#A Writ of Mandamus May Be Issued by

[arpov-blog-blog]

Jack Smith Torches Judge Cannon in Late-Night Filing, Could Seek Appeal

Smith is threatening a writ of mandamus over Cannon's latest order.

Brett Meiselas Meidas Touch Network

Special Counsel Jack Smith issued a scorching response to a request made by Judge Aileen Cannon, who demanded that Government and Donald Trump submit a set of hypothetical jury instructions to two completely erroneous premises that lacked a fundamental understanding of the issues at center of the stolen documents case. Smith's response, in no uncertain terms, challenges the legal premises underlying the request, asserting that they are fundamentally flawed and could distort the trial.

The crux of the issue lies in the interpretation of the Presidential Records Act (PRA) and its relevance to the charges faced by Donald Trump. The Government argues that the distinction between "personal" and "Presidential" records under the PRA should not determine whether the former President's possession of highly classified documents is authorized under the Espionage Act. Smith explains that the PRA should play no role in the jury instructions regarding the elements of the Espionage Act.

Importantly, Smith emphasizes the urgency of the Court's decision on this matter. He asserts that if the Court wrongly concludes that the legal premise represents a correct formulation of the law, it must inform the parties well in advance of the trial. This is crucial to allow the Government the opportunity to consider appellate review before jeopardy attaches, laying the groundwork to seek mandamus against Judge Cannon, which could ultimately end in Cannon getting booted from the case.

Smith warns that presenting to the jury a factual determination based on incorrect legal premises could lead to a "high probability of failure of a prosecution." Therefore, the Government insists on the importance of seeking prompt appellate review if necessary.

Smith explains that Trump's invocation of the PRA is not grounded in any decisions he made during his presidency. Instead, it is portrayed as a post hoc justification concocted after leaving the White House. Smith contends that there is no basis in law or fact for this legal presumption and urges the Court to reject Trump's efforts to inject the PRA into the case.

Smith provides a detailed account of Trump's actions following his departure from office, demonstrating a consistent acknowledgment that the documents were presidential records. Even as late as May 2022, Trump's attorney accepted a grand jury subpoena related to the classified documents without contesting their presidential status.

Furthermore, Smith refutes the notion that Trump's alleged designation of the documents as personal, if it ever occurred, would shield him from prosecution under Section 793(e). He argues that authorization to possess classified information is governed by Executive Order 13526, not the PRA, and that Trump's purported designation holds no legal weight in the context of unauthorized possession.

Smith asserts that the proposed jury instructions would lead to confusion and potential miscarriages of justice. By directing the jury to determine the classification of documents under the PRA, the instructions conflate a factual determination with a legal one, thereby muddying the waters of the case.

In response to Judge Cannon's request, Smith provides alternative jury instructions that adhere to the correct legal framework. These instructions clarify that unauthorized possession of classified information is determined by whether an individual holds a security clearance, has a need-to-know basis, and complies with safeguarding regulations outlined in Executive Order 13526. In both hypothetical scenarios, the Special Counsel makes clear that the instructions, as defined by Judge Cannon, would be incorrect. In his conclusion, Smith once again emphasizes that he will be forced to take action should Judge Cannon not reject Trump's erroneous legal premise, which should have never been considered in the first place.

Smith concludes: "If, however, the Court does not reject that erroneous legal premise, it should make that decision clear now, long before jeopardy attaches, to allow the Government the opportunity to seek appellate review. "

[advabhisheksinha]

WRITS AT THE HON’BLE SUPREME COURT OF INDIA

UNDER ARTICLE 32 OF CONSTITUTION OF INDIA

REMEDIES FOR ENFORCEMENT OF RIGHTS CONFERRED BY THIS PART

1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this part is guaranteed.

2) The Supreme Court shall have power to issue directions or orders or writs including within the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari whichever may be appropriate, for the enforcement of any of the rights conferred by this part.

3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) & (2), Parliament may by Law empower any other Court to exercise within local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under Clause (2).

4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.

Transfer Petition, Special Leave Petition, Supreme Court Lawyer, Advocate, Delhi, AOR, Delhi High Court, Bombay High Court, Advocate for Supreme Court Case, SLP, Bail, Supreme Court Lawyer Bombay, WRIT, Constitutional Law

[paolawdiary]

EXECUTIVE ORDER NO. 209

THE FAMILY CODE OF THE PHILIPPINES

TITLE II

LEGAL SEPARATION

ARTICLE 58. An action for legal separation shall in no case be tried before six months shall have elapsed since the filing of the petition. (103)

EXPLANATION:

The basic purpose of the law in suspending the trial of an action for legal separation for six (6) months is to give place for a possible reconciliation. If there's a reconciliation before the trial, the court can dismiss the action for legal separation. Also, even if there's already a judgement, the court can still set aside the degree of the legal separation. In the case of Araneta vs. Conception, the court emphasized the suspension period as a cooling-off period. The case revolves around the issue on whether or not the rule for six (6) months suspension period for the hearing of an action for legal separation, preclude the court to try and act on the Omnibus petition for the support and custody of the children.

CASE DIGEST: ARANETA VS. CONCEPTION I G.R. No. L-9667 |  July 31, 1956 | LABRADOR, J.

FACTS:

Luis Araneta (petitioner) filed for legal separation from his wife Emma Benitez Araneta on the ground of adultery. Emma filed an omnibus petition to secure custody of their children and a monthly support of. The respondent judge Concepcion granted the omnibus petition. He refused to reconsider so Luis Araneta filed with the court a petition for certiorari and mandamus to compel the respondent judge to both parties to submit evidence before deciding for the omnibus petition. The court granted a writ of preliminary injunction against the order of the judge. The Respondent Judge’s reason for refusal for the request for the presentation of evidence to be allowed before deciding was because it is the prohibition contained in Art. 103 of the Civil Code. This reads: “An action for legal separation shall in no case be tried before six months shall have elapsed since the filing of the petition.” The respondent Judge interpreted the provision by saying that every single step it should take within the period of six months above the stated should be taken toward reconciling the parties. Admitting evidence now will make the reconciliation difficult if not impossible. The children must be given custody for him or her who by family custom or tradition is the custodian of the children. The court should ignore the defendant had committed any act of adultery or the plaintiff, any act of cruelty to his wife. The status quo of the family must be restored as much as possible. In a typical Filipino family, it’s the wife/mother who keeps the children in her company or custody.

ISSUE:

Whether or not the presentation of evidence as petitioned by the husband is needed in determining the custody of the children.

