Bombay HC Quashes BMC’s Demolition Order Against Kangana Ranaut’s Building As ‘Actuated By Malice’: Bombay HC

As anticipated, the Bombay High Court in Kangana Ranaut’s case titled Ms. Kangana Ranaut vs. Municipal Corporation of Greater Mumbai and 4 others in Writ Petition (ST.) No. 3011 of 2020 delivered on November 27, 2020 rose up to the occasion and in a huge respite to eminent Hindi film actress Kangana Ranaut quashed the notice and order issued by the Brihanmumbai Municipal Corporation (BMC) to demolish her bungalow. The High Court came to the palpable conclusion that the order of BMC was “actuated by legal malice”. BMC must admit what Bombay High Court has pointed out so explicitly, elegantly and effectively!

To start with, this extremely laudable, latest, learned and landmark judgment authored by Justice SJ Kathawalla for himself and Justice RI Chagla sets the ball rolling by first and foremost observing in para 1 that, “The above Writ Petition is filed by the Petitioner – Ms. Kangana Ranaut against Respondent No. 1 – Municipal Corporation of Greater Mumbai (‘MCGM’), Respondent No. 2 – Executive Engineer ( B & F ), Respondent No. 3 – Government of Maharashtra, through its Secretary, Respondent No. 4 – Shri Bhagyavant Late, Designated Officer of MCGM and Respondent No. 5 – Shri Sanjay Raut, Member of the Rajya Sabha. Respondent No. 5 is the Chief spokesperson of Shiv Sena, a political party which is a part of the Government of Maharashtra, and which Party is also the ruling party in MCGM. Respondent No. 5 is also the Executive Editor of Marathi Daily Newspaper ‘Saamna’.”

While stating the relevant facts required to be set out at the outset, the Bench then observes in para 3.1 that, “The Advocate for the Petitioner first moved this Court at around 11.30 a.m. on 9th September, 2020, and sought circulation of the Writ Petition at the earliest. Since the MCGM had filed a Caveat, he was asked to give notice to the MCGM and the hearing was vexed within an hour i.e. at 12.30 p.m. The unaffirmed Petition, being filed in extreme urgency and when the Petitioner was not available in Mumbai, lacked material particulars/averments and was incomplete. The Petitioner was, therefore, granted liberty to amend the Writ Petition at the time of granting ad-interim reliefs on 9th September, 2020 and also on 10th September, 2020. Pursuant thereto, the Petition was amended. In the amended Writ Petition, the Petitioner reiterated her allegation that the demolition carried out by MCGM was malafide/malicious, with ulterior motives. In support thereof she interalia relied on a video clip recording the interview of Shri Sanjay Raut, wherein he had allegedly abused the Petitioner. The also relied on the news report pertaining to the demolition of her bungalow, captioned ‘Ukkhad Diya’, meaning – ‘uprooted’ published in the Marathi daily newspaper ‘Saamna’ of 10th September, 2020 (i.e. the day after the demolition), of which newspaper Shri Raut is the Executive Editor. Therefore, by our Order dated 22nd September, 2020, the Petitioner was allowed to join Shri Raut as party Respondent to the above Writ Petition. It was also alleged by the Petitioner in the above Writ Petition, that Shri Bhagyavant Late, Designated Officer of MCGM, had with malafide and malicious intent, issued the impugned Notice dated 7th September, 2020, followed by an Order of Demolition dated 9th September, 2020, and proceeded to demolish the bungalow of the Petitioner. Therefore, by our said Order dated 22nd September, 2020, Shri Late was also allowed to be joined in his personal capacity, as party Respondent to the above Writ Petition. Consequently, Shri Bhagyawant Late and Shri Sanjay Raut are joined as Respondent Nos. 4 and 5, respectively, to the above Writ Petition.”

Be it noted, it is then very rightly pointed out in para 17.14.4. that, “The object and purpose of Section 354A is stoppage of unauthorized ongoing work (which is described in Section 342) by a notice and its removal, if despite such notice the noticee does not stop the unauthorized ongoing work or produce authorization within twenty-four hours. The purpose is not demolition of unauthorized work already carried out (in contravention of Sections 342 or 347). The State action of demolition of works under Section 354A in the present case, is thus clearly for a purpose not authorized by the Act. There is no reasonable or probable cause or excuse for the State action complained of and it has been carried out, as we shall demonstrate presently, wrongfully and willfully.”

Truth be told, it is then rightly postulated in para 17.14.6. that, “Coming now to the wrongfulness of the State action, it is important to note at the outset that anything which is not authorized by law and which infringes a citizen’s rights is wrongful on the part of the State. As we have seen above, assuming that the subject structures were illegal and amounted to unauthorized works as per Sections 342 and 347 of the Act, it was the Petitioner’s right to show cause why they should not be removed, altered or pulled down. Even after passing of a final Order for removal, alteration or pulling down of these works, upon her failure to show sufficient cause, it was open to the Petitioner to approach the MCGM for regularization of such works under Section 53(3) of the MRTP Act or alternatively, approach the Court for preventing the threatened action. To the extent she was prevented from doing so, the action of the MCGM in taking precipitate steps under Section 354A, as we have noted above, can only be described as wrongful. But what really aggravates the wrongfulness and lends further credence to the case of malice in law, is the manner in which the whole action was carried out as we have described above.”

More damningly, it is then envisaged in para 17.14.7. that, “The manner in which the action was carried out, as we have noted above, leaves hardly any manner of doubt that the purpose for using the provision of Section 354A in the instant case was not only unauthorized, considering the distinction between Sections 351 and 354A, but more sinister than that, namely, to prevent the Petitioner from taking recourse to her legal remedies. The whole attempt on the part of the Respondent – MCGM and its officers was to somehow present the Petitioner with a fait accompli, leaving her practically no time to seek redressal of her grievance through Courts by means of preventive action.”

In essence, it is then summed up in para 17.14.8. that, “That sums up the case against the Respondents of malice in law. The MCGM, which is an organ of the State, has done something “without lawful excuse”; it has proceeded to act “wrongfully and willfully without reasonable or probable cause”; its act can only be described as a deliberate act in disregard of the rights of a citizen; the true object of the act clearly appears to be to reach an end different from the one for which the power was entrusted to it. The exercise of power can be summed up as bad in law and lacking in bonafides. It is nothing but malice in law.”

Quite remarkably, the Bench then minces no words to hold in para 18.5 that, “In any case, it is settled law as held by the Supreme Court in a catena of decisions that the availability of an alternative remedy is only a self-imposed restraint and not any bar on the jurisdiction of the High Court in exercising its jurisdiction under Article 226 of the Constitution of India. The Supreme Court has held that the High Court is justified in exercising its powers to the exclusion of all other remedies when it finds that the action of the State or its instrumentality is arbitrary and unreasonable and as such violative of Article 14 of the Constitution of India. We have reached a categorical conclusion, as discussed above, that the action of the State is arbitrary and unreasonable and informed by malice in law. So far as this conclusion is concerned, in the present case in view of the clear facts and evidence made available before this Court, no disputed question of facts can be said to have arisen. Secondly, merely because disputed questions of facts arise, a party cannot be relegated in every such case to a lengthy, dilatory and expensive process of a Civil Suit against a public body, particularly if the action is highhanded and illegal. In fact, the Courts have frowned upon public bodies raising such contentions and held that State instrumentalities ought not to raise technical pleas to defeat the rights and legitimate claims of a citizen.”

