Act prescribes that reference to “90 days” in Section 167(2) Cr. P.C. shall be construed as reference to “one hundred and eighty days” for the purpose of NDPS cases. However, if investigation cannot be completed within the said period of 180 days, the Special Court may grant further time up to one year on the report of the public prosecutor indicating the progress of the investigation and the reasons for detaining the accused beyond the period of 180 days. Therefore, in an NDPS case, if charge sheet is filed within 180 days from the date of arrest of the accused, no right of statutory bail accrues in favour of the accused. The question is, what happens if the charge sheet is not accompanied by the Forensic Report? Would such a charge sheet satisfy the requirements of Section 36A (4) of the NDPS Act? On the aforesaid issue, there is divergence of opinion. A Division Bench of this Court in the case of Rakesh Sha (Supra) held that a charge sheet submitted within 180 days without the Chemical Examination Report with an observation that a supplementary charge sheet will be filed in future with the FSL report is beyond the contemplation of the proviso to Section 36A(4) of the NDPS Act. The Bench observed:- “filing of a charge-sheet without the Examination Report in relation to an offence under the NDPS Act is an exercise in futility and raises the presumption of the I.O filing a cipher only for the sake of closing the first window of the 180 days under the proviso to 36A(4) of the Act”.

The Division Bench had also observed: "The petitioner, before us, on the other hand, has been charged for commission of an offence under the NDPS Act which requires the Trial Court to take cognizance of the offence committed under the Act. This means that the CFSL/Laboratory Report becomes an essential and integral part of the investigation for establishing the charges under the NDPS Act. The Chemical Examination Report therefore becomes the most vital piece of evidence which is required to be made part of the charge-sheet.”

Notably, Advocate for the State had relied on a decision of a Single Judge of the Calcutta High Court in the case of Jagdish Singh v. The State of West Bengal and Anr., CRR no. 41 of 2024 dated July 18, 2024, in support of his submission that if the charge sheet contains details required under Section 173 Cr. P.C. and is filed within the period prescribed, it cannot be termed as incomplete in the absence of FSL report.

The High Court has noted that the case of Jagdish Singh was a criminal revisional application filed by the accused person for quashing of the charge sheet which was filed without the FSL report. A Single Judge, noting that the issue as to whether or not in an NDPS case, a charge sheet filed unaccompanied by the FSL report is a valid charge sheet, is pending before the Supreme Court, disposed of the revisional application without passing any order. However, the Judge discussed various decisions of High Courts. It appears that the view of the Jammu and Kashmir High Court is that merely because the Expert’s Report does not accompany the final report, the charge sheet cannot be said to be defective or incomplete. If the charge sheet contains details required under Section 173 Cr. P.C. and is filed within the period prescribed, it cannot be termed as incomplete, in the absence of FSL report. In this connection one may refer to the decision of the Jammu and Kashmir and Ladakh High Court in Abdul Majid Bhat v. UT of J&K MANU/JK/0285/2022. In that case reliance was placed on the decision of the Karnataka High Court passed in the case of Mr. Sayyad Mohammad @Nasim v. State of Karnataka & Anr., Writ Petition No. 5934/2021 decided on March 29, 2022. The Karnataka High Court observed that the petitioner did not get a right to default bail merely because the Charge Sheet / Final Report filed by the Police was without the FSL report. The view of the Bombay High Court also appears to be the same as the Jammu and Kashmir High Court. A Division Bench of that High Court in Manas Krishna T.K. v. State the Police Inspector/Officer-In-Charge & Anr., reported at 2021 SCC OnLine Bom 2955 held that in an NDPS case a police report containing the details prescribed under Section 173(2) Cr. P.C. is a complete police report or a charge sheet or a challan even if it is unaccompanied by a CA/FSL report. If such police report is filed within the period stipulated in Section 167(2) Cr. P.C., read with Section 36-A(4) of the NDPS Act, the accused cannot insist on default bail.  

The High Court observed: "We, therefore, see that while Jammu and Kashmir High Court as well as Bombay High Court have taken the view that the right of statutory bail does not accrue in favour of an accused if a charge sheet containing the particulars mentioned in Section 167(2) Cr. P.C. is filed within the stipulated time period, even if the charge sheet is not accompanied by the FSL report."

