Case Law Details
Format of writ filed by petitioner Abhishek Shukla in Supreme Court for Exchange of his old demonetized notes with new currency which were seized before demonetization and returned him back post demonetization as RBI has vide letter dated 7.3.2017 declined the request of the petitioner to change the currency notes by citing the reason that RBI does not have any power to accept SBNs for deposit/ exchange.
Format of Petitioned filed with Supreme Court is as follows :-
MOST RESPECTFULLY SHOWETH : –
1. Petitioner is compelled to file the present writ petition under Article 32 of the Constitution of India for issuance of Writ of Mandamus or any other appropriate writ, order or direction for quashing and setting aside the Ordinance dated 30th December 2016 issued by the respondent no. 1 as it is contrary to the earlier Notification dated 8.11.2016 in the wake of demonetisation which has directly affected the petitioner as he was not able to deposit her specified Bank notes of 500/- and 1000 on or before 30.12.2016.
1a The petitioner had personally visited the RBI Office, Delhi, however the respondent no. 3/ RBI declined to old specified notes contrary to earlier notification dated 8.11.2016.
2. QUESTIONS OF LAW : –
The following substantial questions of law arise for kind consideration of this Honourable Court: –
i) Whether the ordinance dated 30.12.2016 published by the respondent no.2 is contrary to the notification dated 08.11.2016 and to the speech of Honourable Prime Minister dated 08.11.2016, which has introduced the system of demonetisation or note ?
ii) Whether the ordinance dated 30.12.2016 published by the respondent no. 2 fulfils the criteria of legitimate expectation of citizen of India being completely contradictory of earlier notification dated 08.11.2016 and of speech of Prime Minister ?
iii) Whether the ordinance dated 30.12.2016 creates class among the classes and is in complete violation of Article 14 of Constitution of India and also in contravention of Article 21 of Constitution of India as it provides for Criminal actions which regulates the right to life with dignity or not ?
3. The brief facts and circumstances giving rise to the present petition may briefly be enumerated as here under :-
i) That petitioner was made a co-accused in an FIR bearing No. 20/ 2013 P.S. Special Cell, New Delhi.
ii) That in the said FIR case the petitioner moved an application seeking discharge before the Ld. Trial Court and vide order dated 25.7.2015 the Ld. Trial Court honourably discharged the petitioner from all the charges. As such the petitioner was exonerated from the criminal proceedings.
iii) It is pertinent to state here that a sum of Rs. 5.5 lacs were seized from the petitioner vide seizure memo dated
25.9.2013.
iv) It is submitted that the said amount was released to the petitioner pursuant to the order dated 1.2.2017 by the
Investigation Officer. True copy of the order dated 1.2.2017 is annexed herewith as ANNEXURE P-1.
v) That thereafter the petitioner approached the Reserve Bank of India for exchange of old currency notes in view of demonetisation of the old currency notes by the Union of India.
vi) That RBI vide letter dated 7.3.2017 declined the request of the petitioner to change the currency notes by citing the reason that RBI does not have any power to accept SBNs for deposit/ exchange- except from tenderers as permitted to avail the facility during grace periods (Indian Citizens who were outside India between Nov. 9 2016 to Dec. 30, 2016). True copy of the letter dated 7.3.2017 is annexed herewith as ANNEXURE P-2.
vii) The Honourable Prime Minister of India has announced in his address to the nation on November 8, 2016, on the national network, Doordarshan, Akashwani and other mediums of telecommunications about the withdrawal of legal tender of Specified bank Notes of 500 and 1000 and gave time till 30th December 2016 to deposit the old currency notes with the banks. However, in the same speech the Honourable PM also stated that ‘any’ person who is not able to deposit the said money or exchange the same in a bank would have the option to do so with the specified office of Reserve Bank of India till 31.3.2017.