RULING:

YES, The six month period fixed in Art. 103 of the Civil Code is evidently intended as a cooling off period to make possible reconciliation between the spouses. However, it does not have the effect of overriding other provisions such as the determination of the custody of the children and alimony, and support according to the circumstances. The law expressly enjoins that these should be determined by the court according to the circumstances. If these are ignored, rank in justice may be caused. The determination of the custody of the children should be given and effect and force provided it does not go to the extent of violating the policy of the cooling off period which means that the evidence will not be the cause of the separation.

Source:

Family Code of the Philippines (2022); Judge Ed Vincent S. Albano , Ed Vincent A. Albano, Jr.

https://www.officialgazette.gov.ph/1987/07/06/executive-order-no-209-s-1987/

https://chanrobles.com/cralaw/1956julydecisions.php?id=269

Blaze

0 notes

[seemabhatnagar]

"Logical Alignment: Interpreting Statutes with Legislative Intent"

Smt. Nikita v. State of UP & 3 Others

Writ Petition 1348/2024

Before Allahabad High Court

The Writ Petition was disposed of on January 30, 2024 by Hon’ble Mr. Justice Kshitij Shailendra J with liberty to the petitioners to file a fresh petition after ensuring compliance of Sections 8 and 9 of the UP Prohibition of Unlawful Conversion of Religion Act, 2021.

Prayer

The petitioners have prayed for a writ of mandamus commanding the respondents to provide adequate security to petitioners and further restraining the respondents from causing any interference in peaceful living of petitioners as husband and wife.

Submission of the Counsel for the State

First Petitioner belonged to Muslim religion and the Second Petitioner belongs to Hindu religion and in view of the provisions of the UP Prohibition of Unlawful Conversion of Religion Act, 2021, unless compliance of the provisions of Sections 8 and 9 is made by the parties belonging to different religions, no sanctity/validity can be attached to such marriage.

Submission of the Counsel of the Petitioner

A conversion certificate was issued in the year 2017 whereas the UP Prohibition of Unlawful Conversion of Religion Act has come into existence in 2021, therefore, the provisions of Section 8 and 9 of the Act, won’t be applicable.

Legal Provisions

Section 8 mandates a 60-day prior declaration to authorities by anyone seeking to convert their religion, ensuring voluntary consent. Convertors must give one-month notice for ceremonies, and the District Magistrate investigates intentions. Violations result in illegal conversion, punishable by imprisonment and fines.

Section 9 requires that after converting, individuals must submit a declaration within 60 days to the District Magistrate, providing personal details and conversion specifics. The Magistrate displays the declaration, and the convert verifies their identity within 21 days. Non-compliance deems the conversion illegal and void.

Observation of the Court

As per the writ petition, Conversion certificate was issued by Arya Samaj Mandir.

The alleged marriage between the petitioners has been performed on 2.1.2024 by which date the aforesaid Act of 2021 had come into existence.

Therefore, before the date of marriage, the petitioners should have complied with the provisions of the Act, in case, they wanted to attach sanctity/legality to the conversion, which is now controlled and governed by the enactment passed by UP Legislature.

The scheme of the Act envisages that if conversion is done in relation to marriage of the persons belonging to different religions, irrespective of any past event, which might or might not attach sanctity to conversion, in case a marriage is solemnized after the Act of 2021 has come into force, i.e., after 27.11.2020 as per Section 1 (3) of the Act, the parties have to ensure compliance of Sections 8 and 9 of the Act and, in such event, conversion, if any, done in the past, may be a relevant fact during the course of inquiry conducted by the District Magistrate as per Sections 8 and 9 of the Act subject to satisfaction of the District Magistrate but it, in itself, cannot be a substantive proof of a valid conversion so as to attach sanctity to a marriage performed after the Act, 2021 has come into force.

Allahabad High Court in this regard referred to various Judgement passed by Apex Court where the Apex Court stated about the application of the intent of the statute while passing an order,……ascertainment of legislative intent is a basic rule of statutory construction and that a rule of construction should be preferred which advances the purpose and object of a legislation and that though a construction, according to plain language, should ordinarily be adopted, such a construction should not be adopted where it leads to anomalies, injustices, or absurdities.

Therefore, the concerned party to a proposed inter-faith/inter-religion marriage has to comply with the provisions of the Act.

Hence, the submission of the counsel for the petitioners that since Act has come into force in 2020-21, but conversion was done in 2017 at Arya Samaj Mandir and, therefore, no fresh conversion is required, is not acceptable and is hereby discarded.

Seema Bhatnagar

[lawkeyjim]

Tañada vs Tuvera | G.R. No. L-63915 April 24, 1985

Facts: Petitioner Tañada is asking the court to issue a writ of mandamus, a legal order, to compel certain government officials (respondents) to publish various presidential decrees, letters of instructions, general orders, proclamations, executive orders, letters of implementation, and administrative orders in the Official Gazette.

Issue: The main question before the court is whether the publication in the Official Gazette is an absolute requirement for these laws to become effective.

Respondents' Argument: The government officials argue that the publication in the Official Gazette is not necessary if the laws themselves specify when they will become effective. In other words, they believe that if a law has its own provision stating when it takes effect, then publication is not crucial for its validity.

Ruling: The court rules that publication is indeed required. The court refers to Article 2 of the Civil Code, emphasizing that the purpose of this article is to ensure that the public is adequately informed about the laws that regulate their actions and conduct as citizens. Without proper notice and publication, the principle "ignorantia legis non excusat" (ignorance of the law excuses no one) cannot be applied fairly.

The court states that the publication of all presidential issuances "of a public nature" or "of general applicability" is mandated by law. This includes decrees that impose fines, forfeitures, penalties, or any burden on the people, such as tax and revenue measures. The court emphasizes that the publication of such laws is a requirement of due process – a legal principle ensuring that citizens are informed of the laws that may affect them before being held accountable.

However, the court clarifies that presidential issuances that apply only to specific individuals or groups, like administrative and executive orders, may not need to be published, assuming that they have been effectively communicated to those concerned.

In summary, the court rules in favor of the petitioner, stating that the publication of laws in the Official Gazette is necessary for the laws to be valid and effective, especially when they affect the general public. This requirement is seen as essential for the principles of justice and due process.

[top-property-lawyers]

What To Do When False Fir Has Been  Filed Against Me ?

First Information Report also known as FIR for short, is the first document which is prepared in a criminal proceeding as mentioned under Section 154(1) of the Code of Criminal Procedure, 1973 . FIR is a written document about the commission of a cognizable offense which has been provided to the police by the victim or any other person who has information about the commission of a cognizable offense. FIR could only be lodged in case of cognizable offenses which have been defined under Section 2(c) of the CrPC and the list of such offenses has been laid down under Schedule I of the CrPC.

Remedies against a false FIR.

The victim has been given certain remedies so that they can pursue the proper legal action against the person who filed a fraudulent police report.