The Court felt that "Judicial discipline warrants that for the time being, we follow the view taken by a Coordinate Bench of our Court. The issue is to be finally decided by the Hon’ble Supreme Court before which the matter is pending. In view of the undisputed fact that in the present case the charge sheet, although filed within the period of 180 days, was not accompanied by the FSL report, and that the FSL report was filed as part of a supplementary charge-sheet filed beyond 180 days from the date of arrest of the petitioner and after he applied for statutory bail, we have to hold that upon expiry of 180 days, the petitioner became entitled to statutory bail/default bail, and the learned Trial Court erred in not extending that privilege to the petitioner."

The judgement reads: "we direct that the petitioner, namely, Idul Mia shall be released on bail upon furnishing a bond of Rs.25,000/- (Rupees Twenty Five Thousand) with two sureties of like amount each, one of whom must be local, to the satisfaction of the learned Judge, Special Court under NDPS Act, 3rd Court, Malda, subject to condition that the petitioner shall appear before the learned Trial Court on each and every date of substantive hearing subject to the provisions of Section 317 of the Code of Criminal Procedure, 1973 / Section 355 of Bharatiya Nagarik Suraksha Sanhita, 2023, and shall not intimidate the witnesses and/or tamper with evidence in any manner whatsoever and on further condition that the petitioner, while on bail, shall not to leave the jurisdiction of Kaliachak P.S., Malda and shall also deposit his passport, if there be any, with the Trial Court before his release from the Correctional Home. The petitioner shall also report to the Inspector-in-Charge of Kaliachak Police Station, Malda, once in a week until further orders. In the event the petitioner fails to adhere to any of the conditions stipulated above without any justifiable cause, the learned Trial Court shall be at liberty to cancel his bail in accordance with law without further reference to this Court." The judgement was authored by Justices Arijit Banerjee.

 

High Court, District Judge, Sessions Judge, District Magistrate, Revenue-officers empowered to publish lists of touts: Advocates (Amendment) Act, 2023

The Advocates (Amendment) Act, 2023 has inserted a new Section 45A in the Advocates Act, 1961 to empower every High Court, District Judge, Sessions Judge, District Magistrate, and every Revenue-officer, not being below the rank of a Collector of a district to frame and publish lists of persons who habitually to act as touts. The list may be amended from time to time. No person's name shall be included in any such list until he shall have had an opportunity of showing cause against such inclusion. A copy of every such list shall be kept hung up in every Court to which the same relates. The Court or Judge may, by general or special ordet, exclude from the precincts of the Court any person whose name is included in any such list. Any person who acts as a tout whilst his name is included in any such list shall be punishable with imprisonment which may extend to three months, or with fine which may extend to five hundred rupees, or with both. 

Section 45 A (7) (d) (i) and (ii) defines "tout". It means a person—who procures, in consideration of any remuneration moving from any legal practitioner, the employment of the legal practitioner in any legal business; or who proposes to any legal practitioner or to any person interested in any legal business to procure. in consideration of any remuneration moving from either of them, the employment of the legal practitioner in such business or who for the purposes of such procurement frequents the precincts of Civil or Criminal Courts or of revenue-offices, or railway stations. landing stages. lodging places or other places of public resort. 

The Advocates (Amendment) Act, 2023 has repealed certain provisions of ‘The Legal Practitioners Act, 1879 by incorporating provisions of Section 36 of the Legal Practitioners Act of 1879 in the Advocates Act.

The repealing of the Legal Practitioners Act, 1879 from the statutes book, will be a contribution to achieve the goal of repealing the obsolete laws specifically that pertain to British era. It will also be a step towards ease of doing business and ease of living for citizens. It would also help in regulating the legal profession by a single Act i.e., the Advocates Act, 1961.  Notably, the Legal Practitioners Act, 1879 has been repealed and the Advocates (Amendment) Act, 2023 has been passed by the Parliament and the assent of the Hon’ble President of India was received on December 8, 2023.

The Union Law Ministry has notified the amendment. The notification states that the Union government has announced September 30, 2024 as the date on which the provisions of the Advocates (Amendment) Act, 2023 will come into force. 