viii) That after announcement of above news by the Honourable Prime Minister of India, respondent no.1 has published a gazette notification vide its no.2652 dated 08.11.2016 in Gazette of India Clause 2(ix0 of that notification states that
any person who is unable to exchange or deposit the specified bank notes in their bank accounts on or before the
30th December, 2016, shall be given an opportunity to do so at specified offices of the Reserve Bank or such other facility until a later date as may be specified by it. A true copy of gazette notification vide its no.2652 dated 08.11.2016 published in Gazette of India is annexed herewith and marked as ANNEXURE P-3 at pages No. to ….
ix) That the citizen of the country has faced many issues while depositing currency of denomination of Rs. 500/- and 1000/- in bank due to long queue in their banks. Old persons and ladies were faced many problems to deposit as they had not being provided special mechanism to facilitate the deposit.
x) That Legislative Department of the Ministry of Law and Justice came out with the Specified Bank Notes (Ceasation of Liability) Ordinance, 2016 which irrationally created a separate class of Non Resident Indians and people not in India till 30th of December and reserved only for them the right to deposit the Specified Bank Notes with the Reserve Bank of India. A true copy of Specified Bank Notes (Cessation of Liability) Ordinance 2016 dated 30.12.2016 is annexed herewith and marked as ANNEXURE P-4 at pages … to …
xi) That the Ministry of Finance Government of India has published circular No. 60/ 2016 in which the dates of deposition of money has been highlighted as 31.3.2017 for those citizens who were not in India between 09.11.2016 to 30.12.2016.
xii) The petitioner came across various news reports published in newspaper and shown on different news channels that common people protested outside the Reserve Bank of India office at Fort on Tuesday 4th of January 2017 after the respondent no.1 RBI refused to exchange and accept demonetised currency notes of Rs. 1000/- and Rs. 500, citing a December 30th Ordinance which ended the RBI’s liability on these notes.
4. The petitioner has not filed any other similar petition seeking similar relief before this Honourable Court or any other High Court.
5. The petitioner has got no other alternate or efficacious remedy except to file the present writ petition before this Honourable Court by invoking Article 32 of the Constitution of India. The petitioner is filing the present writ petition on the following amongst other Grounds without prejudice to each other :-
GROUNDS : –
A. Because the impugned letter dated 7.3.2017 issued by the RBI/ Respondent no. 3 whereby declining the request of the petitioner to issue new currency notes in lieu of the old currency notes, is bad in law and facts.
B. The respondents by the acts and conducts are violating the fundamental rights granted to the petitioner.
C. Because in terms of Section 4(1) of the Specified Bank Notes (Cessation of Liabilities) Ordinance, 2016 of the Government of India dated December 30, 2016 and their Notification S.O. 4251(E) dated December 30, 2016 there under, the captioned facility has been formulated by the Reserve Bank to afford an opportunity to those Indian Citizens who could not avail facilities of exchange of SBNs under the earlier facility, as they were not present in the country during November 9, 2016 to December, 30, 2016. As such when the Reserve bank of India has given an opportunity to the said category of people, why not the petitioner may be given an opportunity as the entire amount of Rs. 5.5 lacs was confiscated by Delhi Police and the said amount was lying in the malkhana without any default on the part of the petitioner. Even otherwise, it was the responsibility of Delhi Police as the amount was lying in Malkhana.
D. Because the last notification issued by the Government is a breach of assurance given by the Prime Minister and by the Respondent no. 3/ RBI. As P.M. speech on 9.11.2016, announcing the demonetisation policy, and a subsequent notification that promised that people would be able to deposit the old notes till March 31, 2017. As such, the said fact of Government was against the legitimate expectation that certain categories of people had with the Government and the same was not unfounded as being based on Government’s own notification. And in ordinance in
December 2016, the Government has failed to mention about it.
E. Because the ordinance dated 30.12.2016 published by the respondent no.2 is contrary to the notification dated
08.11.2016 and to the speech of Honourable Prime Minister dated 08.11.2016.
F. Because the ordinance dated 30.12.2016 published by the respondent no. 2 does not fulfils the criteria of legitimate expectation of citizen of India being completely contradictory of earlier notification dated 08.11.2016 and of speech of Prime Minister.
