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The Division Bench of Justices Sanjiv Khanna and Chander Shekhar of Delhi High Court today concluded arguments and reserved its judgment in the petitions challenging the disqualification of 20 MLAs of Delhi assembly by the President, Ram Nath Kovind, on the Election Commission’s recommendation that they held offices of profit, by virtue of their appointment as Parliamentary Secretaries.
As the counsel for the Election Commission, Amit Sharma, and the senior counsel for the MLAs, K.V.Vishwanathan summed up their arguments, it became increasingly clear that the grounds for striking down their disqualification are fairly strong.
Although Sharma kept saying that the E.C.’s recommendation is non-existent once President Kovind took a decision on it, he addressed the bench on why the MLAs’ plea that they were not given an opportunity of oral hearing by the E.C. was not tenable. He took the bench through various dates, to convince that the MLAs did get ample opportunity to defend themselves. However, he also defended the E.C. saying hearing is not mandatory in such cases.
Sharma drew the attention of the bench to Section 146 of Representation of Peoples Act, 1951, dealing with the powers of the Election Commission, to make an inquiry, in connection with the tendering of any opinion to the President under Article 103 of the Constitution. Sharma contended that there is no mention of the word ‘hearing’ in this provision. Further, he suggested that ‘hearing’ will only mean representation and ‘oral hearing’ is not contemplated under this section. Non-grant of oral hearing, therefore, he suggested, is not an infirmity, as contended by the disqualified MLAs.
He also drew attention to Section 10A of Representation of Peoples Act, 1951, dealing with disqualification for failure to lodge account of election expenses. This provision also is silent on hearing, he said. He contended that disqualification of 20 Parliamentary secretaries will have grave civil consequences. According to him, Section 10A is graver than Section 149, of the RPA, as the latter deals with filling up of vacancies in the House of the People, arising out of different reasons. Section 10A provides for disqualification for three years from the date of the order. “Even in this, there is no provision for oral hearing”, he pointed out, and added, “The discretion is with the E.C. whether to grant oral hearing”.
Sharma argued: “Party cannot demand oral hearing when it is not contemplated in the section itself. Can the Court supplant a word in the statute to interpret? If the Court has to decide in which case oral hearing has to be granted, it will have huge ramifications, under Section 146 of the RPA. Every person will come before the Court, and demand an oral hearing.”
When Justice Sanjiv Khanna asked Sharma whether the E.C.’s recommendation to the President to disqualify the MLAs would become a nullity, if the Court were to conclude that there was violation of the principle of natural justice, and fair hearing of the MLAs, prelude to the making of the recommendation, Sharma quipped: “We are out, with the President issuing the order”.
Repeating his argument on merits, Sharma said Parliamentary Secretaries functioned as Executives under the Government; each MLA, functioning as Parliamentary Secretary, exercised executive powers akin to the Minister, he emphasised. To this, Justice Sanjiv Khanna referred to the argument of the opposite side, that office of profit means profit, and this must be proved. Sharma responded saying there was conflict of interests, and no checks and balances.
In his brief response, senior counsel, K.V.Vishwanathan, on behalf of the MLAs, observed that the words “it appears” has been used a few times in the President’s order disqualifying the 20 MLAs. Thus in Paragraph 27 of the President’s order disqualifying the MLAs, which reproduces the E.C.’s recommendation, it is mentioned as follows: “In such circumstances where the Respondents have clearly stated that they have already made the submissions that they wanted to make and have not made any further submissions on the details provided by the GNCTD despite multiple opportunities and the lapse of considerable period of time, it appears (emphasis ours) that they have nothing further to add. Therefore, this Commission has decided to conclude the proceedings in this matter and to render its Opinion in the present reference”.
Translating the word “it appears” in Hindi, Vishwanathan asked whether it would mean “perhaps”, and queried whether the E.C. was not sure about its conclusion while making its recommendation to the President.
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Delhi HC Upholds Rs.19.92-Cr Award To Ager Hotels Grp After Failure Of Share Subscription Deal [Read Judgment]
The Delhi High Court has upheld the Rs. 19,92,51,981 award passed by the Arbitral Tribunal in favour of Ager Hotels Group Limited and against the Convention Hotels India (CHI) Private Limited, both of which had a share subscription agreement.