Patna High Court failed to inquire into 42 years of delay in determining basis of compensation for land acquisition by Bihar Govt: Supreme Court

On May 13, 2024, the Supreme Court expressed its disappointment over the approach of the Patna High Court in the case Dharnidhar Mishra Vs. of State Bihar. The Court asked why the Appellant was not compensated for forty-two years after acquiring his land. Supreme Court's division bench of  Justices J. B. Pardiwala and Manoj Mishra has sent the case back to the High Court for reconsideration. It was filed on May 4, 2023 and registered on May 13, 2024. Meanwhile, Dharnidhar Mishra is dead.

Supreme Court concluded: "The impugned order passed by the High Court is set aside and the matter is remitted to the High Court for fresh consideration. Letters Patent Appeal No 997 of 2019 is restored to its original file. The High Court shall hear both the sides and pass an appropriate order in accordance with what has been observed by this Court in this order. We request the High Court to decide the matter within a period of two months from today." 

The Court allowed the application for substitution to bring on record the legal heirs of the first petitioner. Originally, there were two petitioners in the case, namely,  Dharnidhar Mishra and Sushil Kumar Mishra from Hanuman Nagar, Bharbari, Rosera, Samastipur. The legal hers are:Panchwati Devi, Saroj Devi,  Indira Kumari, Ranjana Devi and  Kanchan Devi. 

The Court observed: "There are many issues arising in this litigation and the High Court should have taken little pains to ask the State why it made the appellant run from pillar to post. It is sad to note that the appellant passed away fighting for his right to receive compensation. Now the legal heirs of the appellant are pursuing this litigation."

 

This appeal arose from a order passed by Patna High Court dated February 7, 2023 by which the Division Bench of the High Court disposed of the Letters Patent Appeal by asking the appellant herein to file an appropriate application before the concerned authority for disbursement of the value of the land assessed at Rs 4,68,099.

In the year 1976, a notification under Section 4 of the Land Acquisition Act, 1894 was issued for the purpose of construction of State Highway as notified by the State of Bihar. The land owned by the appellant herein was included in Section 4 notification referred to above. Sometime in 1977, the land of the appellant was acquired. However, it is the case of the appellant that not a single penny was paid to him towards compensation.

The appellant preferred an appropriate application addressed to the State Government immediately after his land came to be acquired and possession was taken over in the year 1977 for payment of compensation. It is the case of the appellant that State did not even pass any award of compensation and kept the matter in limbo. Years passed by and the appellant kept on requesting the authorities to pass an appropriate award and pay the amount towards compensation.

As the respondents did not pay heed to the say of the appellant, he was left with no other option but to file a writ petition in the High Court of Patna. The writ petition was heard by a Single Judge and by order dated July 19, 2019 rejected the same only on the count that the petition had been filed after a period of forty-two years of the acquisition. While dismissing the writ petition, the learned Single Judge also observed that the appellant had failed to submit any paper or notification in connection with acquisition of his land for the purpose of payment of compensation.

Being dissatisfied with the order passed by the learned Single Judge rejecting his writ petition, the appellant went in appeal. The appeal came to be disposed of by a Division Bench of the High Court.

Dharnidhar Jha, the senior counsel appearing for the appellant submitted that the State conceded to the fact that the land of the appellant had been acquired and was put to use for the purpose the same was acquired. He would submit that if the State thought fit to acquire the land of his client, then it was obligatory on the part of the State to pass an appropriate award determining the amount towards compensation. He would submit that it is not the case that the appellant herein was lethargic in asserting his rights, but rather kept on requesting the authorities concerned to determine the amount towards compensation and pay the same. 

 

On the other hand, the counsel appearing for the State of Bihar submitted that no error, not to speak of any error of law could be said to have been committed by the High Court in passing the impugned order. He submitted that it is not in dispute that the land of the appellant was acquired for a public purpose, but at the same time, it was the duty of the appellant to pursue the matter further for the purpose of getting appropriate compensation determined in accordance with law.

Having heard the counsels appearing for the parties and having gone through the materials on record, the Supreme Court considered the question as to whether the High Court committed any error in passing the impugned order.

The Court noted that Justice Chakradhari Sharan Singh, the Single Judge of the High Court thought fit to reject the writ petition only on the ground of delay and in appeal, the appellate court disposed of the appeal asking the appellant herein to file an application before the concerned authority for disbursement of the amount of compensation. 