Remedy before an arrest is made:-The victim against whom false FIR has been filed can apply for bail before the Sessions Court or  High Court as per Section 438 of the Code of Criminal Procedure, 1973, before the arrest of the victim has been made in such case. The above mentioned section of the CrPC provides for an ‘Anticipatory Bail’ and the objective behind such provision is that no person would be humiliated or harassed so as to satisfy any kind of personal vendetta or grudge of the complainant. Certain factors are to be taken into consideration by the Court when deciding if Anticipatory bail should be granted or not and appropriate conditions could also be imposed on the victim by the Court in case such bail is granted.

However, the above section cannot be invoked after the victim has been arrested and in  such a situation, to be released on bail, the victim would have to seek remedy under Se tion 437 of Section 439 of the CrPC.

Remedy after an arrest is made or after the charge sheet has been file before the court:-After obtaining Anticipatory Bail or after being arrested and filing of the charge sheet by the police, the next step for the victim is to approach the High Court by filing an application for quashing false FIR or to file the writ of prohibition or the writ of mandamus.

The victim of a false FIR can apply to the High Court as per Section 482 of the Code of Criminal Procedure, 1973 to get  the false FIR lodged against him/her quashed.

Stages when the application under Section 482 could be filed

Before the charge sheet has been filed: The High Court of the respective state can quash an FIR in case an application for quashing the same has been filed by the victim under Section 482 of the CrPC before it. When the false FIR is against the principle of natural justice and hence causing a grave miscarriage of justice to the victim, the High Court can quash it and also has the power to reprimand the police officer or issue certain directions to such officer.

After the charge sheet has been filed:-After the police have filed the charge sheet on the basis of a false FIR and before the commencement of the trial, the victim as provided under Section 227 of the CrPC can file a ‘Discharge Application’ in order to get discharged from the offense the victim has been charged which are based on the frivolous FIR lodged against him.

Following the start of the trial or while it is still pending:-When the Sessions Court denies the victim's request for a discharge made pursuant to Section 227 of the CrPC, charges are laid, and the trial is underway, an application for the accused's acquittal may be made pursuant to Section 232 of the CrPC.

Grounds on which a victim of the false FIR can approach the High Court for quashing it.

The following grounds could be used by the victim based on which, he/she can go to the High Court under Section 482 of the CrPC, for quashing the false FIR:

The acts or omission based on which the First Information Report (FIR) has been filed do not constitute an offense

The offense for which the FIR has been lodged, never took place.

Baseless allegations without any reasonable ground to prove an offense against the victim are present in the FIR

Conclusion

Getting justice and to save oneself from a false FIR is an extremely important step for a person falsely accused in the criminal justice system. Upon arrest or even anticipation of an arrest, the first step for any person would be to hire the services of an experienced lawyer, who can help advise and guide the accused with the process of obtaining a bail and any further actions required to be taken.

Lead India offers you a team of experienced lawyers who have been successfully handling cases related to civil as well as criminal matters. Thus, if you wish to talk to a lawyer or seek free legal advice, or even for a matter related to civil law, if you wish to talk to Property Lawyers In Delhi, Property Lawyers In Kolkata, Property Lawyers In Bangalore or in your city, you may contact us.

SOURCE:-

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[amberawellmann]

What is a writ of mandamus?

A writ of mandamus is an extraordinary legal remedy available through the court system which orders a public body or governmental agency to fulfill a mandatory duty or correct an abuse of discretion. In the United States, state constitutions and statutes sometimes grant citizens the right to petition for a writ of mandamus. At its core, a writ of mandamus is a command from a court that compels a government body or official to obey the law. The order is issued by a higher court to an inferior tribunal, corporation, or public authority ordering it to perform certain duties. Generally, the writ of mandamus may be used to ensure that an agency or official follows the law and carries out their official duties properly. In the United States, petitions for writ of mandamus can be filed by individuals or entities in state or federal courts. Generally, courts require that the petitioner show that the agency or individual has failed to perform a mandatory and nondiscretionary duty. Additionally, the petitioner must have no other adequate remedy at law and have a legally enforceable right to the order being sought. In some cases, courts may grant broad, general writs of mandamus that compel a government to act on a policy matter. A court may also grant a more specific writ to correct a particular instance of abuse of discretion. In such cases, the court’s order may direct the official or entity to take a prescribed action or to refrain from doing a certain act. A writ of mandamus is a powerful legal tool and a last resort for those seeking to enforce their rights or compel an official or governmental body to properly perform its duties. As with any legal action, petitioners should explore all other available remedies and consult a qualified attorney prior to filing for a writ of mandamus. Read the full article

[orfealfonso]

FAMILY CODE OF THE PHILIPPINES

TITLE II: LEGAL SEPARATION

ARTICLE 55 and 58

Support pendente lite can be availed of in an action for legal separation and is granted at the discretion of the judge. If tge petitioner finds the amount of support pendente lite ordered as too onerous, he can always file a motion to modify or reduce the same.

Araneta vs. Conception

G.R. No. L-9667

July 31, 1956

Facts:

Luis Araneta filed for legal separation from his wife Emma Benitez on the ground of adultery.Emma filed an omnibus petition to secure custody of their children and a monthly support of 5,000. The respondent Judge Concepcion granted the omnibus petition.He refuses to reconsider, so Luis Araneta filed with the court a petition for certiorari and a mandamus to compel the respondent Judge to require both parties to submit evidence before deciding for the omnibus petition.

The court granted a writ for preliminary injunction against the order of the judge. Respondent Judge reason for refusal for the presentation of evidence to be allowed before deciding was because it is the prohibition contained in the article 103 of the Civil Code.This reads" An action for legal separation shall in no case be tried before six months shall have elapsed since the filing of petition ",. The respondent judge interpreted the provision by saying that every step it should take within the period of six months above stated should be taken toward reconciling the parties. Admitting evidence now will make reconcilliation difficult if not possible . The children must be given for custody to him or her who by family custom and tradition is tbe custodian of tge children. Tge court should ignore that defendant had committed any act of adultery or the plaintiff, any act of cruelty to his wife. The status quo of tge family must be restored as much as possible.In a typical Filipino family, its tbe mother/wife who keeps children in her company and custody.

Issue:

Whether or not presentation of evidence as petitioned by the husband is needed in determining tge custody of the children

Held:

Yes, the writ prayed is hereby issued and the respondent judge or whosoever takes his place is ordered to proceed on the question of custody and support pendente lite in accordance with his opinion.