What is equally remarkable is as put forth in para 18.10 that, “We are of the view, that this well settled law, when applied to the facts of the present case, makes it apparent that the objection as to the maintainability of the Writ Petition is clearly an afterthought, in order to defeat the Petitioner’s rights. The Petitioner is aggrieved by an ex-facie illegal, arbitrary, unjustified and highhanded and malafide action of MCGM ignoring statutory provisions and guidelines of the Courts as well as of its own Circulars and the said action is an abuse of power and authority. The Petitioner therefore is fully justified in approaching this Court for redressal of her grievances and the protection of her rights.”

More forthrightly, it is then elucidated in para 19.4 that, “As we have come to a clear conclusion that the impugned notice under Section 354A of the Act and the action of demolition following it, are actuated by malafides, in any event, involve a clear malice in law, causing a substantial injury to the Petitioner, we would be perfectly justified, on the basis of the law stated by the Supreme Court in the case of Sunbeam Hightech Developers (supra), to order compensation against responsible Respondents. Any such Order must be preceded by an estimate prepared by an approved valuer of the damage caused to the Petitioner’s property. We would therefore have a valuer appointed for the purpose of preparing such estimate. Both parties, i.e. the Petitioner and the MCGM, shall be heard by the valuer whilst making his report of valuation. We would reserve our further Orders on such report being submitted by the valuer. We would also pass appropriate Orders on recovery of any part of such compensation from individual officers of the MCGM when ordering for payment of such compensation.”

Finally, it is then held in para 20 that, “Based on the foregoing observations, and being convinced that the impugned notice dated 7th September, 2020 and the impugned speaking Order of demolition dated 9th September, 2020 issued / passed by Shri Late / MCGM deserves to be quashed and set aside, the following Order is passed:

(i)                         The impugned notice dated 7th September, 2020 alongwith the speaking Order of demolition dated 9th September,2020 are quashed and set aside.

(ii)                       The Petitioner is allowed to take such steps as are required to make the said bungalow habitable so that the Petitioner can immediately start occupying and using the same. However, to the extent any demolished portion requires a planning permission and such permission in not in place reconstruction of such portion can only be made either in compliance with the sanctioned plan or after seeking approval of the MCGM for the work proposed. In the event any application is made, the MCGM shall decide the same within a period of four weeks from the date of receipt of such application / plan.

(iii)                   As regards the area, which is not demolished by the MCGM, if the MCGM proposes to take any action, it may issue a notice giving 7 days time to the Petitioner to respond to / comply with the same. In the meantime, the Petitioner shall also be at liberty to make an application seeking regularization of the works already carried out but not demolished under Section 53 (3) of the MRTP Act, 1966. In case any such application is made no further steps in response to the notice shall be taken by the MCGM before disposal of such application and a copy of the Order provided to the Petitioner as well as her Advocate.

(iv)                   M/s. Shetgiri and Associates, Architects, Engineers, Interior Designers and Valuers are appointed as the Surveyors / Valuers to value and determine the extent and value of damage and loss caused to the Petitioner and

(v)                      submit their report to this Court on 9th March, 2021 to enable the Court to award compensation to the Petitioner. The Surveyors / Valuers shall hear both parties i.e. the Petitioner and the MCGM before making their report. The charges of the Surveyors / Valuers shall initially be borne by the Petitioner.

(vi)                   Liberty to the parties to apply in case of any difficulty.

(vii)                The Writ Petition to appear for further Orders on 9th March, 2021.”

Before concluding, let us have a cursory look at some of the notable observations from this notable judgment. They are as follows:-

1.  The background of the case lends credence to the petitioner’s (Kangana) case that the demolition action was malafide and premeditated to target her for her tweets and statements.

2.  There are materials to indicate that the action of demolition smacks of malafides.

3.  There is a case of legal malice for this court to issue a writ.

4.  The manner in which demolition was carried out was unauthorized and sinister to prevent the petitioner from taking recourse to legal remedies.

5.  There was an attempt to present the petitioner with a case of ‘fait accompli’.

6.  The action of BMC can only be regarded as an action in deliberate disregard of the rights of a citizen.

7.  The impugned notice and the action of the demolition are actuated by malice.

8.  The building of Kangana Ranaut was an existing construction.

9.  The petitioner (Kangana Ranaut) should exercise restraint while airing views on public platforms.

10.       However, irresponsible comments made by a citizen are best ignored by a State. No action by State for such follies of a citizen can lie except within the four corners of law.

11.       By no means, colourable exercise of power or resort to such person or to his/her property, can be permitted in any civil society. Such actions are the very antithesis of law.

No doubt, Bombay High Court in its 166-page judgment has very rightly rapped the BMC on its knuckles and also has laid down the correct position on all the issues raised before it. BMC has no option now but to comply with it accordingly and in future also exercise extreme caution in such cases! If the Bombay High Court while ruling in her favour has asked her to exercise restraint, it has also minced no words in saying categorically that Sanjay Raut’s conduct doesn’t befit a leader. Both Raut and Kangana must mend themselves and their conduct accordingly as directed by the Bombay High Court!

Sanjeev Sirohi

NCLT Has No Jurisdiction To Examine Legality Of Action Taken Under MPID Act: Bombay HC

In a fresh and significant development, the Bombay High Court in a latest, landmark and laudable judgment titled The State of Maharashtra Through the Deputy Collector & Competent Authority (NSEL) V/s Anil Kohil in Writ Petition No. 3396 of 2019 With Civil Application No. 29 of 2020 delivered recently on 9 November 2020 has pronounced in most certain terms that the National Company Law Tribunal has no jurisdiction to examine the legality or validity of action taken under Maharashtra Protection of Interest of Depositors (In Financial Establishments) Act, 1999 (MPID Act) and it is only the designated Court constituted under Section 6 of the said Act that will have exclusive jurisdiction to deal with the same. The Division Bench of Justice SC Gupte and Justice Madhav Tamdar quashed and set aside the order dated January 28, 2019 passed by the Member (Judicial), National Company Law Tribunal, Mumbai Bench directing the de-freezing of bank account in the name of Dunar Foods Ltd, which was freezed in relation to the National Spot Exchange Limited (NSEL) payment default crisis. This certainly has to be complied with now.

To start with, it is first and foremost enunciated in para 1 that, “In the present case a very interesting question arises as to whether action taken under the provisions of the Maharashtra Protection of Interest of Depositors (In Financial Establishments) Act, 1999 (hereinafter referred to as “MPID Act”) against a “Financial Establishment”, as contemplated under the MPID Act, can be challenged not before the Designated Court under the MPID Act but before the National Company Law Tribunal (hereinafter referred to as “NCLT”) by resorting to the remedy provided under the Insolvency & Bankruptcy Code, 2016 (hereinafter referred to as “I.B. Code”). On the application of a “Financial Creditor” as contemplated under I.B. Code, an Interim Resolution Professional (hereinafter referred as “IRP”) is appointed by NCLT by exercising power under section 7 of the I.B. Code against the Corporate Debtor as contemplated under I.B. Code, which is also the Financial Establishment under the MPID Act and de-freezing of the corporate Debtor’s account attached in MPID proceedings is ordered. This order is the subject matter of challenge in this petition.”