 

Supreme Court's order takes notice of two things: First, the High Court in its impugned order has stated that the appellant herein has been informed about the value of the land assessed at Rs 4,68,099. It reads: "We fail to understand on what basis this figure has been arrived at; at what point of time this amount came to be assessed; and the basis for the assessment of such amount. Secondly, the order of the High Court could be said to be a non-speaking order." It records that the counsel appearing for the State of Bihar submitted that "it was an order obtained with the consent of the parties, yet there is nothing to indicate that any consent was given by the appellant herein to pass such an order."

 

Supreme Court's order observes: "The first thing that the High Court should have enquired with the State is as to why in the year 1977 itself, that is the year in which the land came to be acquired, the award for compensation was not passed. The High Court should have enquired why it took forty-two years for the State to determine the figure of Rs 4,68,099. The High Court should also have asked the State the basis of the determination of the amount towards compensation. It is a well settled position of law that after the award towards compensation is passed, if the owner of the land is not satisfied with the quantum, he can even file an appeal for the enhancement of the same. The High Court proceeded on the footing that the amount of Rs 4,68,099 has been assessed and it is now for the appellant to file an appropriate application and get the amount disbursed in his favour. We are not convinced but rather disappointed with the approach of the High Court while disposing of the appeal."

 

The Court underlined that "In 1976, when the land of the appellant came to be acquired the right to property was a fundamental right guaranteed by Article 31 in Part III of the Constitution. Article 31 guaranteed the right to private property, which could not be deprived without due process of law and upon just and fair compensation. The right to property ceased to be a fundamental right by the Constitution (Forty-Fourth Amendment) Act, 1978, however, it continued to be a human right in a welfare State, and a constitutional right under Article 300-A of the Constitution. Article 300-A provides that no person shall be deprived of his property save by authority of law. The State cannot dispossess a citizen ofhis property except in accordance with the procedure established by law. The obligation to pay compensation, though not expressly included in Article 300- A, can be inferred in that Article. [See: K.T. Plantation (P) Ltd. v. State of Karnataka, (2011) 9 SCC 1]

 

The Court drew on its decision in Hindustan Petroleum Corpn. Ltd. v. Darius Shapur Chenai reported in (2005) 7 SCC 627, this Court held that: “6. … Having regard to the provisions contained in Article 300-A of the Constitution, the State in exercise of its power of“eminent domain” may interfere with the right of property of a person by acquiring the same but the same must be for a public purpose and reasonable compensation therefor must be paid.” (Emphasis supplied) 

 

The Court drew on its decision in N. Padmamma v. S. Ramakrishna Reddy reported in (2008) 15 SCC 517, this Court held that: “21.If the right of property is a human right as also a constitutional right, the same cannot be taken away except in accordance with law. Article 300-A of the Constitution protects such right. The provisions of the Act seeking to divest such right, keeping in view of the provisions of Article 300-A of the Constitution of India, must be strictly construed.” (Emphasis supplied) 

 

The Court recalled that in Delhi Airtech Services (P) Ltd. v. State of U.P. reported in (2011) 9 SCC 354, this Court recognised the right to property as a basic human right in the following words: “30. It is accepted in every jurisprudence and by different political thinkers that some amount of property right is an indispensable safeguard against tyranny and economic oppression of the Government. Jefferson was of the view that liberty cannot long subsist without the support of property. “Property must be secured, else liberty cannot subsist” was the opinion of John Adams. Indeed the view that property itself is the seed-bed which must be conserved if other constitutional values are to flourish, is the consensus among political thinkers and  jurists.”(Emphasis supplied) 

 

In Jilubhai Nanbhai Khachar v. State of Gujarat reported in 1995 Supp (1) SCC 596, this Court held as follows: “48. … In other words, Article 300-A only limits the powers of the State that no person shall be deprived of his property save by authority of law. There has to be no deprivation without any sanction of law. Deprivation by any other mode is not acquisition or taking possession under Article 300-A. In other words, if there is no law, there is no deprivation.” (Emphasis supplied) 

 

In Tukaram Kana Joshi v. MIDC reported in (2013) 1 SCC 353, this Court held that the State must comply with the procedure for acquisition, requisition, or any other permissible statutory mode. The State being a welfare State governed by the rule of law cannot arrogate to itself a status beyond what is provided by the Constitution. 