The arbitral proceedings had arisen from a claim of Ager Hotels Group Limited for the refund of a sum of Rs. 12,69,12,090 with interest as the amount was paid towards share subscription by Ager Mauritius to CHI, but the shares were not issued by CHI.
Ager had sought a refund of the amount besides damages.
CHI, in its defence and counter-claim before the arbitrator, contended that Ager had committed a series of breaches of the SSA and therefore, was liable to pay a sum of Rs. 65,11,00,000 towards losses and damages suffered on account of the loss of business opportunity etc.
The tribunal had partly allowed Ager’s claim while denying the claim made by CHI.
Following this, CHI moved the high court challenging the award on the ground that it was against public policy and that the tribunal had erred in granting interest as per the share subscription agreement.
Before the high court, Ager Hotels Group Ltd. and Ager Hotels India Pvt. Ltd were represented by advocate Amar Dave and team led by the senior partner of M/s. Karanjawala & Co. Nandni Gore along with senior associates Sonia Nigam, Natasha Sahrawat and Khushboo Bari and associates Arjun Sharma and Neha Khandelwal.
Reading from provisions of the Foreign Exchange Management Act and the RBI circular dated November 12, 2002, on repatriation of refund of funds received for purchase of shares, Justice Yogesh Khanna said, “The crux is if any money comes to India for purchase of shares and the shares are not purchased within 180 days, the money needs to be refunded, as simple as that”.
The court found that the award was not against public policy and relied on a judgment of the Delhi High Court which said, “This Court while considering the question whether to decline enforcement of a foreign award on the ground of public policy, is also required to consider the nature of the policy that is alleged to have been contravened. The approach that this Court would bear is one that favours enforcement of a foreign award and if the public policy considerations can be addressed without declining recognition of the foreign award, the Court would lean towards such a course.”
On the issue raised by CHI that if no damages were to be granted to Ager Hotels, then interest also ought not to have been granted, Justice Khanna said, “It is a wrong argument, the respondent raised two claims i.e., of Rs.12 crores approx. and of Rs.4.44 crores etc. which were for the exchange rate fluctuation. The arbitral tribunal did not grant the exchange rate fluctuations and if such claim was not granted, then it is wrong for the petitioner to allege the interest on outstanding dues also ought not to have been granted.”
Read the Judgment Here
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The Gujarat High Court Advocates’ Association has moved the Gujarat High Court demanding setting up of a polling booth on the premises of the high court for the Bar Council elections while challenging the provision of one polling booth for entire Ahmedabad city which, it claimed, adds to the travel time for high court lawyers desirous of casting their votes.
The association has challenged the decision of the returning officer against providing a polling booth for West Zone in the High Court premises.
As of now, there is a provision of only single pooling booth at City Civil Court, Bhadra. All eligible voters from the high court are required to travel to Bhadra to cast their votes.
Impleading the Bar Council of Gujarat and its returning officer, the association challenged the February 19 decision of the RO rejecting its demand for a separate polling booth for West Zone of Ahmedabad saying the same is illegal and violative of Article 14 of the Constitution of India as many lawyers fail to cast their vote despite their desire to participate in the election process as travelling to and from Bhadra to cast vote consumes a lot of time.
The petition, filed through association’s secretary Prithvisinh Jadeja, said, “The provision of only one polling booth for entire Ahmedabad City for 12,304 voters is contrary to the provisions of the Advocates Act and BCI Rules which provide for giving just reasonable and fair opportunity to eligible voters to cast their votes”.
It said, “All members of the association are put to great inconvenience and hardships in exercising their right to vote in the Bar Council of Gujarat election on account of the provision of only single pooling booth at City Civil Court, Bhadra. Time and again almost all members of the association have raised the demand that there should be one polling booth at the High Court premises also for the Bar Council of Gujarat election since, more than 1200 members of the Association are deprived of the easy access to the polling booth and thereby the representation of the High Court Advocates in the elected body of the Bar Council of Gujarat is prejudicially affected”.
The association claimed that if the voting pattern at the district and taluka level is examined, one would see substantial votes are polled at taluka and district level in comparison to voting in Ahmedabad city and more particularly voting by high court lawyers and attributed the trend to the polling booth being set up at City Civil Court, Bhadra, which is approximately 9 km away from the high court.