While setting the background, it is then put forth in para 4 that, “The State of Maharashtra through the Deputy Collector and Competent Authority (NSEL), by the present Writ Petition filed under Article 226 and 227 of the Constitution of India , has approached this Court challenging the legality and validity of the order dated 28/01/2019 passed by the Member (Judicial), National Company Law Tribunal, Mumbai Bench in M.A.No.1372/2018 in CP(IB)-1138(MB)/2017. By the said order, National Company Law Tribunal (NCLT) directed de-freezing of bank account No.1952320006245 in HDFC Bank, Karnal, Haryana, (hereinafter referred to as “said account”) in the name of Dunar Foods Ltd.”

While dealing with factual aspects, it is then laid down in para 5 that, “Some of the factual aspects set out in the petition are as follows :

(i)                     An FIR being C.R.No.216/2013 was registered against Financial Technologies (India) Ltd. (hereinafter referred to as “FTIL”) now known as “63 Moons Technologies Ltd.”, the National Spot Exchange Ltd. (hereinafter referred as “NSEL”), the Directors and key management persons of FTIL and NSEL, 25 borrowers/trading members of NSEL, some brokers of NSEL, and others, under sections 120B, 409, 465, 467, 468, 471, 474, 477(A) of the Indian Penal Code, by the M.R.A. Marg police station on 30/09/2013. In the said FIR, the first informant had alleged that NSEL had caused wrongful loss of about Rs.2.2 crores to himself, and wrongful loss of approximately Rs.5600 crores to more than 13000 investors. On the same day, i.e. on 30/09/2013, the investigation into the said case was transferred to Economic Offence Wing, Mumbai (hereinafter referred to as “EOW”), who registered EOW C.R. No.89 of 2013. The EOW applied the provisions of the MPID Act to the said C.R. in October 2013.

(ii)                  NSEL is a company registered under the Companies Act, 1956 having its registered office at Chennai, Tamil Nadu. The NSEL provided an electronic platform for spot trading in commodities, and used to operate from 16 States across the country. The NSEL was promoted by FTIL, now known as “63 Moons Technologies Pvt. Ltd.”, which holds 99.99% of the share capital of NSEL. The balance 0.01% of the share capital of the NSEL is held by the National Agricultural Co-operative Marketing Federation of India Ltd. (hereinafter referred as “NAFED”).

(iii)                In the petition, a reference has been made to notification dated 05/06/2007 and further notification dated 06/02/2012 issued by the Department of Consumer Affairs, Ministry of Consumer Affairs, Government of India (hereinafter referred as “DCA”) by which exemption was granted to NSEL from the operation of the Forward Contracts (Regulation) Act, 1952 (hereinafter referred as “FCRA”) for all forward contracts of one day duration for sale and purchase of commodities traded on its platform subject to certain conditions.

(iv)                In the Writ Petition, the manner in which NSEL was working has been set out in detail.

(v)                   As per the FIR, during the initial contracts, member companies squared off the contracts on the dates of maturity. However, later on, these companies did not honour their commitments and caused wrongful loss of about Rs.5600 crores to about 13000 investors. The members of the NSEL fraudulently obtained huge funds from the NSEL against non-existent stocks of commodities. There was a semblance of trading, which was actually being done in non-existent goods, by issuing forged warehouse receipts. Further, the warehouses, which were an integral part of the NSEL as the commodities were required to be deposited in the exchange designated and certified warehouses as part of the pay-in obligations, lacked capacity and some of them had no stocks.

(vi)                The NSEL vide their circular dated 14/8/2013 announced a settlement schedule. According to this schedule, NSEL had to make payouts of Rs.5,574.31 crores to its members. The settlement calendar announced by NSEL was spread over 30 weeks for pay-out on pro-rata basis to 148 members. The NSEL subsequently defaulted in all the payouts since the announcement of the settlement plan.

(vii)             The investigation revealed that the mode of transaction that the NSEL was allowed by the Government of India was not followed by the NSEL, and that the NSEL had promised attractive returns to persons who had traded on the NSEL platform. The NSEL had assured them that if they entered into a contract on T+2, they would get an attractive return of 14% to 16% on the completion of the contract on T+25.”

While elaborating further, it is then set out in para 6 that, “As set out hereinabove, the FIR was registered on 30/09/2013, and after investigation, the EOW filed charge-sheet on 06/01/2014 in EOW. C.R. No.89/2013 in MPID Court, Mumbai. EOW thereafter filed supplementary charge-sheets from time to time including on 04/06/2014, 04/08/2014 and 27/12/2018. It is set out in the petition that as provisions of MPID Act were made applicable, the Government of Maharashtra vide notification dated 28/08/2014 issued under section 4 of the MPID Act attached several properties of several companies including Lotus Refineries Pvt. Ltd., White Walter Foods Pvt. Ltd., Shree Radhey Trading Co., Vimladevi Agrotech Ltd., Mohan India Pvt. Ltd., Tavishi Enterprises Ltd., Brinda Commodity Pvt. Ltd., Ark Import Pvt. Ltd., P..D.Agroprocessors Pvt. Ltd., Aastha Minmet India Pvt and Juggernaut Projects Ltd., White Water Foods Pvt. Ltd., Swastik Overseas, MSR Foods, Loil Continental, Loil Health Foods Ltd., Loil Overseas Foods Ltd., Spin Cot Textiles Pvt. Ltd., NCS Sugars Ltd., Metkore Alloys and Industries Ltd., Yathuri Associates, Namdhari Food Internation Pvt. Ltd., Amdhari Rice and General Mills and of Dunar Foods Ltd. It appears that during investigation, as and when the Investigating Agency got knowledge about properties of various companies/persons to which the provisions of MPID Act in relation to said FIR could be applied, necessary notifications under section 4 were issued by Government of Maharashtra attaching immovable and movable properties. By the notification dated 19/10/2018 various properties belonging to various parties were attached including of M/s.E.D. Agro Procedures Pvt. Ltd. and Dunar Foods Pvt. Ltd. including the said account. In this petition, we are concerned with defreezing of the said account which is subject matter of the impugned order dated 28/01/2019.”

Going forward, it is then put forth in para 7 that, “When the said investigation by EOW was going on and when the authorities were taking action under MPID Act, simultaneously on 27/06/2017, the State Bank of India, a Financial Creditor of M/s. Dunar Foods Ltd., invoked the jurisdiction under section 7 of the I.B. Code for the defaulted financial debt of Rs.758,73,62,546/- outstanding against the Corporate Debtor M/s.Dunar Foods Ltd. In the said proceedings, by the order dated 22/12/2017, the said petition was admitted by the NCLT and Mr. Anil Kohli was appointed as IRP and directed to comply with provisions of sections 13 and 15 onwards of the I.B. Code. It was further directed that as the petition was held fit for “admission”, hence as a consequence Moratorium as prescribed under section 14 of the I.B.Code would commence. It was further directed that on enforcement of Moratorium, certain prohibitions were applicable, such as institution of any Suit before a Court of Law, transferring of any Asset of the Debtor, encumbering any rights over the assets of the Debtor. However, it was also clarified that the supply of essential goods of services to the Corporate Debtor shall not be terminated during Moratorium period. It shall be effective till completion of the Insolvency Resolution Process or until the approval of the Resolution Plan as prescribed under section 31 of the I.B. Code. Accordingly, the said petition stood admitted. The Corporate Insolvency Resolution Process commenced from the date of the order.”