The period of six months fix therein (article 103 Civil Code) is evidently intended as a cooling off period to make possible reconciliation between the spouses however, it does not have the effect of overriding the other provision such as the determination of the custody of the children and alimony and support pendente life according to the circumstances. If these are ignored or the court close their eyes to actual facts, ranked in justice may be caused. The determination of the custody and alimony should be given effect and forced provided it does not go to the extent of violating the policy of the cooling off period. That is, evidence not affecting the cause of separation, like the actual custody of the children, the means of conducive to their welfare and convenience during the pendency of the case, these should be allowed that the court determined which is best for their custody.

[ledxlaw]

HOW TO FILE A WRIT PETITION IN INDIAN COURTS?

In Indian Constitution, fundamental rights are given to the citizens of the country. Fundamental rights are the most crucial for the development of the people of India. Part III of the Indian Constitution includes the fundamental rights of people like the right to speech, right to equality, right to freedom etc. Solely stating these rights in the constitution and giving these rights to the people is not enough. These rights should be protected also. For the protection of these fundamental rights, Article 32 and Article 226 of the Indian Constitution give remedies. Article 32 and Article 226 of the Indian Constitution give the right to approach the Supreme Court and High Court. This right can be practised by anyone whose rights are violated. There are many writs provided under the Indian Constitution which protect the fundamental rights of the citizens of the country. Many online law certification courses are available on the Writs provided under the Constitution of India which protects the rights of people. 

What is a Writ? 

Writ refers to an order which is issued by the authority. The writ is understood as a formal written order which is issued by the court having the authority to do so. 

A writ petition is an application which is to be filed before a court asking for the issue of the writ in a case where the fundamental rights of citizens are violated. 

Types of Writs - 

In Indian Constitution, Article 32 and Article 226 deal with the issue of writs. There are 5 types of writ provided under the Constitution which have different meanings and applications. These 5 types of the writ are: 

Habeas Corpus: This writ means ‘you may have the body of’. This writ is applied in those cases where the person is detained illegally. The court uses this writ and directs the person to court for checking the legality of his custody. This writ can be issued by the courts in the following circumstances: 

When a person is taken into custody but is not presented in court within 24 hours of his arrest. 

When a person is detained even when the person has not breached the law. 

When a person is arrested with a deceitful purpose. 

Mandamus: This refers to ‘we command’. It is a command which is given to a person who is working as a public servant and who has not fulfilled his duty. This command is given by the courts. This writ can be issued against a person, corporation, an inferior court or any government body for the same cause i.e. when they fail to perform their duties. 

Certiorari: The term certiorari refers to ‘certified to be informed.’ This writ is issued by the superior court to an inferior court for passing the pending case to a higher court or giving the judgment soon. In 1991, the apex court which is the supreme court ruled that this writ can be issued against authorities also if their judgment is violating the rights of the people. This writ can be issued in the following cases:

There should be a court that has the authority or right to act judicially. 

If the judgment of a lower court violates the law. 

If the judgement given by an inferior court contains some error. 

Prohibition: The Writ of prohibition means to hinder or to discontinue and it is popularly recognized as ‘Stay Order’. This writ is issued when a lower court or a body tries to disobey the limits or powers vested in it. The writ of prohibition is given by any High Court or Supreme Court to any lower court, or semi-legal body prohibiting the latter from continuing the procedures in a specific case, where it has no jurisdiction to try.  It cannot be imposed against administrative organisations, statutory authorities, or private people or enterprises. It is solely applicable to legal and semi-legal bodies. 

Quo Warranto: This term Quo warranto means ‘by what authority or by what warrant’. It is issued by the court for the purpose of knowing the legitimacy or under what power the person is holding an office. It helps to prevent the unlawful holding of office by any individual. This writ cannot be issued under the following situations: 

To remove any minister from his authority.

It cannot be issued against the chief minister for non-performance of his duties. 

In the case of a ministerial office or private office. 

How to File a Writ Petition?

For filing a writ petition in any of the courts, a proper procedure should be followed. Firstly, the party who needs to file this writ needs to approach an organisation with identity proof, residential proof and all the other necessary documents and proofs. Then the advocate will draft a petition which will include all the details and facts of the case about how the rights were violated. After this, the draft is sent to the court and the person gets a date for the hearing on which courts accept the petition and send the notice to the other party. Then a date is given on which both the parties should compulsorily be present in court. The judge hears both sides of the case and then passes a judgement. This procedure should be followed to file a writ petition. Various Online law certification courses are there by which experts give the knowledge about all these things and law aspirants could learn better. 

Conclusion -   Many rights are provided to the citizens under Indian Constitution but the most important rights are fundamental rights which are provided under Article 19 of the Indian Constitution like the right to equality, right to freedom, right to speech etc. These rights are so crucial for the people of India and as these rights are available so their violation is also possible. So to protect the fundamental rights of people writs are there in Article 32 and Article 226. There are 5 types of writs in our constitution which can be filed in the High Court or Supreme Court for the violation of the Fundamental Rights of the people. Various Online legal courses are being provided nowadays which help law students to understand the concept of writs and the process of how these writs are filed in the courts.

[fidelandrada]

Marbury v. Madison, 1803

The Supreme Court’s Power of Judicial Review 

By Fidel Andrada

★★★★★★★ Background of the Case ★★★★★★★

The election of 1800 transferred power in the federal government from the Federalist Party to the Republican Party. In the closing days of President John Adams’s administration, the Federalists created many new government offices, appointing Federalists to fill them. One of the last-minute or “midnight” appointments was that of William Marbury. Marbury was named a justice of the peace for the District of Columbia. President Adams had signed the papers, but his secretary of state, John Marshall, somehow neglected to deliver the papers necessary to finalize the appointment. 

The new president, Thomas Jefferson, was angry at the defeated Federalists’ attempt to “keep a dead clutch on the patronage” and ordered his new secretary of state, James Madison, not to deliver Marbury’s commission papers. Marbury took his case to the Supreme Court, of which John Marshall was now the Chief Justice, for a writ of mandamus—an order from a court that some action be performed—commanding Madison to deliver the commission papers in accordance with the Judiciary Act of 1789.

★★★★★★★ Constitutional Issue ★★★★★★★★

Article III of the Constitution sets up the Supreme Court as the head of the federal judicial system. Historians believe that the Founders meant the Court to have the power of judicial review, that is, the power to review the constitutionality of acts of Congress and to invalidate those that it determines to be unconstitutional. The Constitution, however, does not specifically give the Court this right. 

Chief Justice John Marshall, as a Federalist, believed strongly that the Supreme Court should have the power of judicial review. When the Marbury case presented the perfect opportunity to clearly establish that power, Marshall laid out several points which the Court believed supported the right of judicial review. At the time, the decision was viewed as a curtailment of the power of the president, but people today recognize that the case established, once and for all, the importance of the Supreme Court in American government.