 

The Court drew on its decision in State of Haryana v. Mukesh Kumar reported in (2011) 10 SCC 404 held that the right to property is now considered to be not only a constitutional or statutory right, but also a human right. Human rights have been considered in the realm of individual rights such as right to shelter, livelihood, health, employment, etc. Human rights have gained a multifaceted dimension. 

 

The Court observed: "We regret to state that the learned Single Judge of the High Court did not deem fit even to enquire with the State whether just and fair compensation was paid to the appellant or not. The learned Single Judge rejected the writ petition only on the ground of delay. As held by this court in Vidya Devi v. The State of Himachal Pradesh & Ors. reported in (2020) 2 SCC 569, delay and laches cannot be raised in a case of a continuing cause of action or if the circumstances shock the judicial conscience of the court. The condition of delay is a matter of judicial discretion, which must be exercised judiciously and reasonably in the facts and circumstances of the case. As held by this Court, it would depend upon the breach of fundamental rights, and the remedy claimed, and when and how the delay arose. There is no period of limitation prescribed for the courts to exercise their constitutional jurisdiction to do substantial justice."

 

The Court relied on its decision in P.S. Sadasivaswamy v. State of T.N., (1975) 1 SCC 152. The Court observed that in a case where the demand for justice is so compelling, a constitutional court would exercise its jurisdiction with a view to promote justice, and not defeat it. 

 

In Tukaram Kana Joshi v. MIDC reported in (2013) 1 SCC 353, this Court while dealing with a similar fact situation, held as follows:“11. There are authorities which state that delay and laches extinguish the right to put forth a claim. Most of these authorities pertain to service jurisprudence, grant of compensation for a wrong done to them decades ago, recovery of statutory dues, claim for educational facilities and other categories of similar cases, etc. Though, it is true that there area few authorities that lay down that delay and laches debar a citizen from seeking remedy, even if his fundamental right has been violated, under Article 32 or 226 of the Constitution, the case at hand deals with a different scenario altogether. The functionaries of the State took over possession of the land belonging to the appellants without any sanction of law. The appellants had asked repeatedly for grant of the benefit of compensation. The State must either comply with the procedure laid down for acquisition, or requisition, or any other permissible statutory mode.” (Emphasis supplied)

 

Prior to this, in Dharnidhar Mishra v. State of Bihar, the Patna High Court Justice Chakradhari Sharan Singh had passed a judgement July 19, 2019. It reads: "The petitioners are seeking quashing of an order dated 08.01.2019, passed in Misc. Case No. 02 of 2019 by the Collector, Samastipur, whereby the petitioners’ claim for compensation against acquisition of their land has been rejected. It is the petitioners’ case that the land, in question, was acquired in L.A. Case No. 07 of 1976. After 42 years of the said acquisition, the petitioners appear to have filed their application before the Collector. The Collector has noted that the petitioners did not submit any paper or notification in connection with acquisition of their land for payment of compensation. I do not find any justification on record coming forth to explain the delay of 42 years. This writ application appears to be misconceived and is accordingly dismissed."

A Letters Patent Appeal was filed in this very case. A division bench of Justices Ashutosh Kumar and Satyavrat Verma passed a judgement on February 7, 2023. The judgement reads: "In view of the categorical stand of the State that the land of the appellants had been consumed and that the State is ready to compensate the appellants, nothing remains in this appeal to be decided.  The appellants have been informed about the value of the land has been assessed at Rs.4,68,099/-. All that the appellants have to do is to file an application before the concerned authority as to how the amount shall be apportioned between him and his son. It is expected that the decision in that regard by the State authority shall be taken without any delay as already the matter has become five decades old. The appeal stands disposed of."

The penultimate para of the Supreme Court's order reads: "we are of the view that we should set aside the impugned order passed by the High Court and remit the matter for fresh consideration." The court found both the orders of the High Court to be unjust. 

 

Constitutionality of Chief Election Commissioner and other Election Commissioners Act, 2023 remains sub judice

In Dr. Jaya Thakur v. Union of India, Justices Sanjiv Khanna and Dipankar Datta heard the applications for stay of selection and appointment of the Election Commissioners, challenging the vires of Section 7(1) of the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service, and Term of Office) Act, 2023. The 10 page long judgement concluded: "we are not inclined to accept the prayer for grant of stay. Accordingly, the applications seeking stay are dismissed. We would clarify that the observations in this order are tentative and are not to be treated as final and binding, as the matter is sub-judice."