In hindsight, it is then mentioned in para 8 that, “It is significant to note that on 20/02/2018, M.A.No.237/2018 was filed by Dunar Foods Ltd. through IRP under section 9 of MPID Act before the Designated Court under MPID Act, seeking direction to defreeze the bank accounts of Dunar Foods Ltd. attached pursuant to the notifications issued by the Home Department of Government of Maharashtra under the MPID Act from time to time and seeking further direction to the Competent Authority designated under MPID Act to forthwith handover all assets of Dunar Foods Ltd. to the Applicant. By the order dated 28th December, 2018, passed by the learned Special Judge (MPID Act) City Civil and Sessions Court for Greater Bombay passed below Exhibit-1 in Miscellaneous Application No.237 of 2018, the said application was rejected, however, it was clarified that IRP was at liberty to raise objections before the Court under section 7 of the MPID Act.”

Of course, what cannot be ignored is then stated in para 9 that, “In the meanwhile, on 12/11/2018, M.A.No.1372 of 2018 in C.P.No.1138/I & BC/NCLT/MB/MAH/2017 was filed by IRP for Dunar Foods Ltd. under section 60(5), 14(1a) and 74(2) of I.B. Code before the NCLT, seeking direction to de-freeze the said account of the corporate debtor attached pursuant to the notifications issued by the Home Department, Government of Maharashtra under MPID Act from time to time and consequential directions to the Respondent, being the Competent Authority designated under MPID Act, to forthwith handover all assets of Dunar Foods Ltd. to the Applicant. It is further prayed that action be directed to be initiated under section 74(2) of the Code against the concerned officers of the corporate debtor for deliberate and willful violation of section 14 of the Code. A detailed reply dated 15/01/2019 was filed by the Deputy Collector and Competent Authority (NSEL) to M.A.No.1372/2018. By the impugned order dated 28/01/2019, passed by the learned Member (Judicial) NCLT, Mumbai Bench, M.A.No.1372/2018 was partly allowed by directing defreezing of the said account. The said order is challenged by the State of Maharashtra through Deputy Collector and Competent Authority, (NSEL) in the present writ petition.”

To put it succinctly, it is then pointed out in para 28 that, “The Respondents have also relied on the judgment of the Designated Court under the MPID Act at Bombay City Civil and Sessions Court, Mumbai in Roofit Industries Limited Vs. The State of Maharashtra in MPID Special Case No. 34 of 2004. A perusal of said order dated 18.08.2017 passed by the Special Judge, MPID Act clearly shows that provisions of I.B. Code were pointed out to the Court and after giving hearing to Competent Authority, depositors, objectors and others, Competent Authority and EOW were directed to hand over certain properties to the Applicant in the said case who claims to be an Interim Resolution Professional appointed by the NCLT for Roofit Industries Ltd. The operative portion of said order dated 18.08.2017 is reproduced herein below:-

“ORDER

1. Application is allowed.

2. Competent Authority and EOW is directed to hand over to applicant/intervener the custody and charge of the immovable properties mentioned at Sr. No. 8,10, 12,16,17,18,19, 20 and 23 of the notification dtd. 06.05.2016 alongwith all documents, record etc., within two weeks from today. They are further directed to handover to applicant office equipment, computers, furnitures and fixture in premises at Sr.5 and 24 of the notification.

3. The Competent Authority and EOW are directed to hand over amount of Rs.40 Lakhs alongwith accrued interest, if any to the applicant, within two weeks from today.

4. The Competent Authority is directed to the represent all depositors/investors before the applicant/intervener and to file the claims on their behalf. CA shall do all acts necessary for safeguarding and protecting the interest of depositors in Roofit Industries.

Date: 18.08.2017                       A. S. Kaloti

Special Judge, M.P.I.D. Act                             & Addl. Sessions Judge,

City Civil & Sessions

Judge At Bombay.

Thus, even the said order, on which reliance is placed by the Respondents, shows that the IRP in that case approached the Designated Court under the MPID Act and after hearing all the parties, an order was passed and certain directions in the interest of depositors as contemplated under the MPID Act were also issued.”

For the sake of clarity, it is then clarified in para 29 that, “The learned counsel for the Petitioner has also relied on the judgment of NCLAT in the case of JSW Steel Ltd.(supra) wherein it has been held that the action of Directorate of Enforcement did not meet the criteria under Section 32-A (1) (b) of I.B. Code. However, in the present case, the Designated Court under MPID Act will examine the said aspect and therefore, the said judgment is not applicable to the present case.”

In the ultimate analysis, the Bench then holds in para 30 that, “Thus, in view of the above discussion, we hold that the NCLT has no jurisdiction to examine legality or validity of action taken under MPID Act and it is only the Designated Court constituted under Section 6 of the MPID Act that will have exclusive jurisdiction to deal with the same. Therefore, the impugned order passed by the NCLT is without jurisdiction and therefore, amenable to a challenge in our writ jurisdiction.”

Quite significantly, it is then held in para 31 that, “Thus, it is clear that the only remedy for Respondent-IRP is to approach the Designated Court under Section 7 of the MPID Act. Therefore, the impugned order passed by NCLT by which the said account was directed to be de-freezed, is without jurisdiction. The learned AGP has rightly relied on the judgments in Whirlpool Corporation (supra), Harbanslal Sahnia (supra), Committee of Management(supra) and Godrej Sara Lee Ltd. (supra) wherein it is consistently held that the power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution. This power can be exercised by the High Court not only for issuing writs in the nature of Habeas Corpus, Mandamus, Prohibition, quo warranto and certiorari for the enforcement of any of the Fundamental Rights contained in Part III of the Constitution but also for “any other purpose”. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions, one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any fundamental right or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged.”

Now coming to the concluding paras. Para 32 states that, “In view of above discussion, we quash and set aside the order dated 28/01/2019 passed by the NCLT in M.A.No.1372/2018 in C.P.No.1138/I & BC/NCLT/MB/MAH/2017 by which the said account was directed to be de-freezed. The Respondents can approach the Designated Court under section 7 of the M.P.I.D. Act seeking appropriate reliefs. We have not dealt with the merits of the case and the contentions in that behalf are expressly kept open. Rule is made absolute in above terms with no order as to costs.” Finally, it is then held in the last para 33 that, “In view of disposal of the Writ Petition, Civil Application No.29 of 2020 does not survive and is disposed of as such.”

Quite rightly, the two Judge Bench of the Bombay High Court comprising of Justice SC Gupte and Justice Madhav Tamdar have substantiated this notable judgment with logical and learned reasons rightly while also noting that the only remedy for the IRP now is to approach the designated court under Section 7 of the MPID Act and set aside the NCLT’s order. It has rightly held that NCLT has no jurisdiction to examine the legality or validity of action taken under MPID Act. It has to be now complied with. There can certainly be no ever denying or disputing it!