★★★★★★  The Supreme Court’s Decision ★★★★★★

Justice Marshall reviewed the case on the basis of three questions: Did Marbury have a right to the commission? If so, was he entitled to some remedy under United States law? Was that remedy a writ from the Supreme Court? Marshall decided the first question by holding that an appointment is effective once a commission has been signed and the U.S. seal affixed, as Marbury’s commission had been. Therefore, Marbury had been legally appointed, and Madison’s refusal to deliver the commission violated Marbury’s right to the appointment. In response to the second question, Marshall held that Marbury was entitled to some remedy under United States law. The final question examined whether the Court had the power to issue the writ. Marshall explained that the right to issue writs like the one Marbury was requesting had been granted the Court by the Judiciary Act of 1789. This law, however, was unconstitutional and void because the Constitution did not grant Congress the right to make such a law. In his written opinion, Marshall defended the right of the Court to declare a law unconstitutional: “It is emphatically the province and duty of the judicial department to say what the law is . . . . If two laws conflict with each other, the courts must decide on the operation of each.” The Supreme Court thus became the final judge of constitutionality, thus establishing the principle of judicial review. At the time, observers were much more interested in the practical result of the ruling— that the Court could not issue the writ, and could not, therefore, force the appointment of Marbury. Congress could not expand the Court’s original jurisdiction, and the Constitution does not give the Court the authority to issue a writ. They paid much less attention to the long-term implications of the decision. Here is how a constitutional scholar evaluates the Marbury decision: “Over the passage of time [the] Marbury [decision] came to stand for the monumental principle, so distinctive and dominant a feature of our constitutional system, that the Court may bind the coordinate branches of the national government to its rulings on what is the supreme law of the land. That principle stands out from Marbury like the grin on a Cheshire cat; all else, which preoccupied national attention in 1803, disappeared in our constitutional law.” Not until fifty years after rendering the Marbury decision did the Court again declare a law unconstitutional, but by then the idea of judicial review had become a time-honored principle.

[feelingbluepolitics]

"A federal appeals court panel appeared inclined on Friday to permit a trial judge to complete his review of the Justice Department’s attempt to drop a criminal case against [t]rump’s former national security adviser Michael T. Flynn, as all three judges asked skeptical questions about a request that they intervene and order the case dismissed.

..."Rather than immediately granting the government’s request, the federal judge overseeing the matter, Judge Emmet G. Sullivan, began a review of its legitimacy. He appointed John Gleeson, a former mafia prosecutor and retired federal judge, to argue against it and set arguments on the matter for July 16.

"If the appeals court panel permits that process to play out, the Justice Department will have to respond to a scathing brief Mr. Gleeson submitted this week to Judge Sullivan that portrayed Mr. Barr’s decision as a 'gross abuse' of power. The move undermined the rule of law by giving special favor to a presidential ally, offering a dubious rationale as a 'pretext,' Mr. Gleeson wrote.

"Last month, on the same day that Judge Sullivan appointed Mr. Gleeson to critique the Justice Department’s new position about the case, Mr. Flynn’s defense lawyer, Sidney Powell, asked the Court of Appeals for the District of Columbia Circuit to issue a so-called writ of mandamus that would order Judge Sullivan to immediately end the case.

"But Beth Wilkinson, a lawyer representing Judge Sullivan, told the appeals court that short-circuiting the trial court’s review of the motion would be premature. And on Friday, all three judges asked questions that suggested they may agree.

"Judge Robert L. Wilkins, a 2014 appointee of President Barack Obama, stressed that the federal rule of criminal procedure under which the Justice Department asked Judge Sullivan to dismiss the case says prosecutors may make such a request 'with leave of the court,' meaning the judge’s approval. He asked how those words could mean anything if judges had to rubber-stamp requests without review.

"Judge Karen L. Henderson, a 1990 appointee of President George Bush, repeatedly said Judge Sullivan might disagree with Mr. Gleeson’s view and dismiss the case. She suggested that 'regular order' would be to let that process play out, noting that Ms. Powell and the Justice Department could come back to the appeals court if Judge Sullivan decided instead to sentence Mr. Flynn.

"And Judge Neomi Rao, a 2019 appointee of [t]rump [and a freakishly conservative radical judicial activist so far], pointed out that one of Ms. Powell’s arguments conflicted with Supreme Court precedent. She also asked a Justice Department lawyer whether he could come up with a more concrete reason for why letting Judge Sullivan’s review play out would harm the executive branch — noting that mandamus orders are supposed to be extraordinary and abstract notions of harms are most likely insufficient.

"The skepticism of Judges Henderson and Rao was particularly notable because both have been more willing than most colleagues to interpret the law in ways more favorable to the [t]rump administration in other politically charged cases like fights over congressional access to information the executive branch wants to keep secret.

"Their random assignment to the panel had seemed to increase the possibility that Mr. Flynn might prevail even though many legal experts agreed that Ms. Powell’s request for immediate intervention by the appeals court at this stage was questionable. But all three judges on Friday seemed to share the view that Judge Sullivan had the power to hold a hearing.

"If so, that will be bad news for the Justice Department, argued the deputy solicitor general, Jeffrey Wall. He called Mr. Gleeson’s brief attacking Mr. Barr’s decision to end the case a 'polemic,' but said it would harm the executive branch to have to defend itself against it.

"The department is likely to have to provide information about its internal deliberations — including why no career prosecutor signed the motion to dismiss the charge against Mr. Flynn — in the spectacle of a 'politicized' atmosphere.

..."[t]rump and his allies have made the case against Mr. Flynn a political cause by portraying him as a victim of F.B.I. and prosecutorial misconduct.

"The attacks are part of the larger effort to discredit the investigation into whether [t]rump campaign associates coordinated activities with the Russian government during its covert operation in 2016 to tilt the election in [t]rump’s favor. [t]rump had said he was considering pardoning his former aide before Mr. Barr’s intervention.

"Mr. Barr’s handling of legal matters related to the Russia investigation has come under repeated judicial scrutiny. In March, Judge Reggie B. Walton, also of the District of Columbia, called into question his credibility on the topic in a ruling about a Freedom of Information Act case seeking a less censored version of the report by the special counsel, Robert S. Mueller III.

"Judge Walton said Mr. Barr’s description of Mr. Mueller’s findings and conclusions before he made the report public in redacted form had been 'distorted' and 'misleading,' suggesting the attorney general had sought to torque public understanding of it in a way that favored [t]rump.

"Also on Friday, the Justice Department told Judge Walton that it was reprocessing the Mueller report in light of the conclusion of the criminal trial of Roger J. Stone Jr., [t]rump’s longtime friend and informal adviser, and might make public a version of the report revealing previously concealed references to evidence about Mr. Stone by June 19."

The criminal syndicate of trump and Barr are finding it hard to re-write reality and truth even after McConnell has stacked the courts. At least, in this small instance, so far.