“The time which is taken to reach polling booth is approximately 45 minutes and a return journey to the high court takes 45 minutes. Each eligible voter is supposed to cast 25 preferential votes. Considering the rush at this single polling booth provided at City Civil Court, Bhadra, it would consume at least 30 minutes more for standing in the queue, obtaining ballot paper and casting 25 preferential votes.
“Therefore, each lawyer would require at least two hours at his disposal to cast his vote. On the day votes are polled, the courts function in a usual manner and therefore, it becomes impossible for the lawyers practicing in the High Court to spare two hours for casting their votes. This finally results in denial of the right to vote despite their desire to cast vote,” the petition said.
It also cited guidelines issued by the Election Commission of India in respect of the provision of polling booth which provides that for every polling booth, the voters should not exceed 1200. Further, the polling booths are to be so set up that no voter should require ordinarily to travel more than 2 km to reach the polling booth.
The association also argued against the policy of the respondents providing for separate polling booth for every 40 eligible voters at taluka or district association level and said, “Lawyers at a small Taluka court, where the eligible voters are just 40, will have a facility of separate polling booth at their doorstep, whereas, in megacity like Ahmedabad, where the voters list consists of 12,304 voters, there is be a single polling booth.”
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Expressing concern over growing involvement of school-going children in various crimes, Vice President M Venkaiah Naidu today proposed “overhauling” the education system and suggested to retrace “our roots”.
Addressing the Silver Jubilee convocation of Siva Sivani Institute of Management, the vice president said the education system from the school level to higher education should be completely overhauled to “ensure that the institutions churn out ideal citizens”.
“The present-day formal education should make the students acquire new life skills, enable them to innovate and think out-of-the box to face a globalised and competitive world,” he was quoted as saying in an official release.
“What is happening of late is a matter of grave concern for all of us. We are regularly coming across instances of juveniles committing crimes, even heinous ones at times. The time has come for us to go back to our roots,” said the vice president.
He said the study of Indian culture, civilisation and history is essential for the students to develop a proper understanding and perspective on our glorious past.
“Our culture always taught us to respect women, elders, teachers, nature, and animals,” Naidu said.
He said education was a life-long process and does not end with the acquisition of a degree or post-graduation certificate.
“The present-day formal education should make the students acquire new life skills, enable them to innovate and think out-of-the box to face a globalised and competitive world. The time spent by students in school should be divided equally between the classroom and play field,” he said.
Naidu also underlined the need for participation of students in sports and other extra-curricular activities, including gardening and crafts, which he said would help in development of students into “good socially-conscious citizens”.
He said like in the past, regular physical exercises, drills and lessons on moral science should become part of the syllabus in schools to ensure that children develop into complete human beings.
“The policy-makers, educationists, vice-chancellors and other stake-holders in the educational field should consider revamping the system. Rote method of learning should not be the basis to test students’ skills and knowledge,” he said.
The vice president also suggested the academic atmosphere on campuses be not allowed to be vitiated or disrupted by activities which are detrimental to students’ interests.
He urged the students not to consider education as merely for employment but for enlightenment and empowerment.
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The ministry informed a bench of Acting Chief Justice Gita Mittal and Justice C Hari Shankar that it would allow such candidates against its 90,000 vacancies.
The response came on a plea by National Federation of the Blind challenging two recent notifications according to which visually impaired persons were barred from appearing for recruitment exams.
The ministry also said that it would issue a fresh notification in this regard.
The court has now fixed the matter for further hearing on March 1.
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A magistrate’s court here today issued a bailable arrest warrant against diamond trader Nirav Modi in connection with a case of alleged tax evasion in purchase of a property which turned out to be “benami”, an Income Tax department official said.
Benami properties are those that are not bought and registered in the name of their real owner. Holding benami properties is an offence.
Modi is also a key accused in the Rs 12,717 crore Punjab National Bank fraud case.
“The court has issued a bailable warrant against Modi,” the official said.
He said the department was investigating the matter against Modi since 2017 but declined to disclose the details of the property.
The Income Tax department had recorded the statements of Modi, who is said to be in the US, and some of his employees.
The official said the probe revealed that Modi had given a false statement to department
“When we went to his residence in Worli recently with summons, we found it locked,” the officer said. A case was later filed in the court.
The court adjourned the case till next month.
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