Sanjeev Sirohi

Bombay HC Allows Muharram Procession Of Only 5 Persons With One Videographer And Only One Tazia To Be Carried In The Entire State

                          Considering the dangerous, dreaded and deadly corona virus impact especially in Maharashtra and in Bombay in particular, the Bombay High Court most recently on August 28, 2020 in a noteworthy case titled All India Idara-E-Tahafuz-E-Hussainiyat Vs The State of Maharashtra & Ors. in AD-HOC No. WP-LD-VC-350 of 2020 has in a significant order allowed only five persons with a videographer to carry Tazia, replica of the tomb of Husain who was the martyred grandson of Prophet Muhammad in processions during Muharram on August 30 from 4.30 pm to 5.30 pm from Zanabia Bhendi Bazar to the Shia Cemetry at Mazgaon. The Bombay High Court in this notable case also clarified that it will be the only Tazia to be carried in the entire State of Maharashtra! This restriction has been made primarily to ensure that this Covid-19 pandemic does not spread rapidly due to contact among many people! Very rightly so!

To start with, the ball is set rolling by  a two Judge Bench of  Justice SJ Kathawalla and Justice Madhav J Jamdar of the Bombay High Court in para 1 wherein it is observed that, “The Petitioner All India Idara-E-Tahafuz-E-Hussainiyat through its General Secretary Shri Habib Nasir has stated in the above Petition that they are one of the oldest organization of the Shia Community.”

While stating the purpose of the petition, it is then pointed out in para 2 that, “By the above Writ Petition, the Petitioner is seeking appropriate writ, order or direction to allow the rituals of Muharram to be performed during the present pandemic from 27th August, 2020 till 30th August, 2020 daily for two hours.”

To put things in perspective, it is then enunciated in para 3 that, “In the above Petition, this Court passed an order in the present matter on 27th August, 2020 whereby the Principal Secretary, Home Department and Secretary, Disaster Management Department were directed to hear the President and the General Secretary of the Petitioner Organization at 5.00 p.m. yesterday itself. Both the aforesaid Secretaries were directed to submit their decision with reasons to this Court by 11.00 a.m. today.”

As a corollary, it is then stated in para 4 that, “Accordingly, the parties have been heard by both the aforesaid Secretaries and they have taken a decision with detailed reasons today i.e. on 28th August, 2020. The same has been submitted with this Court at 11.00 a.m. as directed. A copy thereof, has also been served on the learned Advocates for the Petitioner.”

To be sure, it is then stated in para 5 that, “We have perused the aforesaid decision dated 28th August, 2020 and we have heard the learned Senior Advocate for the Petitioner, as also the learned Advocate General for the State of Maharashtra, who was requested to appear in the matter for the State, along with the learned Government Pleader and Additional Government Pleader.”

For the sake of clarification, it is then made clear in para 6 that, “Both the parties have agreed that in view of the limited order, that is being passed hereunder, no reasons in support of this Order be recorded, especially since this Order is being passed as and by way of as exception, which is not intended to be used as a Precedent by other persons, to seek permissions, to hold any festival/festivities, which would involve by their very nature congregation of people.”

Be it noted, it is then stated in para 7 that, “On behalf of the Petitioner, the General Secretary Shri Habib Nasir, has attended the hearing and we have heard him personally via Video Conferencing, though limited to the extent mentioned hereunder.”

Most significantly, the Bench then makes it known in para 8 that, “The said General Secretary, Mr. Habib Nasir has given following undertakings to this Court, which are hereby accepted:

i.                  In a representative capacity for and on behalf of the entire Shia community residing in the State, there will be only one Taziya, which will be carried from Zainabia (Bhendi Bazar) Mumbai to Byculla Mazgaon, Shia Cemetry, situated at Mumbai, in the entire State. No other Taziya other than the one mentioned hereinabove, will be carried anywhere in the State.

ii.               The aforesaid one Taziya will be carried/transported from Zainabia (Bhendi Bazar) Mumbai to Byculla Mazgaon, Shia Cemetry, situated at Mumbai, via J.J. Hospital, Prince Ali Khan Hospital, Sales Tax Office circle in a trust i.e. transport vehicle large enough to accommodate it. These will not be any procession as such, for carrying the said one Taziya, in the aforesaid manner.

iii.             In no case whatsoever, any congregation of people at any point from the beginning till the end of the said journey of aforesaid one Taziya will be allowed.

iv.            The aforesaid one Taziya will be carried along strictly aforesaid one route.

v.               The aforesaid one Taziya will be carried along the aforesaid route on Sunday 30th August, 2020 from 4:30 p.m. to 5.30 p.m.

vi.            Not more than five persons will carry the aforesaid one Taziya on a truck, as aforesaid along with one videographer. However, after taking the aforesaid one Taziya down near the graveyard, it will be carried on foot, for a distance of not more than hundred meter. The names, ages and addressed of these five persons will be submitted with the office of the Commissioner of Police, Mumbai by 5.00 p.m., on 29th August, 2020.

vii.         The Petitioner and all its members will strictly abide by the rest of the guidelines issued by the Home Department, State of Maharashtra, regarding Muharram-2020, dated 19th August, 2020, a copy of which is annexed to the above Writ Petition as Exhibit-A.”

In addition to what has been stated above, it is then also added further in para 9 that, “The State Government shall, if not already imposed, impose a restriction over gathering of people at the appropriate places, by issuing appropriate orders, including the point where aforesaid one Taziya is to start its journey, up to and including the graveyard, where its aforesaid journey will and, by passing appropriate orders under Section 144 of the Code of Criminal Procedure, 1973. The State shall also provide an escort as also a pilot car for the aforesaid truck, carrying aforesaid one Taziya and will take appropriate measures to keep the traffic away and the road clear along the aforesaid route, which is hereinabove prescribed as a route for carrying aforesaid one Taziya.”

Needless to say, it is then observed in para 10 that, “The Writ Petition is accordingly disposed of.”

Finally, this notable judgment is concluded in para 11 wherein it is stated that, “This order will be digitally signed by the Personal Assistant of this Court. All concerned will act on production by fax or email of a digitally signed copy of this order.”

To sum up, we thus see that when corona pandemic has hit worst Bombay and the State of Maharashtra in particular, the Bombay High Court Bench of  Justice SJ Kathawalla and Justice Madhav J Jamdar of the Bombay High Court has permitted one Taziya to be carried out in the entire State of Maharashtra and Muharram procession of only 5 persons with one videographer! This is certainly a right step in the right direction also! The religious sentiments of Shia Muslims have been taken into account but simultaneously many terms and conditions have also been imposed which the petitioner “All India Idara-E-Tahafuz-E-Hussainiyat” through its General Secretary “Shri Habib Nasir” has accepted also as has already been discussed also hereinabove! Very rightly so!

Sanjeev Sirohi

Bombay HC Orders Television Channels Maha Movie And Manoranjan TV To Abstain From Broadcasting Zee Owned Films Jung And Kartavya

    It has to be stated right at the outset that in a major and significant development, the Bombay High Court in a recent, remarkable and righteous decision titled “Zee Entertainment Enterprises Limited Vs Teleone Consumer Product Pvt. Ltd. & Ors.” in exercise of its ordinary original civil jurisdiction in its commercial division delivered on 16th July, 2020 has ordered the television channels Maha movie and Manoranjan TV to abstain from broadcasting Zee owned films – Jung and Kartavya. Very rightly so! This commendable judgment was delivered after the entertainment media giant – Zee Entertainment Enterprises Limited (ZEEL) moved the Bombay High Court to restrain the television channels viz ‘Maha Movie’ and ‘Manoranjan TV’ from broadcasting its films namely “Jung” (1996) starring eminent film stars – Mithun Chakraborthy, Ajay Devgan, Aditya Pancholi and others and “Kartavya” (1979) starring eminent film stars – Dharmendra, Rekha, Aruna Irani and others, without obtaining license from ZEEL for the same.