[legalfirmindia]

WRIT OF MANDAMUS

WRIT OF MANDAMUS: Best Lawyers for Writ of Mandamus filing in Chennai Tamil Nadu India. Choose Top Advocates for Legal Consultation and Guidance to understand and process the case. Advocate Saravvanan Rajendran Law Chamber [askadvocates.com]

Best Lawyers for Writ of Mandamus

Find and identify the Best Lawyers for Writ of Mandamus filing in Chennai Tamil Nadu India. Choose Top Advocates for Legal Consultation and Guidance to understand and process the case. Advocate Saravvanan Rajendran Law Chamber [askadvocates.com] is one of the Best Law Firm for Writ of Mandamus.

Right writs in the custom-based law

Introduction: A writ of…

[science-criticaltheory]

The Scourge of Military Commissions by  David K. Shipler

pingnews.com/flickr

Of all the self-inflicted wounds by the United States since 9/11, the flawed military commissions set up to try suspected foreign terrorists rank high on the list. At Guantanamo, the commissions have been bogged down in a swamp of dubious ethical, legal, and procedural practices. Their constitutionality has been challenged, their partial secrecy denounced.

Some of their military judges have demonstrated bias, and one was reprimanded in April by the powerful Court of Appeals for the D.C. Circuit, which vacated all his orders back to Nov. 19, 2015, the date he initiated a conflict of interest by applying to the Justice Department to be an immigration judge. All rulings on his orders by the Court of Military Commission Review were also set aside, wiping the slate almost clean of pretrial decisions in the case, now requiring re-argument on many of the issues. It was a telling illustration of the mess that’s been created.

Without the military commissions, it’s a good bet that the most prominent prisoners at Guantanamo would have been executed years ago, or at least be sitting on death row waiting for the needle. They would have been tried in civilian federal courts, which Republicans have blocked, although the courts are the jewel in the crown of the American judicial system. If juries had found them guilty, it’s hard to imagine anything but the death penalty. Instead, the alleged organizers of the 9/11 attacks and the 2000 bombing of the USS Cole in Yemen have been in U.S. custody for more than 15 years, at taxpayers’ expense, waiting for trial by military commissions that are so ill-conceived as to be vulnerable to obstruction by prosecutors and multiple motions by defense attorneys seeking to guard their clients’ rights.

Among five suspects in the 9/11 plot is the alleged mastermind, Khalid Sheikh Mohammed. Last April’s appeals-court ruling involved Abd al Rahim Al-Nashiri, charged with orchestrating the Cole bombing. Both men were tortured by the CIA in “black sites” before being transferred to Guantanamo.

Al-Nashiri was granted a Writ of Mandamus, which he sought after his lawyers learned that the former judge in his case, Air Force Colonel Vance Spath, had been secretly promoting himself for a position with the Justice Department’s Executive Office for Immigration Review. He had even cited his role in the Al-Nashiri case as a credential, and had submitted one of his pretrial orders as a writing sample. (Immigration judges are employees of the Justice Department, not part of the independent judiciary. And while the military commissions are run by the Defense Department, the Justice Department is involved in rule-making and appeals; a Justice Department lawyer played a major role in the team prosecuting Al-Nashiri.)

The decision of the three-judge panel was unanimous. Written by Judge David Tatel, the opinion  stopped short of citing any evidence of actual bias in Spath’s orders—many of which were adverse to the defendant—but it noted that “jurists must avoid even the appearance of partiality. Judge Spath’s conduct falls squarely on the impermissible side of the line.” The opinion continued: “It is beyond question that judges may not adjudicate cases involving their prospective employers. The risk, of course, is that an unscrupulous judge may be tempted to use favorable judicial decisions to improve his employment prospects—to get an application noticed, to secure an interview, and ultimately to receive an offer.”

To a layman’s eye, some of Spath’s rulings seemed to fit that pattern. One instance came after defense attorneys were warned by their officer in charge, Marine Brig. Gen. John Baker, “that he had lost confidence in the confidentiality of Guantanamo’s meeting spaces,” according to Tatel’s opinion. But Spath adamantly denied that any cause for concern existed that privileged consultations between Al-Nashiri and his lawyers were being monitored. He denied the defense’s motion for discovery, even after lawyers found a hidden microphone, which the government claimed was inoperative.

When the three of Al-Nashiri’s lawyers, who were civilian employees of the Defense Department, concluded that professional ethics required them to withdraw from the case, General Baker granted their request. Spath ordered Baker to rescind his decision. Baker refused, so Spath ordered the general fined $1000 and confined to his quarters for 21 days.

Last September, after retiring from the Air Force, Spath took the oath as an immigration judge, where he is making life-changing decisions for immigrants. His successor on the case, Colonel Shelly Schools, then followed the same route, seeking and accepting an immigration judgeship. When the defense got wind of it, and the government confirmed it, she had to step down as well.

Military involvement in the terrorism cases began when President George W. Bush, ignoring the legislative branch, established tribunals to process Guantanamo detainees and others. For several years, he dodged and weaved in and out of a series of adverse Supreme Court rulings, finally enlisting a too-compliant Congress in 2005 and then in 2006 to establish military tribunals and commissions. Initially they could admit hearsay evidence, the fruits of illegal searches, and confessions coerced under torture.

Then the Military Commissions Act of 2009 cleaned things up a bit but still empowered the executive branch to try a vast array of cases, even inside the United States, involving not U.S. citizens but “alien unprivileged enemy belligerents.”  A president and his attorney general can choose whether to send such defendants to trial before civilian judges and citizen jurors in federal criminal courts, or before panels of military officers in commissions. This is an enormous grant of executive power to evade a court system whose procedures have been seasoned by generations of constitutional precedent. The absence of such extensive precedent for military commissions is one reason for the litigation that is delaying trials.

Under the law now in effect, appeals from the commissions can be heard by the appeals court in D.C., which can even second-guess a guilty verdict by reexamining the evidence. Statements by the accused or witnesses would be inadmissible if made under torture or “cruel, inhuman, or degrading treatment,” but less severe coercion might be allowed during capture or combat if a military judge finds the information “reliable and possessing sufficient probative value.” Because much of the torture remains classified, it is hard for defense lawyers to argue in detail how it was used to extract information that should be ruled inadmissible.

As in civilian courts, the prosecution must disclose exculpatory facts to the accused, who may summon witnesses and confront those against him, but hearsay may also be admitted under restricted conditions. As in civilian courts, complex procedures governing classified evidence seem, on paper, to protect the accused against conviction by secret information he cannot challenge. It remains to be seen how effective that protection will be in practice.