G. Because the ordinance dated 30.12.2016 creates class among the classes and is in complete violation of Article 14 of Constitution of India and also in contravention of Article 21 of Constitution of India as it provides for Criminal actions which regulates the right to life with dignity.
H. Because the Ordinance dated 30.12.2016 is contrary to the earlier Notification dated 8th November 2016 and hence people are facing many day to day problems and it with unambiguous certainty is a blatant violation of their rights. It is needed that the Government authorities together need to clarify with clarify as to what shall be followed and which currency notes shall be honoured and considered as legal tender.
I. Because the incident is a breach of trust in a larger sense committed by the Government of India and its governing arms as they issued a Notification dated 8th November 2016 which had assured the people that if on account of some
reason, any person who is unable to exchange or deposit the specified bank notes in their bank accounts on or before the 30th December, 2016, shall be given an opportunity to do so at specified offices of the Reserve Bank or such other facility until a later date as may be specified by it. A similar statement was made by the Prime Minister of India in his
address to Nation while declaring the decision of demonetisation on 8th of November 2016.
J. Because the respondents are collectively liable for destroying the legitimate expectation of the public at large. The constitutional principle of rule of law, which runs through the entire fabric of our Constitution, requires regularity, predictability and certainty in the Government’s dealings with the public. In Supreme Court Advocates –on – Record
Association Vs. Union of India : (1993) 4 SCC 441 at page 703; the Supreme Court has taken the view that due consideration of every legitimate expectation of the public in the decision-making process is a requirement of the rule of non- arbitrariness. However, the prevailing scenario has shaken the confidence of the public in the Government, which has taken the ordinance route to go back on its guarantee failing to live up to the standard of governance envisaged in a democracy, which requires adherence to the rule of law. Recently, in Krishna Kumar Singh & Anr. Vs. State of Bihar & Ors., The Supreme Court placed restrictions on the powers of the Government to legislate through ordinances to avoid blatant misuse of the Constitutional power.
K. Because the action of the respondents is violation of the principles of natural justice and are totally malafide, arbitrary and illegal.
L. Because there is violation of Article 14&21 of the constitution of India and there is discrimination against the petitioner. That the petitioner aggrieved of the totally arbitrary and illegal actions of the respondents is constrained to approach this Honourable Court by way of the present petition.
PRAYER :
In view of the facts and circumstances of the case, it is most respectfully prayed that this Honourable Court may graciously be pleased to : –
a) Issue a writ of mandamus or any other appropriate writ order or direction to quash and set aside the Ordinance dated 30th December 2016 issued by the respondent no. 1 as it is contrary to the earlier Notification dated 8.11.2016 AND / OR
b) Issue an appropriate writ, direction or order including a writ, direction or order in the nature of mandamus commanding the respondents herein to forbear from giving effect to the ordinance dated 30th December 2016.
c) Pass such order and further order(s) as this Honourable Court may deem fit and proper in the facts and circumstances of the present case.
AND FOR THIS ACT OF KINDNESS THE PETITIONER SHALL EVER REMAIN BOUND TO PRAY
Filed by
(Abhinav Ramkrishna)
Advocate-on-Record
Advocate for the Petitioner
DRAWN ON: .03.2017
FILED ON: .03.2017
PROFORMA FOR FIRST LISTING
Section –IVB
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1. Nature of matter : Civil
2. (a) Petitioner – Abhishek Shukla
(b) e-mail ID N.A.
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3. (a) Respondent – Union of India & Ors.
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7. Criminal matters –
a) Whether accused/ convict has surrendered- NA
b) FIR No. – N.A
c) Police Station – N.A.
d) Sentence Awarded – N.A.
e) Sentence Undergone – N.A.
8. Land Acquisition Matters.
a) Date of Section 4 Notification – N.A.
b) Date of Section 6 Notification – N.A.
c) Date of Section 17 notification – N.A.