To start with, this notable judgment delivered by Justice KR Shriram of Bombay High Court sets the ball rolling by first and foremost pointing out in para 1 that, “The present action is filed by plaintiff claiming infringement of plaintiff’s copyright in two cinematograph films “Jung” and “Kartavya” by defendants who are broadcasting the movies on their respective television channels without any permission from plaintiff.”

To be sure, it is then stated in para 2 that, “The papers and proceedings in the present matter have been served by plaintiff upon defendant nos. 1 and 2. Plaintiff has e-filed affidavit of service dated 13th July 2020 in respect thereof. Further, the intimation of listing of matter on 16th July 2020, the link of today’s hearing and the causelist has been served by plaintiff upon defendant nos. 1 and 2. Plaintiff has e-filed affidavit of service dated 16th July 2020 in respect thereof.

To say the least, para 3 then goes on to say: “It is stated that plaintiff company is engaged in the media and entertainment business inter alia of procurement, development, distribution and dissemination, broadcast/re-broadcasting of music, entertainment television programs, including cinematograph feature films, serials, talents hunts, reality shows through satellite, terrestrial and cable channels, through Direct to Home (DTH) using existing and emerging technologies and distribution platforms and is the owner/operator of several leading Indian television channels such as “Zee TV”, “Zee Cinema”, “Zee Marathi” and “Zee Talkies”.”

While elaborating in detail, para 4 then states: “It is stated that the Suit Films, i.e. “Kartavya” and “Jung”, were released in the Indian cinemas in the years 1979 and 1996, respectively. Copies of Censor Certificates issued by the Central Board of Film Certification in respect of the Suit Films are at Exhibits A1 to A2 to the Plaint. By and under a Film Assignment Agreement executed between Soham Rockstar Entertainment and plaintiff, plaintiff acquired exclusive liner rights on demand rights, local cable distribution rights, catch up TV rights, syndication rights, editing rights, promotion rights, dubbing rights, subtitling rights, doordarshan rights, home video rights, subtitling rights in all languages of the world including Indian languages, and non-exclusive performance rights, merchandising rights, dubbing rights and clip rights in a total of sixty four films, including the Suit Films “Jung” and “Kartavya”, for a term of 10 years commencing from 19th July 2017 in respect of linear rights, home video rights, local cable distribution rights, subtitling and dubbing rights for “Jung”; 1st October 2016 in respect of on demand rights for “Jung” and “Kartavya”; 15th September 2016 in respect of home video rights and local cable distribution rights for “Kartavya”, for the entire world, including India and overseas territories. Plaintiff has annexed all the agreements to the Plaint showing how the rights in the said two films have been acquired by plaintiff. Copy of the Film Assignment Agreement executed between Soham Rockstar Entertainment and plaintiff is at Exhibit J to the Plaint.  It is stated that plaintiff has the unequivocal, exclusive and absolute rights under the Assignment Agreement to broadcast/publish the Suit Films on television and/or DTH connections. Plaintiff has annexed redacted versions of the agreements to the Plaint, however, during the hearing today, plaintiff has produced the non-redacted versions of the agreements before the Court in a sealed envelope.”

Be it noted, it is then disclosed in para 5 that, “According to plaintiff, in end of June 2020, plaintiff learnt that defendant nos. 1 and 2 were broadcasting the Suit Films on their television channels “Maha Movie” and “Manoranjan TV”, respectively, without any authorization from plaintiff. Upon collecting data from the Broadcast Audience Research Council, plaintiff learnt that Defendant No. 1 has broadcast the movie “Jung” thirty seven times and “Kartavya” thirty two times, and that defendant no. 2 has broadcast the movie “Jung” forty two times and “Kartavya” nine times, on their respective channels. Detailed lists of dates and time slots on which the Suit Films have been telecast on defendant nos. 1 and 2’s television channels are at Exhibits K1 and K2 to the Plaint.”

Most significantly, it is then very rightly held in para 6 that, “Prima facie, the unauthorized broadcast/exploitation of the Suit Films on defendants TV channels is a violation of the copyright vested in plaintiff in respect of the said two Films under the said Assignment Agreement. Plaintiff has made out a prima facie case for the grant of interim injunction. If reliefs as prayed for are not granted, plaintiff will suffer irreparable damage and injury. There are no equities in favour of defendants and the balance of convenience is in favour of plaintiff and against defendants. In the circumstances and in view of the above, plaintiff is pressing for reliefs in terms of prayer clauses – (a), (b) and (e) of the Interim Application, which are hereby granted.”

To put things in perspective, it would be worthwhile now to go through para 7 which stipulates that, “The prayer clauses – (a), (b) and (e) of the Interim Application read as under:

(a)          pending the hearing and final disposal of the present Suit, this Hon’ble Court be pleased to pass a temporary order and injunction restraining defendant nos. 1 and 2, acting by themselves and/or through their servants, agents and/or representatives, from, in any manner exploiting/publishing/broadcasting/communicating to public the Film No. 1 and/or Film No. 2 or any audio or video clip thereof, on any platform and/or any other mode or medium;

(b)         pending the hearing and final disposal of the present Suit that this Hon’ble Court be pleased to pass a temporary order and injunction restraining defendant nos. 1 and 2, acting by themselves and/or through their servants, agents and/or representatives, from, in any manner, creating, alienating and/or transferring any rights in Film No.1 and/or to any third party;

(c)           pending the hearing and final disposal of the present Suit that this Hon’ble Court be pleased to direct defendant nos. 1 and 2, acting by themselves and/or through their servants, agents and/or representatives, by a temporary order and injunction to suspend future broadcasting of the Film No. 1 and Film No. 2 on their respective channels.”

As it turned out, it is then made clear in para 8 that, “Liberty to defendants/recalling this order by giving written notice in advance of at least 5 working days.”

Finally, it is then held in the last para 9 that, “This order will be digitally signed by the Private Secretary of this Court. Associate/Sheristedar of this Court is permitted to forward plaintiff copy of this order by e-mail. All concerned to act on digitally signed copy of this Order.”

In conclusion, all the television channels must pay heed to what the Bombay High Court has held so elegantly, effectively and eloquently! It is in their own best interest to do so! The earlier they understand this, the better it shall be for them! It is only after obtaining licence from those who owe it as we see in this case that films should be broadcasted! No denying it!

Sanjeev Sirohi

Bombay HC Stays Multiple FIR Against Arnab Goswami

                                           In a major landslide victory for the media and for the journalists who are rightly considered as the fourth pillar of democracy apart from the executive, legislative and judiciary, the Bombay High Court in a most recently pronounced judgment titled Arnab Ranjan Goswami Vs State of Maharashtra and others in Criminal Writ Petition LD-VC No. 37/2020 in exercise of its criminal appellate jurisdiction delivered on June 30, 2020 very commendably, very courageously and very convincingly while giving cogent reasons granted interim relief to Arnab Goswami who is a well acclaimed and well respected journalist and is also anchor and Chief Editor of Republic TV by staying the two FIRs filed by Mumbai police against him under Sections 153, 153A, 153B, 295A, 500, 504, 505(2), 506, 120B and 117 of the IPC over alleged communication of the incidents of Palghar lynching. The Bench of Bombay High Court comprising of Justice Ujjal Bhuyan and Justice Riyaz Chagla very rightly observed in this latest, landmark and extremely laudable judgment that, “Prima facie no case was made out against him.” The Bench had reserved the order on the petitions on June 12.