Some judges and some military lawyers who appear on both sides have shown impressive legal ethics and courage to work for justice within a system “flawed in both design and execution,” as General Baker, the Chief Defense Counsel, put it in a 2006 speech at Georgetown. “Put simply, the military commissions in their current state are a farce,” Baker said. “Instead of being a beacon for the rule of law, the Guantánamo Bay military commissions have been characterized by delay, government misconduct and incompetence, and even more delay.” The rest of his address is a point-by-point indictment of the system and its government practitioners.

No system should depend entirely on the goodness of its participants. Our history contains no guarantee that one or another citizen who rises to authority will wield the immense power of the state with wisdom, fairness, and humaneness. Fragmentation of power, as with a judiciary independent of the executive branch, is the most reliable restraint.

In his speech, General Baker quoted Justice Robert Jackson, whose opening argument as chief prosecutor at Nuremberg contained this admonition on trying our enemies: “We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well.”

[lawinformation]

Termination of Parental Rights and an MSA in Texas

On the off chance that you have require a best reasonable Texas Divorce Law encounter, Termination of Parental Rights and an MSA in Texas with the immense procedure!

Houston Family Lawyer: A while back, a friend and fellow attorney had asked me some questions regarding terminating parental rights on a father. My friend’s potential client, the father, had a one-night stand that resulted in a pregnancy. The mother was planning on going forward and having the child. The father was not interested in being a father and the mother was not interested in his being the father.

We discussed that the prevailing wisdom among many Texas family law attorneys is that generally it is not easy to terminate the parental rights of a father unless someone else is interested in stepping up to take on that role.

Recently my friend revisited the topic with me as the birth of the child was approaching and the sentiment of both the mother and the father had not changed. In our discussion, the topic was brought up on whether agreeing to relinquish parental rights in a mediated settlement agreement (MSA) would make a difference. In today’s blog, we will explore the answer to that question.

IN RE STEPHANIE LEE

Divorce Lawyer Houston: In a recent blog, we discussed how in divorces, most circumstances-mediated settlement agreements cannot be altered by judges as a result of a Houston case In re Stephanie Lee. Ultimately in that case, the Supreme Court of Texas was called on to decide whether or not the agreement was valid.

The Texas Supreme Court’s Decision

The Texas Supreme Court was in a position to make a decision on essentially which is more important:

a judge’s ability to protect what he or she believes is the best interests of the child whom their court has jurisdiction over, or the widely-held belief that once parties entered into a mediated settlement agreement, no party and the court itself should not be able to interfere with the agreement absent those two conditions outlined earlier in this blog post. Bottom line for the parties involved with this case was that their mediated settlement agreement was valid and the Trial Court was ordered to abide by the decision of the parties and sign off on the order that was drafted based on that settlement agreement.

As a result of In re Stephanie Lee, mediated settlement agreements were strengthened when it came to divorces and child custody decisions.

What about an MSA when it comes to Termination of Parental Rights?

Divorce Lawyer Houston: My friend and I discussed the question of, in light of “In re Stephanie Lee," does a judge have the discretion to not approve a termination when agreed to in a MSA?

On its face, the answer would appear to be no, but we would need to do further research. One thing we discussed was that the court my friend’s case landed in would make a difference. I told him I knew of at least one judge who had granted a divorce based on an MSA and then reopened the case on his own motion.

Texas Family Lawyers Discussion on Facebook

My friend posed his question to a Texas Family Lawyers group that we are both members of on Facebook.

Most of the family law attorneys on that group that responded to his discussion rehashed much of what my friend and I had already discussed regarding the prevailing wisdom based on the Texas Family Code and missed the point of the MSA.

However, when I chimed in and clarified my friend’s question, we got a potentially useful response from a former judge in Harris County. She mentioned that we should take a look at the case “498 S.W.3d 624, 626 (Tex. App. 2016).”

IN RE MORRIS In this case, a father asked the court to terminate the rights of the mother. This termination of the mother’s rights was agreed upon in a mediated settlement agreement.

The 309th District Court, Harris County, refused to render judgment on the mediated settlement agreement (An interesting piece of trivia is that the 309TH is the same court that In re Stephanie Lee originated).

309TH Trial Court’s Decision

Houston Divorce: The Court having reviewed the pleadings and the statutory requirements under:

Texas Family Section 153.0071(d), and Texas Family Code Section 161 found that the statutory requirements for parental termination had not been met by the Mediated Settlement Agreement and denied the entry of the Mediated Settlement Agreement.

The court further found that granting an order based on the Mediated Settlement Agreement would serve to circumvent well-established, mandatory procedures and rules, and interfered with the court’s obligation to comply with the mandatory provisions of said statutes.

The father filed petition for writ of mandamus, seeking to compel the district court to vacate its order denying rendition of judgment in accordance with the mediated settlement agreement.

The Decision of the Court of Appeals of Texas, Houston (14th District)

Houston Family Lawyers: The Houston Court of Appeals acknowledged that this was the first time it had addressed the issue of termination of parental rights based on an MSA and whether an MSA precludes a trial court from refusing to render judgment based on the plaintiff's failure to prove by clear and convincing evidence that termination would be in the child's best interest.

The court concluded that:

a mediated settlement agreement does not preclude the trial court from making a best-interest determination under section 161.001(2) of the Texas Family Code and that the relator has not shown the trial court clearly abused its discretion. As such, the Court denied mandamus relief.

Texas Family Code. Section 161.001(1)

This section of the family code provides that a trial court may terminate the parent-child relationship if the court finds by clear and convincing evidence that:

the parent has executed “an unrevoked or irrevocable affidavit of relinquishment of parental rights and termination is in the best interest of the child.” In Re A.L.H.,468 S.W.3d 738, 741–42 (Tex.App.–Houston [14th Dist.] 2015

In the case In Re A.L.H, the court:

Houston Family Law Attorney: recognized that an affidavit of relinquishment suffices as evidence on which the trial court may make a finding that termination of the relinquishing parent's rights is in the child's best interest. But

the court has not held that an affidavit of relinquishment requires the trial court to find that terminating the parent-child relationship would be in the child's best interest or that an affidavit of relinquishment by itself proves that fact as a matter of law. More Evidence is Needed

In the case In re Morris, the court went on to say what additional evidence could have been provided to the trial court to demonstrate that termination was in the best interest of the child:

Additional facts in the Affidavit Testimony from the father Testimony that the mother had executed an unrevoked affidavit as provided by Texas Family Code 161 Texas Family Code 153.0071(e) and In re Stephanie Lee

The Court in In re Morris discussed that the supreme court in Lee did not address whether:

section 153.0071(e) applies to a suit to terminate a parent-child relationship brought under Chapter 161 or whether a mediated settlement agreement in a termination suit relieves the plaintiff of the burden of proving by clear and convincing evidence that termination would be in the child's best interest, as required by section 161.001(2). No Texas court appears to have answered these questions.