The primary grounds of challenge was twofold:

1) Section 7(1) of the 2023 Act dilutes, if not amends or modifies, the judgment of Court’s Constitution Bench in Anoop Baranwal v. Union of India, by substituting the Chief Justice of India with a Union Cabinet Minister nominated by the Prime Minister in the Selection Committee for the post of the Chief Election Commissioner and the Election Commissioners. 

2) The provision has a direct and potential impact on the conduct of transparent, free and fair elections, one of the foundational requirements of democracy.

The selection process of the Election Commissioners was challenged on the ground of procedural irregularity, affecting the fairness, transparency and objectivity in the selection process in question. The Leader of Opposition in the House of the People was not furnished necessary details of the six shortlisted candidates in advance to effectively participate in the selection process. The names and details were statedly furnished minutes before the meeting for the selection of the Election Commissioners was held on March 14, 2024. Therefore, he was denied the opportunity to choose and have his voice heard. 

The writ petition challenged the vires of the 2023 Act, which was sub-judice before the Court since January 2, 2024, and therefore soon after the resignation of one of the Election Commissioners, applications for stay were filed, mentioned and directed to be listed for hearing before the Court on March 15, 2024. However, the selection and appointment of two Election Commissioners was made on March 1, 2024.

The applicant-petitioners had urged the court to direct fresh selection with the Chief Justice of India as a member of the Selection Committee through an interim order. The Court observed, "This would be plainly
impermissible, without declaring Section 7(1) as unconstitutional. Further, we would be enacting or writing a new law replacing or modifying Section 7(1) of the Act, as enacted by the Parliament, if such a contention were accepted. Moreover, any interjection or stay by this Court will be highly inappropriate and improper as it would disturb the 18th General Election for the Lok Sabha which has been scheduled and is now fixed to take place from 19.04.2024 till 01.06.2024. Balance of convenience, apart from prima facie case and irreparable injury, is one of the considerations which the court must keep in mind while considering any application for grant of stay or injunction. Interlocutory remedy is normally intended to preserve status quo unless there are exceptional circumstances which tilt the scales and balance of convenience on account of any resultant injury. In our opinion, grant of stay would lead to uncertainty and confusion, if not chaos. That apart, even when the matter had come up earlier and the applications for stay were pressed, we had refused to grant stay."

The Court relied on the decision in T.N. Seshan v. Union of India and on the insightful observations of Dr. B. R. Ambedkar. The Court dismissed the applications seeking stay in I.A. No. 66382/2024 in W.P. (C) 11/2024, I.A. No. 4223/2024 in W.P. (C) 13/2024, I.A. No. 62608/2024 in W.P.(C) No. 14/2024, I.A. No. 68091/2024 in W.P. (C) 87/2024, I.A. No. 30286/2024 in W.P. (C) 87/2024, I.A. No. 63879 of 2024 in W.P. (C) No. 87 of 2024 and I.A. No. 69713/2024 in W.P. (C) 191/2024 are dismissed. It also dismissed applications seeking intervention in I.A. No. 64017/2024 in W.P.(C) 14/2024 and I.A. No. 66282/2024 in W.P. (C) 87/2024 are dismissed. It granted permission to the intervenor in I.A. No. 71728/2024 in W.P. (C) 14/2024 prays to withdraw the intervention application.

The Court's order reads: "We must, however express our concern on the procedure adopted for selection of the incumbents to the two vacant posts of ECs, a significant constitutional post. Such selections should be made with full details and particulars of the candidates being circulated to all members of the Selection Committee. Section 6 of the 2023 Act postulates five prospective candidates which, prima facie, appears to mean that for two vacant posts ten prospective candidates should have been shortlisted. Procedural sanctity of the selection process requires fair deliberation with examination of background and merits of the candidate. The sanctity of the process should not be affected. Nevertheless, in spite of the said shortcoming, we do not deem it appropriate at this stage, keeping in view the timelines for the upcoming 18th General Elections for the Lok Sabha, to pass any interim order or direction."

The Court noted that "the petitioners have not commented or questioned the merits of the persons selected/appointed as ECs."  

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