                                 It may be recalled here that earlier even the Supreme Court had very rightly quashed the multiple FIRs filed in various States and had confined the investigation only to the FIR lodged against Arnab Goswami in Mumbai. The Apex Court Bench comprising of Justice DY Chandrachud and Justice MR Shah had also granted him interim protection from arrest and had given Arnab the liberty to move the Bombay High Court with respect to quashing of FIR. Now Bombay High Court too has ensured that full justice is done with a fearless journalist like Arnab Goswami who enjoys an impeccable reputation all over!

                                       Needless to say, it is most heartening to note that a  Division Bench of Bombay High Court did not dither from launching a most scathing attack against victimizing fearless journalists by observing in simple, straight but forceful language in para 67  that, “We cannot have a Damocles sword hanging over the head of journalist while conducting a public debate. India is now a mature democracy. Seventy years into our republic we cannot be seen to be skating on thin ice so much so that mere mention of a place of worship will lead to animosity or hatred amongst religious communities causing upheaval and conflagration on the streets. Subscribing to such a view would stifle all legitimate discussions and debates in the public domain.” This is a big victory not for just one journalist Arnab alone but for the entire fraternity of journalists as a whole but yes, Arnab has to be commended, complimented and congratulated for leading from the front in taking the bull by the horns knowing fully well the dangers that lay ahead!

                                           While on the one hand, senior advocates Harish Salve and Dr Milind Sathe appeared on behalf of the petitioner i.e. Arnab Goswami, we saw how on the other hand senior advocates Kapil Sibal and Raja Thakare appeared for the State. Salve and Dr Sathe submitted that the FIRs were politically motivated with an attempt to muzzle critical voices against the Maharashtra government. Salve rightly argues in defence of petitioner that, “The transcripts of the telecast would have to be read as a whole; in other words, in its entirety. There should be no cherry picking of sentences from here and there and then say that this sentence is communal and therefrom an offence of provoking or inciting communal disharmony is committed.” It is a no-brainer that the very freedom of journalist to do independent journalism was at stake here which makes this case so all important!

                                    While setting the background, it is pointed out in para 3 that, “Petitioner is a journalist. He is the Editor-in-chief of an English television news channel called Republic TV and a Hindi television news channel called Republic Bharat or R. Bharat. Petitioner hosts various news shows on both the channels. He is also the Managing Director of ARG Outlier Media Pvt. Ltd., the company which owns and operates both the channels.”

                                           While elaborating on the facts of the case, it is then stated in para 4 that, “On 16.04.2020 there was a broadcast on Republic TV regarding an incident which took place on 16.04.2020 at Gadchinchale village of Palghar district in the State of Maharashtra. In this unfortunate incident three persons including two Sadhus were brutally lynched and killed by a mob allegedly in the presence of police and forest guard personnel. This incident was widely reported in the print and electronic media including by the news channels of the petitioner. On 21.04.2020 petitioner hosted a debate on R. Bharat regarding the said incident. According to the petitioner, a video recording of the said incident is in the public domain. In the debate, petitioner questioned the alleged tardy investigation into the incident and also the alleged attempt by authorities in the State Government to suppress the gravity of the said incident despite the incident happening in the presence of police personnel. Further, petitioner questioned the response or rather the silence of the Indian National Congress and its President Smt. Sonia Gandhi on the said incident and wondered aloud as to whether it was because the victims were Hindu Sadhus.”

                                     More alarmingly, it is then revealed in para 5 that, “Following the above broadcast, a large number of First Information Reports (FIRs) came to be lodged against the petitioner in various states of the country by activists and supporters of Indian National Congress. According to the petitioner all the FIRs were filed within a short span of time based on identical cause of action and appeared to be part of a well coordinated, widespread, vindictive and malicious campaign launched by the Indian National Congress (for short ‘the Congress’ hereinafter) and by its activists to harass and punish the petitioner for making statements and allegations against the Congress and its members, particularly its present President for their response or rather silence on the above incident. All these FIRs alleged commission of offence by the petitioner under various provisions of the Indian Penal Code, 1860 (‘IPC’ for short), such as, sections 153, 153A, 153B, 295A, 298, 500, 504, 505, 506, 511 and120B. According to the petitioner, a campaign for his arrest was launched in the social media.”

                                        Be it noted, it is then narrated in para 6 that, “The first of the FIRs was lodged before Sadar Police Station, Nagpur by respondent No. 3 who is a Cabinet Minister of Maharashtra and a prominent leader of the Congress party. This FIR was lodged on 22.04.2020 and was registered as FIR No. 238 of 2020.”

                                       What is worse is that petitioner who is a journalist was himself physically attacked as revealed in para 7 which states that, “Petitioner has stated that on 23.04.2020 between 12:30 a.m. and 1:00 a.m. while he and his wife were returning home by car from his news studio at Worli, Mumbai, they were attacked by two persons on a motorcycle. When the assailants were confronted by the security personnel of the petitioner, the two of them had alleged to have disclosed their identity as members of the Congress. In this connection petitioner lodged FIR before the N.M. Joshi Marg Police Station on 23.04.2020 which has been registered as FIR No. 148 of 2020 under sections 341, 504 and 34 IPC.” In addition, what is most despicable is that multiple FIRs were lodged against him in different states! This is nothing but “an abuse of the due process of law”!

                             As it turned out, it is then envisaged in para 19 that, “Dr. Milind Sathe, learned senior counsel for the petitioner submits that petitioner has questioned two FIRs in this proceeding as being an abuse of the process of law and driven by ill motive towards the petitioner to cause harassment and intimidation to him due to political animosity. The first FIR i.e., FIR No. 238 of 2020 was initially registered in the Sadar Police Station, Nagpur and subsequently transferred to N.M. Joshi Marg Police Station, Mumbai on orders of the Supreme Court where it has been re-numbered as FIR No. 164 of 2020. This FIR pertains to a broadcast on R. Bharat on 21.04.2020 which was anchored by the petitioner. It related to an incident of lynching of two Sadhus by a mob in front of police personnel on 16.04.2020 at a place in Palghar district (referred to hereinafter as “the Palghar incident”). The second FIR being FIR No. 137 of 2020 was registered in the Pydhonie Police Station, Mumbai pertained to an incident of a huge crowd gathering in front of the Jama Masjid, Bandra in violation of lockdown norms on 14.04.2020.”

                                 To put things in perspective, it is then observed in para 28 that, “At the outset we may advert to the judgment of the Supreme Court in the case of the petitioner dated 19.05.2020. The core issue before the Supreme Court and which was the basic concern of the Supreme Court was the lodging of multiple FIRs and complaints against the petitioner in various states arising from the same cause of action i.e., the programme which was telecast on R. Bharat on 21.04.2020 relating to the Palghar incident. At the time of passing of the interim order by the Supreme Court on 24.04.2020, one of the principles that was considered was the need to ensure that the criminal process did not assume the character of a vexatious exercise by the institution of multifarious complaints founded on the same cause of action in multiple states.”