9. Tax matters: State the tax effect – N.A.
10. Special Category (First petitioner/ appellant only) N.A.
11. Vehicle Number (in case of motor Accident Claim matters): N.A.
12. Decided cases with citation :
Dated : .03.2017
Advocate for the petitioner
LIST OF DATES & EVENTS
Petitioner is compelled to file the present writ petition under Article 32 of the Constitution of India for issuance of Writ of Mandamus or any other appropriate writ, order or direction for quashing and setting aside the Ordinance dated 30th December 2016 issued by the respondent no.1 as it is contrary to the earlier Notification dated 8.11.2016 in the wake of demonetisation which has directly affected the petitioner as he was not able to deposit her specified Bank notes of 500/- and 1000 on or before 30.12.2016.
The petitioner is constrained to approach this Honourable Court by way of present writ petition under Article 32 of Constitution of India instead of exhausting the remedy under Article 226 of Constitution of India in light of order dated 16.12.2016 passed by this Honourable Court in the case of Vivek Narayan Sharma Vs Union of India (WP © 906 of 2016). Relevant paragraph of the order dated 16.12.2016 is reproduced herein.
“We further direct that no other court shall entertain, hear or decide any writ petition/ proceedings on the issue or in relation to or arising from the decision of the Government of India to demonetise the old notes of Rs. 500/- and Rs. 1000/- as the entire issue in relation thereto is pending consideration before this Court in the present proceedings”.
2013- The petitioner was made a co-accused in an FIR bearing No.20/ 2013 P.S. Special Cell, New Delhi. In the said FIR case the petitioner moved an application seeking discharge before the Ld. Trial Court.
25.7.2015- Vide order dated 25.7.2015 the Ld.Trial Court honourably discharged the petitioner from all the charges. As such the petitioner was exonerated from the criminal proceedings.
25.9.2013- A sum of Rs. 5.5 lacs were seized from the petitioner vide seizure memo dated 25.9.2013.
8.11.2016- The Honourable Prime Minister of India has announced in his address to the nation on November 8, 2016, on the national network, Doordarshan, Akashwani and other mediums of telecommunications about the withdrawal of legal tender of Specified bank Notes of 500 and 1000 and gave time till 30th December 2016 to deposit the old currency notes with the banks. However, in the same speech the Honourable PM also stated that ‘any’ person who is not able to deposit the said money or exchange the same in a bank would have the option to do so with the specified office of Reserve Bank of India till 31.03.2017. That after announcement of above news by the Honourable Prime Minister of India, respondent no.1 has published a gazette notification vide its no.2652 dated 08.11.2016 in Gazette of India Clause 2(ix) of that notification states that any person who is unable to exchange or deposit the specified bank notes in their bank accounts on or before the 30th December, 2016, shall be given an opportunity to do so at specified offices of the Reserve Bank or such other facility until a later date as may be specified by it.
30.12.2016- The Legislative Department of the Ministry of Law and Justice came out with the Specified Bank Notes (Ceasation of Liability) Ordinance, 2016 which irrationally created a separate class of Non Resident Indians and people not in India till 30th of December and reserved only for them the right to deposit the Specified Bank Notes with the Reserve Bank of India.
The Ministry of Finance Government of India has published circular No. 60/ 2016 in which the dates of deposition of money has been highlighted as 31.3.2017 for those citizens who were not in India between 09.11.2016 to 30.12.2016.
1.2.2017- The said amount was released to the petitioner pursuant to the order dated 1.2.2017 by the Investigation Officer.
2017- Thereafter the petitioner approached the Reserve Bank of India for exchange of old currency notes in view of demonetisation of the old currency notes by the Union of India.
7.3.2017- The RBI vide letter dated 7.3.2017 declined the request of the petitioner to change the currency notes by citing the reason that RBI does not have any power to accept SBNs for deposit / exchange – except from tenderers as permitted to avail the facility during grace periods (Indian Citizens who were outside India between Nov. 9 2016 to Dec. 30, 2016).
.03.2017 Hence the instant Writ Petition.
New Delhi
Dated : .03.2017