The court went on to further discuss that conservatorship is different from termination ... Continue Reading

[vjmglobal]

Once the application has been processed and order passed, plain effect of same can’t be avoided

Held by Hon’ble Allahabad High court

In the matter of SAVISTA GLOBAL SOLUTIONS PRIVATE LIMITED VERSUS UNION OF INDIA AND 5 OTHERS (Writ petition No. 113 of 2021)

The petitioner filed a manual refund application on 27.09.2019. The respondent processed the refund application and issued a final order on 06.01.2020 approving the refund amount. However, since the refund was not disbursed, therefore, the applicant filed a petition before the Hon’ble High Court seeking mandamus to issue refund amount and interest thereon @ 6% from the date of expiry of 60 days from date of filing of refund application.

The respondent contended that as per Circular No. 125/44/2019-GST dated 18.11.2019, the refund module for online filing of refund application has been deployed on GST portal with effect from 26.09.2019. Therefore, refund applications and further processing should be done through online mode only. Therefore, no interest is payable and a refund will be provided only after a refund claim is filed online.

Hon’ble HC held that Rule 97A provides that any reference to electronic filing of application includes manual filing. Circular can’t override or neglect the effect of Rule 97A.  It is a settled principle in law that the delegated legislation would stand on a higher pedestal over pure administrative instruction. Further, a circular was issued after the date of filing of refund application. Also, the respondent has processed the refund application and passed the order. Once the application had been processed and or order passed, which has attained finality, the respondents cannot escape the plain effect of the same.

Therefore, the respondent is liable to pay a refund amount along with interest.

1. Brief facts of the case

M/s Savista Global Solutions Private Limited (“The Petitioner”) was having a refund pertaining to the month of July, 2019 of INR 1,28,50,535/-.

The petitioner filed an application seeking refund on 27.09.2019. In pursuance of Rule 97A of CGST Rules, 2017, application for seeking refund was filed manually.

The respondent passed an order of granting refund on 06.01.2020. The order was not passed within a period of 60 days from the date of filing of refund application in accordance with Section 54(7) of CGST Act, 2017.

Therefore, the petitioner also requested for interest @ 6%p.a. From the date of expiry of 60 days from the date of filing of refund application till the date of actual payment of refund in accordance with Section 56 of CGST Act, 2017.

Till the date of filing the petition, neither amount of refund awarded under the contract nor any interest has been paid to the petitioner. Therefore, the petitioner filed a petition before Hon’ble Allahabad High Court seeking mandamus*.

*Mandamus writ is an order from a court to an inferior government official ordering the government official to properly fulfill their official duties or correct an abuse of discretion.

2. Relevant Legal Extracts

Relevant extract of the statute is reproduced below for ready reference:

Section 56 of CGST Act 2017: Interest on delayed refunds.

“If any tax ordered to be refunded under sub-section (5) of section 54 to any applicant is not refunded within sixty days from the date of receipt of an application under sub-section (1) of that section, interest at such rate not exceeding six percent. as may be specified in the notification issued by the Government on the recommendations of the Council shall be payable in respect of such refund from the date immediately after the expiry of sixty days from the date of receipt of an application under the said sub-section till the date of refund of such tax:

…”

Rule 97A of the CGST rules 2017:Manual filing and processing

“97A-Notwithstanding anything contained in this Chapter, in respect of any process or procedure prescribed herein, any reference to electronic filing of an application, intimation, reply, declaration, statement or electronic issuance of a notice, order or certificate on the common portal shall, in respect of that process or procedure, include manual filing of the said application, intimation, reply, declaration, statement or issuance of the said notice, order or certificate in such Forms as appended to these rules.”

Circular No. CBEC-20/16/04/18-GST dated 18th November, 2019 issued a fully electronic refund process through FORM GST RFD-01 and single disbursement.. Relevant extract of Para 2 of circular is reproduced below:

“The necessary capabilities for making the refund procedure fully electronic, in which all steps of submission and processing shall be undertaken electronically, have been deployed on the common portal with effect from 26.09.2019. Accordingly, the Circulars issued earlier laying down the guidelines for manual submission and processing of refund claims need to be suitably modified and a fresh set of guidelines needs to be issued for electronic submission and processing of refund claims….”

3. Submission of the Petitioner

The petitioner filed a petition contenting following points:

Amount as approved under order passed on 06.01.2020 is refundable to the petitioner for the month of July, 2019.

As per plain language of the statute, the interest is also payable to the Petitioner @6% from 27.11.2019  (i.e., 60 days from date of filing of refund application) onwards.

4. Contention of the Respondent

In the exchange of pleadings the Respondent contended the following:

It has approved refund on 06.01.2020 and forward filed for actual payment on 15.01.2020. Therefore, no liability arises for payment for interest.

Further, another respondent contended that application for filing refund application and the above mentioned forwarding letter by another respondent was moved through physical mode after 26.09.2019.

As per circular No. CBEC-20/16/04/18-GST dated 18.11.2019, such refund application and forwarding letter could not be processed.

After activation of refund module on GST portal on 26.09.2019, the refund application and further processing should have been made through online mode only and such deficiency was intimated to another respondent earlier also.

Therefore, no interest is due to the petitioner and also the refund will be paid only after the petitioner and the respondent will lodge the particulars of the refund and the refund order on the GST portal, through online mode, only.

5. Analysis and findings of Hon’ble Allahabad High Court

In the given case, the application filed by petitioner on 17-9-2019 to the respondent for its refund due from July 2019.

According to Rule 54(7) of the CGST Rules 2017, the said application should have been processed and order passed within 60 days, but in the given case the 60 days have been passed and no order passed by respondent.

Since, the order has not been passed by the respondent within stipulated time, by virtue of section 56 of CGST Act 2017, interest at the rate of 6% is levied from the date of expiry of 60 days till the payment of refund is done.

Further, manual filing of refund applications do not bring any disentitlement either toward payment of refund amount or toward payment of interest thereon. Contention of respondent of online filing of refund application and refund order be uploaded on GST portal is an eye wash.

Click on this link to be continued: click here

[homeoflearning1]

With reference to Jurisdiction of High Courts, Note on Power to issue Writs

With reference to Jurisdiction of High Courts, Note on Power to issue Writs

Power to issue Orders or Writs: All the High Courts have the power to issue Writs to a person or an official. The Writs comprise the writs of Habeas Corpus, Mandamus, Prohibition, Quo Warranto, and Certiorari. These Writs are issued to protect the Fundamental Rights or for any other purpose. YOU MAY READ The Supreme Court The Supreme Court is the head of the Indian judiciary and supervises the…