                                   While stating the obvious, it is then stated in para 28.1 that, “At the time of hearing, Supreme Court had drawn the attention of learned counsel for the respondents to the fact that the FIRs which were filed in various states by persons professing allegiance to the Congress party prima facie appeared to be reproductions of the same language and content. Responding to this, Mr. Sibal submitted that the Court might as well quash all other FIRs and allow investigation into the FIR which was transferred to the N.M. Joshi Marg Police Station to proceed in accordance with law.” This clearly shows how a well planned conspiracy was hatched against the petitioner who is a well reputed journalist to get him wrangled in many cases!

                                          On the question of second FIR, it is very rightly and aptly pointed out in para 28.2 that, “Supreme Court referred to its decision in T.T. Anthony Vs. State of Kerala, (2001) 6 SCC 181, where it was held that there can be no second FIR when the information concerns the same cognizable offence alleged in the first FIR. It was held that barring situations in which a counter case is filed, a fresh investigation or a second FIR on the basis of the same or connected cognizable offence would constitute an abuse of the statutory power of investigation and may be a fit case for exercise of power either under section 482 Cr.P.C. or Articles 226/227 of the Constitution.”

                                        To be sure, this stands further corroborated by para 28.3 which states that, “Supreme Court referred to its subsequent decisions on the above issue and applied the same to the case of the petitioner who faced multiple FIRs/complaints in diverse jurisdictions arising out of one and the same incident i.e., broadcast by the petitioner on 21.04.2020 in R. Bharat relating to the Palghar incident. On perusal of the FIRs and complaints Supreme Court noted that those were worded in identical terms leaving no manner of doubt that an identity of cause of action formed the allegations levelled against the petitioner on the basis of the programme which was broadcast on 21.04.2020; the language, content, sequencing of paragraphs and their numbering were found to be identical.”

                                            To top it all, the Bench then rightly points out in para 28.4 that, “Supreme Court noted  that petitioner is a media journalist. Exercise of journalistic freedom lie at the core of speech and expression protected by Article 19(1)(a). Airing of views on television shows which the petitioner hosts is in the exercise of his fundamental right to speech and expression under Article 19(1)(a). Supreme Court observed that India’s freedoms will rest safe as long as journalists can speak to power without being chilled by a threat of reprisal. Though exercise of that fundamental right is not absolute, but to allow a journalist to be subjected to multiple complaints and in pursuit of his remedies to traverse multiple states and jurisdictions when faced with successive FIRs and complaints bearing the same foundation would have a stifling effect on the exercise of that freedom. Though the right of a journalist under Article 19(1)(a) is no higher than the right of a citizen to speak and express, we as a society should never forget that one cannot exist without the other. Free citizens cannot exist when the news media is chained to adhere to one position.”

                                As if this was not enough, it is then further held in para 64 which came as a further vindication for the  petitioner that, “On an overall reading of the FIR, statement of the informant and transcript of the broadcast, it would be wrong to say that petitioner had made the statements in the broadcast with a view to defame or insult the feelings of any religious group or community. The tenor of the programme was petitioner trying to find out as to who were the people or which were the forces trying to derail or defeat the lockdown and encouraging violation of social distancing norms. A mention is made by the petitioner of the role played by one Vinay Dubey, a Nationalist Congress Party activist having tweeted calling upon the migrant workers to congregate. Though the petitioner stated as a matter of fact that the crowd had gathered near the Jama Masjid, Bandra, he clarified his statement by saying that if such an incident had taken place outside a temple, he would have said the same thing. In such circumstances, to allege or impute any communal motive to what the petitioner had commented would be a distortion of the narrative. Prima facie, no offence as alleged can be said to have been committed by the petitioner.”

                                          Finally, it is then held in the last para 69 that, “Accordingly and in the light of the above, the following orders are passed:

(1)         This petition is admitted for hearing;

(2)         Since all the parties are represented, issuance of notice stands obviated. However, office of the Attorney General of India be notified as regards challenge to vires of sections 153A and 153B(1) IPC;

(3)         All further proceedings in FIR No. 164 of 2020 before the N.M. Joshi Marg Police Station, Mumbai and FIR No. 137 of 2020 before the Pydhonie Police Station, Mumbai shall remain suspended; and

(4)         Interim order passed on 09.06.2020 to the effect that no coercive steps shall be taken against the petitioner vis-à-vis the above two FIRs shall continue till disposal of this petition.”

                                                    To sum up, this bold, brilliant and blunt judgment of a Division Bench of two Judges of Bombay High Court  has come as a big respite for all those fearless journalists who are repeatedly being targeted on one pretext or the other by political leaders, political workers, mafias and criminals! If Courts will not speak up for such fearless journalists like Arnab Goswami then who else will? No doubt, this most commendable, convincing and courageous decision of Bombay High Court has sent the right message to all such political tribe and their ilk that Courts cannot be allowed to ever become a convenient instrument or a potent weapon to silence such fearless, independent and forward looking journalists like Arnab Goswami by filing multiple FIRs in different States!

Sanjeev Sirohi

Maratha quota: Bombay HC likely to hear petitions on Wednesday

Mumbai: The Bombay High Court is likely to take up for hearing a bunch of petitions on the issue of Maratha reservation in Maharashtra on Wednesday.

Several petitions were filed in 2014 and 2015 after the then Congress-NCP government granted 16 per cent quota in government jobs and education to the Maratha community.

In November 2014, in an interim order, a division bench of the Bombay HC had stayed the then government’s decision.

While some of the petitions opposed the government’s decision, two petitions had sought immediate implementation of the quota.

Vinod Patil, one of the petitioners, mentioned the matter Monday before a division bench headed by Justice BP Dharmadhikari, seeking an urgent hearing.

Justice Dharmadhikari said he will hear the petitions on Wednesday. 

The Maratha community had held protests across the state earlier this year demanding quota in jobs and educational institutions.

On Sunday, the Maharashtra government approved reservation in government jobs and educational institutes for members of the community.

The state’s approval followed the recommendations by the State Backward Class Commission.

While hearing Patil’s petition, the court had, however, in August this year directed the commission to submit a report on the progress in its research on whether the community deserved such reservation.

Patil has now sought that the commission’s recommendations made to the state be submitted before the court.

He has also urged the court to direct the state to implement the quota for the Maratha community in a time-bound manner.

Maratha quota: Bombay HC likely to hear petitions on Wednesday

Mumbai:The Bombay High Court is likely to take up for hearing a bunch of petitions on the issue of Maratha reservation in Maharashtra on Wednesday.

Several petitions were filed in 2014 and 2015 after the then Congress-NCP government granted 16 per cent quota in government jobs and education to the Maratha community.

In November 2014, in an interim order, a division bench of the Bombay HC had stayed the then government’s decision.

While some of the petitions opposed the government’s decision, two petitions had sought immediate implementation of the quota.

Vinod Patil, one of the petitioners, mentioned the matter Monday before a division bench headed by Justice BP Dharmadhikari, seeking an urgent hearing.

Justice Dharmadhikari said he will hear the petitions on Wednesday. 

The Maratha community had held protests across the state earlier this year demanding quota in jobs and educational institutions.

On Sunday, the Maharashtra government approved reservation in government jobs and educational institutes for members of the community.

The state’s approval followed the recommendations by the State Backward Class Commission.

While hearing Patil’s petition, the court had, however, in August this year directed the commission to submit a report on the progress in its research on whether the community deserved such reservation.

Patil has now sought that the commission’s recommendations made to the state be submitted before the court.

He has also urged the court to direct the state t